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





                                  


 
  THE NEXT FIFTY YEARS OF THE CLEAN WATER ACT: EXAMINING THE LAW AND 
                   INFRASTRUCTURE PROJECT COMPLETION

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

                                (118-17)

                                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

                               __________

                              MAY 16, 2023

                               __________

                       Printed for the use of the
             Committee on Transportation and Infrastructure
             
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     Available online at: https://www.govinfo.gov/committee/house-
     transportation?path=/browsecommittee/chamber/house/committee/
                             transportation
                             
                             
                          ______

             U.S. GOVERNMENT PUBLISHING OFFICE 
 56-144 pdf        WASHINGTON : 2024                           
                             
                             
                             

             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, Vice 
Chris Pappas, New Hampshire          Chairman
Seth Moulton, Massachusetts          Derrick Van Orden, Wisconsin
Troy A. Carter, Louisiana            Brandon Williams, New York
Eleanor Holmes Norton,               Mike Collins, Georgia
  District of Columbia               Mike Ezell, Mississippi
Rick Larsen, Washington (Ex Officio) John S. Duarte, California
                                     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...................     9
    Prepared statement...........................................    11
Hon. Rick Larsen, a Representative in Congress from the State of 
  Washington, and Ranking Member, Committee on Transportation and 
  Infrastructure, opening statement..............................    17
    Prepared statement...........................................    18

                               WITNESSES

Andrea J. Travnicek, Ph.D., Director, North Dakota Department of 
  Water Resources, oral statement................................    20
    Prepared statement...........................................    22
Hon. Serena Coleman McIlwain, Secretary, Maryland Department of 
  the Environment, oral statement................................    23
    Prepared statement...........................................    25
Mickey Conway, Chief Executive Officer, Metro Water Recovery, 
  Denver, Colorado, on behalf of the National Association of 
  Clean Water Agencies, oral statement...........................    27
    Prepared statement...........................................    29
Brandon Farris, Vice President, Energy and Resources Policy, 
  National Association of Manufacturers, oral statement..........    32
    Prepared statement...........................................    33

                       SUBMISSIONS FOR THE RECORD

Submissions for the Record by Hon. David Rouzer:
    Statement of the National Mining Association.................     4
    Letter of May 15, 2023, to Hon. David Rouzer, Chairman, and 
      Hon. Grace F. Napolitano, Ranking Member, Subcommittee on 
      Water Resources and Environment, from Amanda E. Eversole, 
      Executive Vice President and Chief Advocacy Officer, 
      American Petroleum Institute...............................     6
    Letter of May 15, 2023, to Hon. David Rouzer, Chairman, 
      Subcommittee on Water Resources and Environment, from 
      Michael W. Johnson, President and Chief Executive Officer, 
      National Stone, Sand & Gravel Association..................     8
Submissions for the Record by Hon. Grace F. Napolitano:
    Maps.........................................................    12
    Letter of May 16, 2023, to Hon. David Rouzer, Chairman, and 
      Hon. Grace F. Napolitano, Ranking Member, Subcommittee on 
      Water Resources and Environment, from Jim Murphy, Director, 
      Legal Advocacy, National Wildlife Federation...............    13

                                APPENDIX

Questions to Andrea J. Travnicek, Ph.D., Director, North Dakota 
  Department of Water Resources, from:
    Hon. David Rouzer............................................    65
    Hon. Grace F. Napolitano.....................................    66
Questions to Hon. Serena Coleman McIlwain, Secretary, Maryland 
  Department of the Environment, from:
    Hon. David Rouzer............................................    67
    Hon. Grace F. Napolitano.....................................    68
    Hon. Frederica S. Wilson.....................................    71
    Hon. Garret Graves...........................................    73
Questions to Mickey Conway, Chief Executive Officer, Metro Water 
  Recovery, Denver, Colorado, on behalf of the National 
  Association of Clean Water Agencies, from:
    Hon. David Rouzer............................................    73
    Hon. Grace F. Napolitano.....................................    75
Questions to Brandon Farris, Vice President, Energy and Resources 
  Policy, National Association of Manufacturers, from:
    Hon. David Rouzer............................................    77
    Hon. Doug LaMalfa............................................    77




                              May 12, 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 ``The Next Fifty Years of 
the Clean Water Act: Examining the Law and Infrastructure 
Project Completion''
_______________________________________________________________________


                               I. PURPOSE

    The Subcommittee on Water Resources and Environment of the 
Committee on Transportation and Infrastructure, will meet on 
Tuesday, May 16, 2023, at 10:00 a.m. ET in 2167 of the Rayburn 
House Office Building to receive testimony on ``The Next Fifty 
Years of the Clean Water Act: Examining the Law and 
Infrastructure Project Completion.'' At the hearing Members 
will receive testimony from witnesses representing the National 
Association of Clean Water Agencies (NACWA), the National 
Association of Manufacturers (NAM), the state of North Dakota, 
and the state of Maryland. The hearing will examine the Clean 
Water Act (CWA), and how to modernize the CWA to protect water 
quality, while ensuring the completion of projects, reducing 
supply chain challenges, and promoting commerce.

                             II. BACKGROUND

CWA JURISDICTION

    The Subcommittee on Water Resources and Environment 
(Subcommittee) maintains jurisdiction over several agencies, 
including the Environmental Protection Agency (EPA) and the 
United States Army Corps of Engineers (Corps). Specifically, 
the Subcommittee in its capacity overseeing laws governing 
water quality and wastewater infrastructure, holds jurisdiction 
over EPA and the Corps as they regulate activities related to 
water quality. Additionally, the Subcommittee maintains sole 
jurisdiction of the CWA, the Federal Government's primary 
statutory tool for protecting the water quality of the Nation's 
navigable waters.\1\
---------------------------------------------------------------------------
    \1\ H. Comm. on Transp. & Infrastructure, Jurisdiction and 
Activities of the Subcomm. on Water Resources and Environment, 118Th 
Cong., (2023) (on file with Comm.) [hereinafter Jurisdiction and 
Activities Report].
---------------------------------------------------------------------------
    The CWA provides a major Federal-state program as the 
principal law governing water quality of the Nation's surface 
waters.\2\ Congress enacted the 1972 amendments to the Federal 
Water Pollution Control Act, commonly referred to as the CWA, 
with the objective to ``restore and maintain the chemical, 
physical, and biological integrity of the Nation's waters.'' 
\3\ To achieve this objective, two goals were established: (1) 
to eliminate pollutant discharge into navigable waters by 1985, 
and (2) where possible, to ensure water quality that is 
``fishable'' and ``swimmable'' by 1983.\4\
---------------------------------------------------------------------------
    \2\ Id.
    \3\ CWA, Pub. L. 92-500, 86 Stat. 816 [hereinafter CWA].
    \4\ Laura Gatz, Cong. Rsch. Serv. (RL30030), Clean Water Act: A 
Summary of the Law, (Updated Oct. 18, 2016), available at https://
www.crs.gov/Reports/RL30030 [hereinafter CRS Report RL30030].
---------------------------------------------------------------------------
    The CWA consists of two major parts: (1) the authorization 
of financial assistance for construction of municipal 
wastewater treatment plants, and (2) the regulatory 
requirements that apply to those who discharge into navigable 
waters, including industrial and municipal actors.\5\ Planning, 
financial, and technical assistance for various regions and 
issues are also addressed.\6\ This SSM focuses primarily on key 
sections of the CWA that have produced substantial interest for 
legislative action related to expediting the completion of 
infrastructure projects.
---------------------------------------------------------------------------
    \5\ Id.
    \6\ Id.
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CWA REGULATORY AUTHORITY BACKGROUND

    Title III of the CWA establishes the authority for the 
technological and water quality-based effluent limitation 
guidelines that must be abided by point source dischargers.\7\ 
Whereas Title III of the CWA largely focuses on the creation of 
water quality guidelines and limitations, Title IV primarily 
deals with application of the regulatory program, informed by 
the guidelines created pursuant to Title III, through which 
dischargers must receive permits or certifications.\8\
---------------------------------------------------------------------------
    \7\ See CRS Report RL30030, supra note 4; see also CWA, supra note 
3, Sec. 301-320.
    \8\ See CRS Report RL30030, supra note 4; see also CWA, supra note 
3, Sec. 401, 402, 404.
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    In order to achieve its objectives, the CWA is predicated 
on the principle that discharges into waters of the United 
States are only lawful if authorized by a permit.\9\ Therefore, 
the application of various CWA components require a regulatory 
program. While certain regulatory programs under the law may 
only be carried out by the Federal Government, through either 
EPA or the Corps, certain responsibilities can be assumed by 
states approved by EPA.\10\
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    \9\ See CRS Report RL30030, supra note 4.
    \10\ See e.g. CWA, supra note 3, Sec. Sec.  401, 402, 404.
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CWA ACTION IN THE 118TH CONGRESS

    The Committee on Transportation and Infrastructure 
(Committee) has already acted on a number of CWA-related issues 
this Congress. For example, the Committee took actions in 
response to the Biden Administration's definition of waters of 
the United States (WOTUS), which governs the application of CWA 
programs.\11\ Following the release of EPA and the Corps' final 
``Revised Definition of the `Waters of the United States' '' 
rule on December 30, 2022, the Subcommittee held a hearing and 
received testimony from interested stakeholders on February 8, 
2023.\12\ In response to the Biden Administration's revised 
WOTUS definition, Chairman Sam Graves and Water Resources and 
Environment Subcommittee Chairman David Rouzer introduced H.J. 
Res. 27, Providing for congressional disapproval under chapter 
8 of title 5, United States Code, of the rule submitted by the 
Department of the Army, Corps of Engineers, Department of 
Defense and the Environmental Protection Agency relating to 
``Revised Definition of `Waters of the United States' ''.\13\ 
The Committee favorably reported H.J. Res. 27 to the House on 
February 28, 2023.\14\ The resolution then passed the House on 
March 9, 2023, and the Senate on March 29, 2023. H.J. Res. 27 
was then vetoed by President Biden, after which the House voted 
and failed to override the veto.\15\
---------------------------------------------------------------------------
    \11\ See generally Laura Gatz & Kate R. Bowers, Cong. Rsch. Serv. 
(R46927), Redefining Waters of the United States (WOTUS): Recent 
Developments, (Updated July 8, 2022), available at https://www.crs.gov/
reports/pdf/R46927/R46927.pdf [hereinafter CRS Report R46927].
    \12\ See Revised definition of ``waters of the United States'' 
Final Rule, 88 Fed Reg. 3004 (Jan. 18, 2023); See also Stakeholder 
Perspectives on the Impacts of the Biden Administration's Waters of the 
United States (WOTUS) Rule: Hearing Before the Subcomm. on Water 
Resources and Environment of the H. Comm. on Transp. and 
Infrastructure, 118th Cong. (2023).
    \13\ H.J. Res. 27, 118th Cong. (2023).
    \14\ Id.
    \15\ Id.
---------------------------------------------------------------------------
    Additionally, on February 28, 2023, the Committee favorably 
reported H.R. 1152, the Water Quality Certification and Energy 
Project Improvement Act to the House.\16\ The goal of this 
legislation is to promote the development of the Nation's 
infrastructure by amending the permitting process under Section 
401 of the CWA and focusing Section 401 on CWA water 
quality.\17\ Section 401 of the CWA requires applicants seeking 
a Federal permit or license for an activity that may result in 
discharge into navigable waters to obtain a water quality 
certification from the state or tribe with the jurisdiction of 
the area of possible discharge.\18\ These activities include 
projects under Sections 402 and 404 of the CWA, the Rivers and 
Harbors Act, as well as from the Federal Energy Regulatory 
Commission (FERC).\19\ H.R. 1152 was included in H.R. 1, the 
Lower Energy Costs Act, which passed the House on March 30, 
2023.\20\
---------------------------------------------------------------------------
    \16\ Water Quality Certification and Energy Project Improvement 
Act, H.R. 1152, 118th Cong. (2023).
    \17\ Id.
    \18\ CWA, supra note 3, Sec. 401.
    \19\ Id.; see also Laura Gatz & Kate R. Bowers, Cong. Rsch. Serv. 
(R46615) Clean Water Act Section 401: Overview and Recent Developments, 
(Updated Aug. 24, 2022), available at https://crsreports.congress.gov/
product/pdf/R/R46615.
    \20\ The Lower Energy Costs Act, H.R. 1, 118th Cong. (2023).
---------------------------------------------------------------------------
    Although both issues and pieces of legislation are relevant 
to CWA implementation, this Subcommittee hearing will primarily 
focus on other key sections of the CWA. The regulatory 
processes of the CWA are of particular interest to the 
Subcommittee at a time when the Infrastructure Investment and 
Jobs Act (IIJA) (P.L. 117-58) has provided large investments 
into the United States' infrastructure, including water 
infrastructure spending under the Clean Water State Revolving 
Fund (Clean Water SRF), and other infrastructure modes, such as 
roads, bridges, dams, and energy.\21\ Specifically, industry 
stakeholders are urging lawmakers to accelerate the project 
permitting process across infrastructure sectors and to deliver 
projects, on-time and on-budget, so that communities can 
realize project benefits as quickly as possible and to keep up 
with global competitors, such as China.\22\
---------------------------------------------------------------------------
    \21\ Infrastructure Investment and Jobs Act, Pub. L. 117-58, 135 
Stat 429.
    \22\ See James McBride & Anshu Siripurapu, The State of U.S. 
Infrastructure, Council on Foreign Relations (Nov. 8, 2021), available 
at https://www.cfr.org/backgrounder/state-us-infrastructure; Am. Soc. 
of Civil Engineers, A Comprehensive Assessment of America's 
Infrastructure: 2021 Rep. Card for America's Infrastructure, available 
at https://infrastructurereportcard.org/wp-content/uploads/2020/12/
National_IRC_2021-report.pdf.
---------------------------------------------------------------------------

  III. SECTION 402: NATIONAL POLLUTANT DISCHARGE ELIMINTATION SYSTEM 
                                (NPDES)

    Section 402 of the CWA authorizes the NPDES program for 
regulation of discharges of pollutants from point sources into 
navigable waters.\23\ Point sources are defined as ``any 
discernible, confined and discrete conveyance, such as a pipe, 
ditch, channel, conduit, discrete fissure, or container,'' and 
also include ``vessels or other floating craft'' from which 
pollutants may be discharged.\24\
---------------------------------------------------------------------------
    \23\ CWA, supra note 3, Sec. 402; see also CRS Report R46927 supra 
note 11; see generally also EPA, NPDES Permit Basics, available at 
https://www.epa.gov/npdes/npdes-permit-basics [Hereinafter NPDES Permit 
Basics].
    \24\ NPDES Permit Basics, supra note 23.
---------------------------------------------------------------------------
    Since all point source dischargers are subject to the NPDES 
program, a total of more than 65,000 industrial and municipal 
conventional dischargers are required to obtain permits 
pursuant to Section 402.\25\ In addition, NPDES permits are 
required for stormwater discharges from industrial and 
municipal sources, including over 150,000 individual 
sources.\26\ NPDES permits require the point source to attain 
technology-based effluent limits, while specifying the 
numerical effluent limitations that sources must meet in order 
to guarantee water quality where possible, and date of 
compliance.\27\ EPA is responsible for defining the level of 
treatment required for municipalities and various types of 
industries, as well as for developing minimum water quality 
criteria specifying the maximum concentrations of pollutants 
permitted for different designated uses of waters.\28\
---------------------------------------------------------------------------
    \25\ CRS Report RL30030, supra note 4.
    \26\ Id.
    \27\ Id.
    \28\ Jurisdiction and Activities Report, supra note 1.
---------------------------------------------------------------------------
    NPDES permits are issued for up to five years and must be 
renewed thereafter if discharge is to continue.\29\ However, if 
the permittee provides a complete application, but is not 
reissued a permit prior the date of expiration, the permit may 
be ``administratively continued.'' \30\ Permit applications are 
considered backlogged for new applications if they are not 
issued or denied within 365 days of receipt, and for extensions 
if they are administratively continued for 180 days or 
more.\31\ As of September 2021, there were 284 permits under 
the responsibility of EPA (e.g., in the States and territories 
under EPA-authority) awaiting reissuance in backlog and 22 new 
permit applications in backlog.\32\ While EPA has not formally 
documented the number of administratively continued permits 
issued by states with approved NPDES permit programs since 
fiscal year 2017, at that time, approximately 14,000 facilities 
were in possession of permits requiring reissuance.\33\
---------------------------------------------------------------------------
    \29\ See NPDES Permit Basics, supra note 23 (stating applicants for 
NPDES permit renewals must complete an application for renewal at least 
180 days prior to original expiration).
    \30\ Id.
    \31\ Id. (explaining these deadlines are only for EPA-issued 
permits. See next paragraph below for more information on state 
assumption of NPDES permitting programs).
    \32\ EPA, NPDES Permit Status Reports, available at https://
www.epa.gov/npdes/npdes-permit-status-reports#current.
    \33\ See EPA, Permit Status Report for Non-Tribal Major Individual, 
Minor Individual, and Non-Stormwater General Permit Covered 
Facilities--End-of-Year FY2017, available at https://www.epa.gov/sites/
default/files/2017-12/documents/final_fy17_eoy_non-tribal_
backlog_report_card-sum.pdf.
---------------------------------------------------------------------------
    While EPA runs its own NPDES permitting program, the CWA 
authorizes EPA to approve individual states and tribes to 
manage their own NPDES permitting programs, in keeping with the 
CWA's intent of Federal-state partnership.\34\ In order to be 
approved to manage a NPDES permit program, a state must meet 
specific requirements, including developing water quality 
standards. States may use either EPA's water quality standards, 
or different standards approved by EPA, if the state 
demonstrates to EPA that the differences are warranted and not 
inconsistent with the CWA antidegradation policy.\35\ Nearly 
all states have assumed administration of their own NPDES 
permitting programs, with only three exceptions: Massachusetts, 
New Hampshire, and New Mexico.\36\
---------------------------------------------------------------------------
    \34\ CRS Report RL30030, supra note 4.
    \35\ CRS Report R46927, supra note 11; CWA, supra note 3, Sec. 510.
    \36\ Id.
---------------------------------------------------------------------------
    Point sources may in some instances apply for a NPDES 
general permit as opposed to a NPDES individual permit. A NPDES 
individual permit is written for site-specific discharges that 
are unique to a specific location or discharge.\37\ On the 
other hand, NPDES general permits cover ``multiple dischargers 
with similar operations and types of discharges,'' such as 
pesticide use or stormwater discharge.\38\ Obtaining coverage 
under a general permit is often quicker than an individual 
permit, with point sources submitting a Notice of Intent (NOI) 
to be covered under a general permit after it is issued by a 
permitting authority.\39\
---------------------------------------------------------------------------
    \37\ See NPDES Permit Basics, supra note 23.
    \38\ Id.
    \39\ Id.
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               IV. SECTION 404: DREDGED AND FILL MATERIAL

    Section 404 of the CWA authorizes a separate type of permit 
required to discharge dredged or fill materials into navigable 
waters. Activities covered under the Section 404 program 
include those associated with pipeline projects; water 
resources projects such as levees and dams; mining projects 
such as those for critical minerals; infrastructure development 
such as highways and airports; and other development.\40\ Some 
activities are exempt from Section 404 permitting requirements, 
such as certain farming and forestry activities.\41\ Section 
404 permits are typically issued for a term of five years.\42\
---------------------------------------------------------------------------
    \40\ EPA, Permit Program under CWA Section 404, available at 
https://www.epa.gov/cwa-404/permit-program-under-cwa-section-404 
[hereinafter Permit Program under CWA Section 404].
    \41\ Id.
    \42\ Id.
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    EPA and the Corps play complementary roles in implementing 
the Section 404 program, with the Corps in charge of issuing 
permits for discharge of dredged or fill material, using a set 
of environmental guidelines promulgated by EPA in conjunction 
with the Corps to evaluate permit applications.\43\ The Corps 
likewise administers the day-to-day program, including 
jurisdictional determinations (JD) which certify the presence 
or absence of waters subject to the CWA.\44\
---------------------------------------------------------------------------
    \43\ CWA, supra note 3, Sec. 404(b); see also CRS Report RL30030, 
supra note 4.
    \44\ Permit Program under CWA Section 404, supra note 40.
---------------------------------------------------------------------------
    Similar to the NPDES permitting process, EPA may also allow 
states and tribes to assume authority to grant or deny dredge 
and fill permits under Section 404, under the condition that 
states or tribes develop a wetlands permit program consistent 
with the CWA.\45\ Currently three states have assumed authority 
over their Section 404 program: Florida, Michigan, and New 
Jersey.\46\
---------------------------------------------------------------------------
    \45\ EPA, State or Tribal Assumption of the CWA Section 404 Permit 
Program, available at https://www.epa.gov/cwa-404/state-or-tribal-
assumption-cwa-section-404-permit-program.
    \46\ See CRS Report R46927, supra note 11.
---------------------------------------------------------------------------
    Pursuant to Section 404, the Corps issues two types of 
permits: general and individual. The CWA authorizes the 
issuance of general permits for discharges that are ``similar 
in nature, will cause only minimal adverse environmental 
effects when performed separately, and will have only minimal 
cumulative adverse effect on the environment'' and are issued 
on a nationwide, regional, or state basis for particular 
categories of activities.\47\ Nationwide Permits (NWPs) and 
Regional General Permits are issued by the Corps on a National 
basis and are designed to ``enhance regulatory efficiency and 
provide clarity for the regulated public without decreasing 
environmental protections.'' \48\ The most recent reissuance of 
NWPs went into effect in February 2022, covering 59 distinct 
activity categories, including mooring buoys, residential 
developments, utility lines, road crossings, and mining 
activities.\49\
---------------------------------------------------------------------------
    \47\ CWA, supra note 3, Sec. 404(e); see also Permit Program under 
CWA Section 404, supra note 40.
    \48\ Press Release, Corps., Army Corps of Engineers announces 
publication of 2021 Nationwide Permits (Jan. 13, 2021), available at 
https://www.usace.army.mil/Media/News-Releases/News-Release-Article-
View/Article/2470506/army-corps-of-engineers-announces-publication-of-
2021-nationwide-permits.
    \49\ See Corps., 2021 Nationwide Permit Information, available at 
https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-
Permits/Nationwide-Permits.
---------------------------------------------------------------------------
    Section 404 also authorizes EPA to restrict, prohibit, 
deny, or withdraw the specification by the Corps of a site for 
the discharge of dredged or fill material, if the agency 
determines that the discharge will have an unacceptable adverse 
effect on municipal water supplies, shellfish beds and fishery 
areas, wildlife, or recreational areas.\50\ Section 404(c) is 
commonly referred to as EPA's ``veto authority.'' Since the 
CWA's enactment, EPA has issued fourteen 404(c) determinations, 
most recently for the Pebble Deposit Area in Alaska.\51\
---------------------------------------------------------------------------
    \50\ CWA, supra note 3, Sec. 404(c); See also EPA, Clean Water Act 
Section 404(c) ``Veto Authority'', available at https://www.epa.gov/
sites/default/files/2016-03/documents/404c.pdf.
    \51\ EPA, Chronology of CWA Section 404(c) Actions, available at 
https://www.epa.gov/cwa-404/chronology-cwa-section-404c-actions.
---------------------------------------------------------------------------

                              V. WITNESSES

     LDr. Andrea Travnicek, Director, Department of 
Water Resources, State of North Dakota
     LThe Honorable Serena Coleman McIlwain, Secretary 
of the Environment, State of Maryland
     LMr. Mickey Conway, CEO, Metro Water Recovery, 
Denver, Colorado, on behalf of the National Association of 
Clean Water Agencies
     LMr. Brandon Farris, Vice President, Energy and 
Resources Policy, National Association of Manufacturers


  THE NEXT FIFTY YEARS OF THE CLEAN WATER ACT: EXAMINING THE LAW AND 
                   INFRASTRUCTURE PROJECT COMPLETION

                              ----------                              


                         TUESDAY, MAY 16, 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.
    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.
    As a reminder, if Members wish to insert a document into 
the record, please also email that document to--listen up--
[email protected]. Again, [email protected].
gov.
    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 just over half a century, the Clean Water 
Act has functioned to improve the quality of rivers, lakes, and 
streams throughout the country. Congress recognized that we had 
a major issue with the quality of our Nation's waters and 
understood the many benefits that are derived from access to 
clean, navigable waters.
    North Carolina's Seventh Congressional District, which I am 
honored to represent, is known for its beautiful waterways and 
beaches that provide significant recreational and economic 
benefits. We also have many important bodies of water that we 
rely on for commerce and drinking water.
    The Clean Water Act has had great success in its 50 years 
protecting waters in North Carolina and all around the country. 
We should be proud of the progress we have made to restore and 
maintain the chemical, physical, and biological integrity of 
the Nation's waters.
    And it is important that we not ignore innovation and other 
major changes that have occurred since Congress passed the 
Clean Water Act back in 1972. Now, more than 50 years following 
its enactment, it is not only appropriate but necessary to 
reflect on how the Clean Water Act works and what parts of it 
might need an update. There is no better place to start that 
review than right here in this subcommittee.
    Now, as we all know, the United States frequently scores 
poorly on infrastructure reports. We are being outmaneuvered by 
our competitors worldwide, China in particular. Now, we 
certainly all agree that there should be rules of the road, but 
as I like to say, we don't need a stop light every 10 feet like 
we have, literally, here in Washington, DC, on some streets in 
particular.
    Regulations should be simple to understand and easy to 
follow, which, coincidentally, makes them so much easier to 
enforce. Our worldwide competitors care little to nothing about 
any regulatory structure or permitting. When they want to do 
something, they just go do it. Now, we are better than that, of 
course, and we should be. But it doesn't mean we should be 
forced to accept a timeline of years to build a manufacturing 
plant or to build a wastewater treatment plant or energy 
project. All this does is give our international competitors a 
distinct and significant advantage.
    Regulations should carry out the intent of the law 
transparently and not leave regulated communities, whether it 
be miners, utility companies, State and local governments, 
manufacturers, or any other hard-working American, subject to 
bureaucratic uncertainty or line the pockets of trial lawyers. 
American innovation, greatness, and competitiveness cannot be 
achieved when the country is stuck in a bureaucratic quagmire.
    Today, the subcommittee will hear perspectives on how the 
Clean Water Act can be modernized so that its rules and 
regulations fit the current times, while still accomplishing 
the goal of making waters of the United States fishable and 
swimmable. Ensuring the completion of important infrastructure 
and energy development projects--for things like wastewater 
management, the mining of critical minerals, and water 
resources development--is vital to reducing supply chain 
challenges and promoting commerce. In doing so, we can reassert 
American strength and compete worldwide while protecting the 
quality of our water all at the same time.
    This hearing is the latest action we are taking to examine 
and modernize the Clean Water Act. This morning, we have a 
knowledgeable panel of witnesses representing a diverse array 
of interests who are all affected by the Clean Water Act, 
including wastewater agencies, manufacturers, and State 
governments.
    This panel of stakeholders is well-versed on the details of 
Clean Water Act regulations. Our focus today is on two of the 
main regulatory provisions of the CWA: section 402, the 
National Pollutant Discharge Elimination System program; and 
section 404, the dredged and fill material discharge program.
    I am eager to hear from our witnesses about their 
experiences with the CWA regulations and their ideas on how to 
improve and update it for the benefit of everyone. In 
particular, I look forward to hearing their comments on the 
NPDES program, including the creation of guidelines on effluent 
limitations; section 404 issues, such as nationwide permits; 
and any other insights into the CWA programs they may have, 
especially as it relates to responsibly advancing energy and 
infrastructure project completion.
    [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 just over half a century, the Clean Water Act (CWA) has 
functioned to improve the quality of rivers, lakes, and streams 
throughout the country. Congress recognized that we had a major issue 
with the quality of our Nation's waters and understood the many 
benefits that are derived from access to clean, navigable waters.
    North Carolina's Seventh Congressional District, which I'm honored 
to represent, is known for its beautiful waterways and beaches that 
provide significant recreational and economic benefits. We also have 
many important bodies of water that we rely on for commerce and 
drinking water.
    The Clean Water Act has had great success in its 50 years 
protecting waters in North Carolina and all around the country. We 
should be proud of the progress we have made to restore and maintain 
the chemical, physical, and biological integrity of the Nation's 
waters.
    It would be irresponsible to ignore innovation and other major 
changes that have occurred since Congress passed the Clean Water Act 
back in 1972. Now, more than 50 years following its enactment, it is 
not only appropriate but necessary to reflect on how the CWA works and 
what parts of it might need an update.
    As the United States frequently scores poorly on infrastructure 
reports, we see ourselves being outdone by our competitors worldwide, 
China in particular. We all agree that there should be rules of the 
road. But as I like to say, we don't need a stop light every 10 feet 
like we have here in Washington, D.C.
    Regulations should be simple to understand and easy to follow, 
which coincidentally, makes them so much easier to enforce. Our 
worldwide competitors care little to nothing about any regulatory 
structure or permitting. When they want to do something, they just do 
it. We are much better than that, of course, as we should be. But it 
doesn't mean we should be forced to accept a timeline of years to build 
a manufacturing plant, new infrastructure or energy project. All this 
does is give our international competitors a distinct and significant 
advantage.
    Regulations should carry out the intent of the law transparently, 
and not leave regulated communities, whether it be miners, utility 
companies, state and local governments, manufacturers, or any other 
hardworking American, subject to bureaucratic uncertainty, or line the 
pockets of trial lawyers. American innovation and greatness cannot be 
achieved when the country is stuck in a bureaucratic quagmire.
    Today, the Subcommittee will hear perspectives on how the Clean 
Water Act can be modernized, so that its rules and regulations fit the 
current times, while still accomplishing the goal of making waters of 
the United States ``fishable and swimmable.'' Ensuring the completion 
of important infrastructure and energy development projects--for things 
like wastewater management, the mining of critical minerals, and water 
resources development--is vital to reducing supply chain challenges and 
promoting commerce. In doing so, we can reassert American strengthen 
and compete worldwide while protecting the quality of our water all at 
the same time.
    This hearing is the latest action we are taking to examine and 
modernize the Clean Water Act. This morning, we have a knowledgeable 
panel of witnesses here today, representing a diverse array of 
interests who are all affected by the Clean Water Act, including 
wastewater agencies, manufacturers, and state governments. I am eager 
to hear from our witnesses about their experiences with Clean Water Act 
regulations, and their ideas on how to improve and update it for the 
benefit of everyone.
    This panel of stakeholders is well-versed on the details of Clean 
Water Act regulations. Our focus today is on two of the main regulatory 
provisions of the CWA: Section 402, the National Pollutant Discharge 
Elimination System (NPDES) program, and Section 404, the dredged and 
fill material discharge program. NPDES seeks to mitigate the discharge 
of pollutants into our water systems.
    I look forward to hearing from you, our panelists, on the NPDES 
program, including on the creation of effluent limitations guidelines, 
Section 404 issues such as Nationwide Permits, and any other insights 
into CWA programs you may have, especially as it relates to responsibly 
advancing energy and infrastructure project completion.

    Mr. Rouzer. I ask unanimous consent to enter into the 
record a statement for the record for today's hearing by the 
National Mining Association, dated May 16, 2023.
    Without objection, so ordered.
    I also ask unanimous consent to enter into the record two 
letters, one from the American Petroleum Institute, dated May 
15, 2023, sent to Ranking Member Napolitano and myself; and one 
from the National Stone, Sand, and Gravel Association, dated 
May 15, 2023, also sent to Ranking Member Napolitano and 
myself.
    Without objection, so ordered.
    [The information follows:]

                                 
Statement of the National Mining Association, Submitted for the Record 
                          by Hon. David Rouzer
    The National Mining Association (NMA) appreciates the opportunity 
to provide input to the Committee on Transportation and Infrastructure 
regarding the future of permitting and the Clean Water Act (CWA). The 
NMA's members support and conduct mining operations throughout the 
United States. In an era of intense global competition, U.S. mining 
operators, including small businesses, need regulatory clarity and 
certainty to make confident decisions that will create jobs, strengthen 
local economies, and create high quality, American-made goods and 
services. This includes metallurgical coal for steelmaking and critical 
infrastructure, thermal coal for heating and energy both at home and to 
our allies abroad, and hardrock minerals such as copper that support 
renewable energy technologies, healthcare, and more.
    The NMA is the only national trade organization that serves as the 
voice of the U.S. mining industry and the hundreds of thousands of 
American workers it employs before Congress. We work to ensure America 
has secure and reliable supply chains, abundant and affordable energy, 
and the American-sourced materials necessary for U.S. manufacturing, 
national security and economic security, all delivered under world-
leading environmental, safety and labor standards. The NMA has a 
membership of more than 275 companies and organizations involved in 
every aspect of mining, from producers and equipment manufacturers to 
service providers.
                               Background
    Coal is a reliable and abundant energy resource--making up nearly 
90 percent of U.S. fossil energy reserves on a Btu basis. The demand 
for coal, especially coal exports, has remained steady and even 
increased. Russia's invasion of Ukraine has severely shaken global coal 
markets and last year triggered a spike in U.S. thermal coal exports to 
help alleviate Europe's tight energy supply and low natural gas 
reserves.
    Key infrastructure, including roads, railways, buildings, stadiums, 
bridges, airports and other structures are all supported by steel--a 
material dependent on metallurgical coal. Seventy percent of the 
world's steel requires coal for its production. The U.S. is one of the 
largest metallurgical coal exporters in the world and demand is 
expected to increase 20 percent by 2030 to keep up with the pace of 
aging infrastructure.
    Hardrock mined materials, including copper, nickel and lithium are 
widely recognized as commodities for which the demand will 
exponentially increase over the next several decades--in some cases 
between 500 and 1,000 percent. Key western mining states, such as 
Nevada, Arizona and Utah are all expected to play a pivotal role in 
securing our domestic supply chains for these and other minerals that 
are needed for renewable energy technologies, defense purposes and 
electric vehicles.
    American coal and hardrock producers are reliant on efficient, 
predictable and durable CWA regulations and guidance that maintains 
federal and state cooperation. Unfortunately, CWA requirements have 
become more complex, especially as litigation has increased. Over the 
last several decades, the result has been more costly and lengthy 
permitting processes bound by uncertainty of timeline and approval 
outcomes for CWA permit holders.
                            Recommendations
    The NMA urges Congress to use its authority to ensure congressional 
intent is maintained and to prevent regulatory overreach that 
ultimately hinders U.S. energy and mineral supply chains. It is 
essential that domestic miners can continue to responsibly produce 
domestic coal that utilities rely on to power our communities and heat 
and cool our homes. We must be able to provide metallurgical coal to 
the industries that repair roads, bridges and buildings to keep our 
infrastructure safe and reliable. We must ensure that our hardrock 
mineral production can ramp up to meet market demand for nearly every 
U.S. industry and for the innovative technologies that will help power 
our future.
    Several components of the CWA underpin the activities mentioned 
above. In addition to legislative actions already taken by the 
committee to ensure predictability and effectiveness of permitting 
processes, including efforts to clarify section 401 and ``waters of the 
United States'' (WOTUS), the NMA recommends Congress prioritize the 
following additional proposed CWA reforms:
      Set clear limits on preemptive and retroactive 404(c) 
veto authority: The Environmental Protection Agency has in the past 
used its veto authority preemptively to restrict development of 
proposed energy and mineral projects before any applications for a 404 
permit have ever been filed with the agency, and retroactively after 
permitted projects had already been operating for years. Ultimately, 
this undermines the private sector investment climate in the U.S. for 
mining and other capital-intensive projects and the good-paying jobs 
they would create.

      Maintain five-year validity of U.S. Army Corps of 
Engineers Approved Jurisdictional Determinations (AJDs): An AJD should 
remain valid for permitting purposes for five years in accordance with 
RGL No. 05-02 and the Supreme Court's holding in U.S. Army Corps of 
Engineers v. Hawkes, regardless of whether the definition of WOTUS 
changes during that time. Without this certainty, the increased cost of 
permitting and associated cost of delays will further disincentivize 
future investment opportunities for small businesses throughout the 
U.S.

      Streamline compensatory mitigation process: The high cost 
and lack of available compensatory mitigation credits can prevent a 
proposed project from moving forward. Streamlining the compensatory 
mitigation review and approval process to make more credits available 
at an affordable rate in the marketplace would help ensure important 
projects can be completed.

      Develop guardrails to increase clarity for aquatic 
resource of national importance (ARNI) designations: An ARNI is a 
resource-based threshold used to determine whether a dispute between 
EPA and the Corps regarding individual permit cases are eligible for 
elevation under a 1992 404(q) memorandum of understanding. While ARNI 
is not a designation found under the CWA, the EPA uses its authority to 
determine this on a case-by-case basis. The lack of definition and 
broad authority given to EPA under this MOU can increase delays in 
permitting and raise costs by requiring higher than necessary 
mitigation ratios.

      Ensure any EPA guidance on CWA section 402 NPDES 
permitting requirements for groundwater is released for public notice 
and comment: In 2020, the Supreme Court in County of Maui v. Hawaii 
Wildlife Fund created a test to determine whether a discharge from a 
point source to a WOTUS via groundwater is the ``functional 
equivalent'' of a direct discharge and therefore requires permittees to 
obtain a CWA section 402 National Pollutant Discharge Elimination 
System (NPDES) permit. We understand EPA is nearing completion of draft 
guidance that would advise permittees when it may be necessary to 
obtain a section 402 NPDES permit. We urge Congress to ensure that EPA 
allows the regulated community and other stakeholders the opportunity 
to provide comment on the guidance.

      Clarify the scope of CWA section 402(k), the NPDES 
``permit shield'': Under CWA Sec. 402(k), known as the ``permit 
shield'' provision, if a permittee discharges in compliance with its 
NPDES permit, it is shielded from CWA liability. Unfortunately, 
litigation involving this critical protection has increased in multiple 
states by parties attempting to limit the scope of the permit shield 
defense. We encourage Congress to clarify that permittees are shielded 
from liability under lawfully issued NPDES permits. This clarification 
will help ensure legal and regulatory certainty.

      Ensure the development of CWA section 304(a) water 
quality criteria and implementation materials are transparent and 
subject to notice and comment rulemaking and judicial review: EPA 
develops water quality criteria, which are then generally adopted into 
state standards and put into all NPDES permits. Because water quality 
criteria trigger permitting requirements, their development should be 
transparent and informed by the regulated community and other 
stakeholders through public notice and comment.

      Ensure CWA section 402 NPDES permits have clear terms: 
NPDES permit writers often use ambiguous terms, which can then be used 
improperly in litigation. We encourage Congress to clarify that any 
effluent limitation in a permit clearly identifies the specific 
pollutant to which it applies, and either the numeric values or 
waterbody conditions that permit holders must meet. This clarity will 
ensure permit holders know what is expected of them for compliance 
purposes and would provide regulatory certainty.

    The NMA appreciates the committee's attention to the issue of 
effective permitting and ensuring the preservation of our water 
resources. We look forward to engaging and supporting the committee in 
its effort to address these and other related CWA issues.

                                 
Letter of May 15, 2023, to Hon. David Rouzer, Chairman, and Hon. Grace 
  F. Napolitano, Ranking Member, Subcommittee on Water Resources and 
  Environment, from Amanda E. Eversole, Executive Vice President and 
Chief Advocacy Officer, American Petroleum Institute, Submitted for the 
                      Record by Hon. David Rouzer
                                                      May 15, 2023.
The Honorable David Rouzer,
Chair,
Subcommittee on Water Resources and Environment, 2165 Rayburn House 
        Office Building, Washington, DC 20515.
The Honorable Grace Napolitano,
Ranking Member,
Subcommittee on Water Resources and Environment, 2165 Rayburn House 
        Office Building, Washington, DC 20515.
    Dear Chairman Rouzer and Ranking Member Napolitano:
    The American Petroleum Institute (API) writes regarding the 
upcoming Water Resources and Environment Subcommittee Hearing: ``The 
Next Fifty Years of the Clean Water Act: Examining the Law and 
Infrastructure Project Completion'' on Tuesday, May 16, 2023.
    API is committed to meeting the challenge of providing affordable 
and reliable energy while continuing to reduce emissions. As the 
leading trade association representing the entire value chain of the 
U.S. oil and natural gas industry, API supports policies that 
strengthen our nation's energy security and economy and protect our 
environment. We commend the Committee for holding a hearing on May 16, 
which will consider an important topic related to these objectives.
    Investments to modernize infrastructure, including expanding 
current capacity and building new capacity, can help ensure that energy 
remains affordable for American consumers, create good-paying jobs, 
give U.S. manufacturers a competitive advantage through lower energy 
and raw material costs, and provide revenue to local, state and federal 
governments. Yet, decades-long challenges with the existing permitting 
process have hampered the development of critical infrastructure 
projects and jeopardized American energy security.
    Many of those permits are issued at the state or federal level 
under the Clean Water Act (CWA) when a project may impact navigable 
waters. The permitting process can take years, and those delays can 
lead to skyrocketing project costs or even cancellation. API urges 
Congress to pass meaningful permitting reform legislation that includes 
changes to the CWA that will create a more conducive environment for 
moving critical projects forward, while still maintaining important 
environmental reviews and stakeholder engagement.
    With respect to the CWA, we recommend that water quality 
certifications reviewed and issued by states, tribes or EPA under 
Section 401 should be limited to direct water quality impacts from 
point source discharges to navigable waters and should not be used by 
certifying agencies to veto critical energy projects. API commends the 
House for previously addressing the permitting process and clarifying 
the focus on water quality under Section 401 through the passage of 
H.R. l. Additionally, the Nationwide Permit (NWP) Program under Section 
404 should be reformed to address the ongoing viability of the program, 
extend the reissuance period and address authority of the Army Corps of 
Engineers and the Environmental Protection Agency (EPA).
    To that end, we make the following recommendations for CWA 
permitting reform:
Section 401:
      Clarify that it applies only to federal activity--Need 
for certification arises only when a federally licensed or permitted 
activity has the potential to result in a discharge from a point source 
into a ``water of the United States.''

      Scope of reviews--Certification review is limited to 
water quality impacts from the discharge only that would result from 
the federally permitted or licensed activity itself--not from other 
sources or from the ``activity as a whole.''

      Start of the clock--Certification review period commences 
upon the date of the certifying authority's receipt of a request for 
certification, and this review period cannot exceed one year.

      Prohibit withdrawal/resubmit--Certifying authorities 
should not be allowed to recommend withdrawal and resubmission of 
applications to restart the one-year time review requirement.

      Clear application requirements--Require states to publish 
requirements for certification requests and require states to notify 
applicants within 30 days of receipt of application whether the states 
have all the materials needed to process a certification request.

      Determinations--Final decisions on whether to grant, 
grant with conditions or deny a request for certification must be in 
writing and based only on local water quality reasons, and certifying 
authorities must provide rationale for decision.

      Conditions--Each certification condition should be 
supported by an explanation for why the condition is necessary to 
certify compliance with water quality requirements and supported with a 
citation to applicable legal requirements that protect water quality.
Section 404:

      NWP renewals--Extend the reissuance cycle for NWPs from 
five to ten years, which would help provide increased regulatory 
certainty for project developers and avoid potential disruption to 
critical infrastructure projects.

      Confined EPA Authority--Ensure that EPA does not pre-
emptively bar potential activities requiring a CWA Section 404 permit 
before there is an applicant or a project; for EPA to make a veto 
determination under 404(c), an entity must apply for an actual Section 
404 permit with the Corps.

      One NWP--To help ensure predictability for project 
developers, clarify that one linear project can be authorized under one 
NWP, even if there are multiple owners or developers and even if there 
are multiple crossings of the same water body in different places or 
multiple water bodies in the same location.

      Consultation--Because the Corps' issuance and reissuance 
of NWP 12 is limited to only those activities that have ``no effect'' 
on listed species or designated critical habitat, clarify that 
consultation under the Endangered Species Act is not required.

      Use for oil/pipelines--Ensure that the Administration 
maintains NWP 12 for activities associated with oil and natural gas 
pipelines that do not result in the loss of greater than \1/2\ acre of 
Waters of the United States for each single and complete project.

      Judicial review--Include a provision to ensure that an 
action seeking judicial review of an individual or general permit under 
section 404 must be filed no later than 60 days from the date the 
permit is issued. In addition, ensure that if a federal court remands 
or vacates a permit under section 404, the issuer of the permit must 
act on the remand or vacatur no later than 180 days from the date the 
permit is remanded or vacated. In addition, ensure that those permits 
already approved as of the date of enactment are not subject to 
challenge.

    Applying these reforms to Section 401 and 404 of the CWA will help 
create a more conducive environment for moving critical projects 
forward by providing a more transparent, timely and consistent process.
    API looks forward to working with Congress to advance meaningful 
bipartisan permitting reform this year. If you have any questions, 
please contact Emily Wong on our Federal Relations staff.
            Sincerely,
                                        Amanda E. Eversole,
               Executive Vice President and Chief Advocacy Officer,
                                      American Petroleum Institute.

cc:  The Honorable Sam Graves, Chair, House Committee on Transportation 
and Infrastructure
     The Honorable Rick Larsen, Ranking Member, House Committee on 
Transportation and Infrastructure

                                 
Letter of May 15, 2023, to Hon. David Rouzer, Chairman, Subcommittee on 
Water Resources and Environment, from Michael W. Johnson, President and 
  Chief Executive Officer, National Stone, Sand & Gravel Association, 
             Submitted for the Record by Hon. David Rouzer
                                                      May 15, 2023.
The Honorable David Rouzer,
Chairman,
Subcommittee on Water Resources and Environment.
    Dear Chairman Rouzer and Members of the Subcommittee on Water 
Resources and Environment,
    On behalf of the 400 members of the National Stone, Sand & Gravel 
Association (NSSGA), I am writing to you in light of the upcoming 
hearing, ``The Next Fifty Years of the Clean Water Act: Examining the 
Law and Infrastructure Project Completion,'' scheduled for Tuesday, May 
16, 2023.
    NSSGA proudly represents the nation's aggregates industry, which 
conducts over 9,000 operations and employs over 100,000 citizens 
annually that create 2.5 billion tons of aggregates each year. These 
raw materials are essential to rebuild and repair our country's aging 
infrastructure and assist our nation's goals in lowering the overall 
energy cost for families.
    Our members, who represent the largest volume of natural materials 
producers in the United States, are integral to the construction and 
maintenance of the nation's infrastructure. Aggregate materials, 
including sand, gravel, crushed stone, and others, are indispensable to 
public works projects involving water treatment systems, flood control, 
and stream restoration. These materials also play a crucial role in 
purifying our drinking water, underlining their importance to both 
public health and environmental sustainability.
    However, our members' capacity to contribute to these critical 
projects is currently threatened by the latest WOTUS rule, which is an 
unclear, overly expansive, and arbitrary interpretations of the Clean 
Water Act (CWA). While the CWA is an essential instrument for 
protecting our water resources, the ambiguous interpretation, 
particularly regarding the definition of `waters of the United States,' 
has created a climate of uncertainty for aggregate producers. This is 
especially problematic given the regulatory patchwork where 3 courts 
have put the rule on hold due to its overreach and lack of clarity. 
This makes it even harder given the purportedly ``durable'' rule is 
anything but, and regulators and the public are even more confused 
about what features are jurisdictional. NSSGA has members who have been 
trying to permit projects for years under multiple rules.
    This situation could potentially delay or halt essential projects 
that are central to public health, the economy, and the environment. 
Unclear guidance impedes the effective use of aggregate materials, 
undermining our collective goal of sustainable development and 
environmental protection.
    As the Subcommittee convenes to deliberate on the future of the 
Clean Water Act, we implore you to consider an interpretation that 
balances the Act's environmental objectives with the practical needs of 
infrastructure projects. Clear and actionable guidance is needed for 
industries that depend on aggregate materials, ensuring their 
operations' certainty and continuity.
    We believe that the upcoming hearing offers an opportunity to 
strike a balance between environmental protection and infrastructure 
development. We trust that the esteemed witnesses--Dr. Travnicek, 
Secretary McIlwain, Mr. Conway, and Mr. Farris--will bring invaluable 
insights to this discussion.
    We thank you for your consideration and remain confident that your 
actions will serve the best interests of our nation, contributing to a 
sustainable future for our communities and a prosperous aggregate 
industry.
            Sincerely,
                                        Michael W. Johnson,
      President and CEO, National Stone, Sand & Gravel Association.

    Mr. Rouzer. I now recognize my good friend and colleague 
from California, 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, Mr. Chairman. You have 
continued the subcommittee's long history of success in 
addressing the bipartisan water resources needs of our Nation, 
as clean water is essential to our livelihoods, our health, our 
environment, and our businesses.
    The strength of the American economy is reliant on a clean 
water supply as it is a key ingredient for manufacturing, 
farming, food processing, small business development, tourism, 
and recreational businesses. If we do not protect our Nation's 
water, this will have a negative impact on business as they 
will not have the high-quality water they need for production 
and growth. The decline of water quality will require 
consumers, businesses, and residents to pay more in water 
utility bills to treat the water before it comes to the tap.
    And I agree with you. We should not be competing with 
China, because we will have to lower our standards, and I don't 
want that. This is true whether you live on a coast or in the 
middle of the country, whether you live in a big city, a small 
town, or whether you live in an affluent community or a 
community struggling to make ends meet.
    Over the past 50 years, the Clean Water Act has made 
considerable progress in addressing our Nation's water quality 
concerns. Through a substantial investment of resources, 
spurred by Federal dollars from the Clean Water Act, this 
Nation was able to fundamentally address the discharge of raw 
or partially treated sewage into our rivers, streams, and 
lakes.
    However, challenges remain.
    Over the last decade, communities and States have called 
for additional Federal dollars and resources to address 
lingering water quality concerns. In response, last Congress, 
House Democrats delivered with enactment of the largest 
investment in wastewater infrastructure in generations through 
the Bipartisan Infrastructure Law, known as BIL. Over the 5 
years covered in the BIL, this critical legislation will 
provide approximately $13.8 billion in Federal clean water 
resources to address the many local water quality challenges.
    Further, in recognition that not all communities are on 
equal financial footing, the BIL ensured that roughly half of 
the funding would be provided in the form of grants or other 
flexible financing to address the needs of economically 
disadvantaged communities, including rural and Tribal 
communities, many of which had borne the burden of 
environmental contamination for far too long.
    Yet, as important as wastewater infrastructure financing 
might be, there are limits to what can be done relying solely 
on wastewater infrastructure investment. Over the past few 
years, more and more communities have experienced recurrent 
outbreaks of harmful algal blooms that can produce toxins; kill 
fish, mammals, and birds; contaminate drinking water sources; 
and cause human illness or even death in extreme cases. And 
then we have a new contaminant coming up, which is PFAS. We 
have got to look out for that.
    As shown on the maps on the screen, if you look at the 
screen, harmful algal blooms have become a national concern 
because they affect not only the health of people and marine 
ecosystems, but also the health of our economy, especially 
coastal communities dependent on the income of jobs generated 
through fishing and tourism.
    We all know that a major cause of these blooms is excessive 
nutrients, such as nitrogen and phosphorus, in U.S. waters. 
Unfortunately, according to State data, excessive nutrients 
continue to be one of the Nation's leading water quality 
issues. Today, approximately 58 percent of rivers and streams, 
40 percent of lakes, and 21 percent of coastal waters are 
impaired due to high levels of nutrients. You see the location 
of many of these contaminated waters on the second map on the 
screen.
    Mr. Chair, I ask unanimous consent both maps be made part 
of today's hearing record.
    Mr. Rouzer. So ordered.
    [The maps immediately follow Mrs. Napolitano's prepared 
statement.]
    Mrs. Napolitano. What is worse than that, according to the 
EPA, the percentage of nutrient-impaired waterways is 
increasing, even with substantial investment in our Nation's 
wastewater infrastructure, and we need to do more. Very 
clearly, we need to do more.
    Unfortunately, in my opinion, every water bill advanced by 
this committee in Congress would needlessly weaken Federal and 
State efforts to protect our waters from pollution, such as 
excessive nutrients. In my opinion, every water bill advanced 
in this Congress would result in more water bodies being 
impaired by contamination, such as harmful algal blooms, not 
less.
    Now is not the time to pull back on Federal investments on 
wastewater infrastructure. Now is not the time to weaken 
Federal and State efforts to protect our Nation's waters. Now 
is not the time to weaken our clean water future. We cannot 
regress.
    I welcome our panelists here today and look forward to 
their valued input.
    [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.
    This Subcommittee has a long history of success in addressing the 
bipartisan water resources needs of our nation as clean water is 
essential to our livelihoods, to our environment, and to our 
businesses.
    The strength of the American economy is reliant on a clean water 
supply as it is a key ingredient for manufacturing, farming, food 
processing, small business development, and tourism and recreational 
businesses. If we do not protect our nation's waters, this will have a 
negative impact on business as they will not have the high quality 
water they need for production and growth. The decline of water quality 
will require consumers, businesses, and residents to pay more in water 
utility bills to treat water before it comes to the tap.
    This is true whether you live along the coast or in the middle of 
the country, whether you live in a big city or small town, or whether 
you live in an affluent community or a community struggling to make 
ends meet.
    Over the past 50 years, the Clean Water Act has made considerable 
progress in addressing our nation's water quality concerns.
    Through a substantial investment of resources--spurred by federal 
dollars from the Clean Water Act--this nation was able to fundamentally 
address the discharge of raw or partially treated sewage into our 
rivers, streams, and lakes.
    However, challenges remain.
    Over the last decade, communities and states have called for 
additional federal resources to address lingering water quality 
concerns.
    In response, last Congress, House Democrats delivered with 
enactment of the largest investment in wastewater infrastructure in 
generations through the Bipartisan Infrastructure Law (BIL).
    Over the five years covered in the BIL, this critical legislation 
will provide approximately $13.8 billion in federal clean water 
resources to address local water quality challenges.
    Further, in recognition that not all communities are on equal 
financial footings, the BIL ensured that roughly half of the funding 
would be provided in the form of grants or other flexible financing to 
address the needs of economically disadvantaged communities, including 
rural and tribal communities--many of which have borne the burden of 
environmental contamination for too long.
    Yet, as important as robust water infrastructure financing might 
be, there are limits to what can be done relying solely on wastewater 
infrastructure investment.
    Over the past few years, more and more communities have experienced 
recurring outbreaks of harmful algal blooms that can produce toxins, 
kill fish, mammals, and birds, contaminate drinking water sources, and 
cause human illness or even death in extreme cases.
    As shown on the map on the screens, harmful algal blooms have 
become a national concern because they affect not only the health of 
people and marine ecosystems, but also the ``health'' of our economy--
especially coastal communities dependent on the income of jobs 
generated through fishing and tourism.
    We all know that a major cause these blooms is excessive 
nutrients--such as nitrogen and phosphorous--in U.S. waters. 
Unfortunately, according to state data, excessive nutrients continue to 
be one of our nation's leading water quality issues.
    Today, approximately 58 percent of rivers and streams, 40 percent 
of lakes, and 21 percent of coastal waters are impaired due to high 
levels of nutrients.
    You can see the location of many of these contaminated waters on 
this second map on the screen--and, Mr. Chairman, I ask unanimous 
consent that both maps be made part of today's hearing record.
    What is worse is that, according to EPA data, the percentage of 
nutrient impaired waterways is increasing, even with substantial 
investment in our nation's wastewater infrastructure.
    Clearly, more needs to be done.
    Unfortunately, in my opinion, every water bill advanced by this 
Committee in this Congress would needlessly weaken federal and state 
efforts to protect our waters from pollution, such as excessive 
nutrients.
    In my opinion, every water bill advanced in this Congress would 
result in more waterbodies being impaired by contamination, such as 
harmful algal blooms, not less.
    Now is not the time to pull back on federal investments in our 
wastewater infrastructure.
    Now is not the time to weaken federal and state efforts to protect 
our nation's waters.
    Now is not the time to weaken our clean water future.
    I welcome our panelists here today and look forward to their valued 
input.
    I yield back the balance of my time.

                                 
       Maps, Submitted for the Record by Hon. Grace F. Napolitano






    Mrs. Napolitano. And I would like to have unanimous consent 
that a letter from the National Wildlife Federation, dated May 
16, 2023, be included today as part of the hearing record.
    Mr. Rouzer. Without objection.
    [The information follows:]

                                 
Letter of May 16, 2023, to Hon. David Rouzer, Chairman, and Hon. Grace 
  F. Napolitano, Ranking Member, Subcommittee on Water Resources and 
   Environment, from Jim Murphy, Director, Legal Advocacy, National 
    Wildlife Federation, Submitted for the Record by Hon. Grace F. 
                               Napolitano
                                                      May 16, 2023.
The Honorable David Rouzer,
Chair,
House Transportation and Infrastructure Committee, Subcommittee on 
        Water Resources and Environment, 2165 Rayburn House Office 
        Building, Washington, DC 20515.
The Honorable Grace F. Napolitano,
Ranking Member,
House Transportation and Infrastructure Committee, Subcommittee on 
        Water Resources and Environment, 2164 Rayburn House Office 
        Building, Washington, DC 20515.
    Dear Chairman Rouzer and Ranking Member Napolitano,
    On behalf of the National Wildlife Federation and our nearly seven 
million members and supporters, we urge you to reject attempts to 
undermine critical Clean Water Act tools that protect our nation's 
waters and wildlife habitat as well as ensure continued access to 
cultural resources, traditions, and outdoor recreation.
    The National Wildlife Federation is the nation's largest 
conservation education and advocacy organization with a long history of 
interest and involvement in the management and protection of the 
nation's rich array of water resources. We have championed clean and 
healthy rivers and streams since our founding in 1936. Conserving our 
nation's wetlands, streams, and rivers for fish, wildlife, and 
communities is at the core of our mission. We worked closely with 
Senator Muskie to pass the Clean Water Act in 1972 and have worked hard 
to fulfill its promise of clean water for all Americans ever since.
                        Clean Water Act Overview
    The bipartisan Clean Water Act was signed into law to address the 
dire water quality crisis facing our country. The Clean Water Act aims 
to prevent, reduce, and eliminate pollution and destruction of our 
waters in order to ``restore and maintain the chemical, physical and 
biological integrity of the Nation's waters,'' with a goal to make all 
waters in the United States ``swimmable and fishable'' by 1983. While 
this goal has yet to be achieved, the law has improved the health of 
many waters nationwide and prevented deterioration in many more.\1\ As 
a result, the number of waters that meet clean water goals has doubled 
since the passage of the Clean Water Act.
---------------------------------------------------------------------------
    \1\ National Wildlife Federation. Five Decades of Clean Water. 
https://www.nwf.org/Educational-Resources/Reports/2022/Five-Decades-of-
Clean-Water
---------------------------------------------------------------------------
Strong Measures to Protect Clean Water are Still Needed and Enjoy Broad 
                                Support
    Today however, the majority of our waterways are considered 
``impaired'' and still don't meet standards safe enough for activities 
like fishing and swimming.\2\ Poll after poll shows that the public 
overwhelmingly wants the clean, fishable, and swimmable waters promised 
by the Clean Water Act. A recent survey found that the vast majority of 
Americans strongly support Clean Water Act protections, with 75% of 
Americans in favor of protecting more waters and wetlands 
nationwide.\3\ At a time when aging water infrastructure and changing 
precipitation patterns as a result of climate change threatens to 
worsen water quality challenges, Congress should heed the public and 
protect Clean Water Act regulatory safeguards, not weaken them.
---------------------------------------------------------------------------
    \2\ Environmental Integrity Project. https://
environmentalintegrity.org/wp-content/uploads/2022/03/Revised-CWA-
report-3.29.22.pdf
    \3\ Morning Consult survey on behalf of the Walton Family 
Foundation. https://www.waltonfamilyfoundation.org/learning/access-and-
availability-to-clean-water-is-a-concern-nationwide
---------------------------------------------------------------------------
    Similarly, Congress should invest in important programs authorized 
by the Clean Water Act to help communities address water quality 
challenges, by upgrading wastewater and stormwater infrastructure and 
constructing water quality improvement projects. When outdated sewer 
systems dump raw sewage and polluted runoff into local waters or human 
and industrial waste bubbles back up directly into homes and streets, 
it is often communities of color and low-income communities that are 
disproportionately impacted by health and environmental burdens. 
Communities that depend on fishing for sustenance and for cultural 
practices, are particularly at risk from impaired water quality. While 
the Infrastructure Investment and Jobs Act of 2021 provided historic 
funding to help communities address wastewater and stormwater 
infrastructure challenges, prevent raw sewage from spilling into local 
waters, and improve water quality, Congress must build on these 
investments and ensure the Clean Water Act continues to protect water 
quality across the country.
      Healthy Waters Protect Communities, Wildlife, and Economies
    For many states, the health of the economy and state residents is 
directly linked to the health of the state's natural resources. To 
protect the health and welfare of state residents, economic 
productivity must be fostered while also protecting water supplies and 
waterways crucial to the health and welfare of all citizens, as well as 
to businesses that depend on clean water. Agriculture, commercial 
fisheries, outdoor recreation, and tourism, and manufacturing--all 
depend upon abundant clean water. Small streams and wetlands that have 
long been protected under the Clean Water Act provide clean water for 
farmers, keep the economy afloat, protect communities from floods, and 
serve as natural features to promote drought resilience. Wetlands help 
absorb floodwaters; one single acre of wetland can store 1 to 1.5 
million gallons of floodwaters.\4\ Nationwide, the craft brewing 
industry, notably dependent on clean water supplies, contributed $76.3 
billion to the U.S. economy in 2021, more than 490,000 jobs.\5\ The 
fish and wildlife that sustain our outdoor passions and support the 
nation's $867 billion outdoor recreation economy rely on these small 
streams and wetlands as well.\6\ In some rural, mountain communities, 
river recreation and related activities generate the largest share of 
the local economy. Ephemeral and tributary streams serve as important 
spawning grounds as well as nursery habitat for juvenile fish, such as 
salmon and trout. Roughly half of North American waterfowl hatch in the 
Prairie Pothole Region and more than a third of North American bird 
species rely on wetlands for food, shelter, breeding, nesting, and 
rearing their young.
---------------------------------------------------------------------------
    \4\ Environmental Protection Agency, Functions and Values of 
Wetlands, EPA 843-F-01-002c (2001) (factsheet)
    \5\ Brewers Association. https://www.brewersassociation.org/
statistics-and-data/economic-impact-data/
    \6\ Outdoor Industry Association. https://outdoorindustry.org/
advocacy
---------------------------------------------------------------------------
    Events in recent years demonstrate how increased pollution in and 
degradation of these streams, rivers, and wetlands can have devastating 
impacts on public health, drinking water supplies, local economies, and 
fish and wildlife habitat across the country. In 2014, a harmful algal 
bloom in Lake Erie resulted in a three-day shutdown of Toledo, Ohio's 
drinking water supply. In South Florida, recurring toxic algae and red 
tide outbreaks have decimated local economies and aquatic wildlife; an 
estimated 4.4 million pounds of dead marine life were removed from Lee 
County beaches between June-September 2018. Floods along the 
Mississippi and Missouri River watersheds, and in communities such as 
Houston, Texas which was hit by Hurricane Harvey in 2017, demonstrate 
how the destruction of critical floodplain wetlands can exacerbate the 
severity and duration of flood events and increase the financial 
impacts to local communities, homeowners, farmers, economies, and 
businesses.
The Clean Water Act's Framework of Cooperative Federalism Should Remain 
                                 Strong
    The Clean Water Act established vital tools for ensuring continued 
progress towards the fundamental objective of fishable, swimmable 
waters. The law's regulatory framework is founded on strong federal-
state partnerships (cooperative federalism) and safeguards that apply 
to protect waters. This framework allows states to avoid having to 
impose costly, disproportionate, and economically harmful limits on 
instate pollution sources to waters within their borders, in order to 
offset upstream discharges that would otherwise go unregulated if the 
upstream waters are deemed to fall outside the Act's coverage and are 
not adequately controlled by upstream states.
    Central to the Act's structure is the Section 301 prohibition of 
discharges of pollutants, including dredged or fill material, from 
point sources into waters of the United States without a federal permit 
under either Section 402 or 404 of the Act. Section 404 of the Clean 
Water Act establishes a permit program to regulate the discharge of 
dredged or fill material into waters of the United States, including 
wetlands, unless the activity is exempt, like certain farming and 
forestry activities. These safeguards minimize the harm from some 
80,000 activities each year, that include large scale mining 
operations, development projects, water resource projects (such as dams 
and levees), and transportation projects (such as highways and 
airports).\7\ Section 404 is largely administered by the U.S. Army 
Corps of Engineers, but implementation can be delegated to the states 
or Tribes. Currently, three states--Michigan, New Jersey, and Florida--
administer the Section 404 program.
---------------------------------------------------------------------------
    \7\ Army Corps of Engineers. https://www.iwr.usace.army.mil/
Missions/Value-to-the-Nation/Regulatory/Regulatory-Permits/
---------------------------------------------------------------------------
    Section 404(c) ensures effective oversight of the Clean Water Act 
404 program and serves as an action of last resort to stop the most 
unacceptably damaging activities. The US Army Corps of Engineers 
approves more than 99% of the 80,000 permit applications it processes 
under the 404 program each year, approving millions of permitted 
activities. Section 404(c), grants the EPA the authority to restrict, 
prohibit, deny, or withdraw the use of an area as a disposal site for 
dredged or fill material if the discharge will have unacceptable 
adverse effects on municipal water supplies, shellfish beds and fishery 
areas, wildlife, or recreational areas. During the entire 50-year 
history of the Clean Water Act, EPA has only used Section 404(c) as a 
last resort for 14 projects, with the vast majority issued by 
Republican administrations. EPA's use of its veto authority remains 
extremely limited and wholly within the bounds of the statutory 
language that has been in place since the Clean Water Act was enacted 
with overwhelming bipartisan support. EPA has used its veto authority 
in the below 14 instances to protect aquatic resources, wildlife, and 
communities:
      Pebble Deposit Area, AK. In 2023, the Biden 
Administration used Section 404(c) to protect 2,108 acres of wetlands 
and 99.7 miles of streams in the Bristol Bay watershed in Alaska that 
provide unparalleled, globally significant, ecological and cultural 
values. The Bristol Bay watershed provides intact, connected habitats--
from headwaters to ocean--that support abundant, genetically diverse 
wild Pacific salmon populations, which in turn help to maintain the 
productivity of the entire ecosystem, including numerous other fish and 
wildlife species.

      Spruce No. 1 Surface Mine, WV. In 2011, the Obama 
Administration used Section 404(c) to protect 6.6 miles of some of the 
last remaining high quality headwater stream and riparian habitat in 
Appalachia. These streams provide critical hydrologic and biological 
functions and important habitat for many wildlife species (the project 
would also disturb 2,278 acres of vital habitat).

      Yazoo Backwater Area Pumps Project, MS. In 2008, the Bush 
Administration used Section 404(c) to protect more than 67,000 acres of 
some of the richest wetlands in the country. Located in the heart of 
the Mississippi River flyway, these hemispherically significant 
wetlands are used by 29 million migrating birds each year. This action 
also saved federal taxpayers well over $220 million.

      Two Forks Reservoir, VA. In 1990, the first Bush 
Administration used Section 404(c) to protect 300 acres of wetlands and 
30 miles of the South Platte River, including 14 miles designated by 
the State of Colorado as a ``gold medal'' trout stream, 281 acres of 
riffle and pool complexes, and the Cheesman Canyon wilderness area.

      Big River Reservoir, RI. In 1990, the first Bush 
Administration used Section 404(c) to protect 575 acres of exceptional 
and diverse natural wetlands with habitat for an assemblage of wildlife 
species.

      Ware Creek Reservoir, VA. In 1989, the first Bush 
Administration used Section 404(c) to protect a 425 acres mosaic of 
high quality aquatic resources in the Chesapeake Bay watershed, 
including critical fish nurseries.

      Lake Alma, GA. In 1988, the Reagan Administration used 
Section 404(c) to protect 1,155 acres of bottomland hardwood wetlands 
providing important habitat for an assemblage of species.

      Henry Rem Estates, FL. In 1988, the Reagan Administration 
used Section 404(c) to protect 432 acres of Everglades wetlands 
providing significant fish and wildlife habitat including potential 
Florida panther habitat.

      Russo Development Corp., NJ. In 1988, the Reagan 
Administration used Section 404(c) to protect 58 acres of wetlands 
within the Atlantic Flyway used by a multitude of State threatened and 
endangered species.

      Attleboro Mall (Sweeden's Swamp), MA. In 1986, the Reagan 
Administration used Section 404(c) to protect 45 acres of New England 
red maple forested swamp, including high-quality habitat for a variety 
of wildlife.

      Bayou aux Carpes, LA. In 1985, the Reagan Administration 
used Section 404(c) to protect 3,000 acres of essential wetlands 
including habitat for osprey and American alligator.

      Maybank Site, Jehossee Island, SC. In 1985, the Reagan 
Administration used Section 404(c) to protect 900 acres of coastal 
intertidal marsh including valuable spawning and nursery grounds for 
blue crab and shrimp.

      M.A. Norden Co., Inc., AL. In 1984, the Reagan 
Administration used Section 404(c) to protect 25 acres of forested and 
emergent wetland--one of the last remaining wetlands in the Mobile 
area.

      North Miami Landfill, FL. In 1981, the Carter 
Administration used Section 404(c) to protect 103 acres of wetlands and 
other aquatic resources including essential nursery grounds for marine 
fish and invertebrates.

    Clean Water Act Section 402 established the National Pollutant 
Discharge Elimination System (NPDES) Program, which requires a permit 
for discharges of point source pollution into our waters. Permits 
contain discharge limits, monitoring and reporting requirements, and 
other provisions to ensure that discharges aren't polluting the water 
in question in a way that impacts its ability to provide drinking 
water, or serve purposes like fishing and recreating. Importantly, 
NPDES permits issued to state and municipal dischargers have permit 
limits of five years, which allows the implementation of needed 
infrastructure upgrades while also providing a way to ensure that 
pollution controls remain effective as conditions change. When NPDES 
permits are issued or renewed, it allows the public to weigh in on the 
conditions and limitations applying to pollution dischargers. This five 
year permit term limit ensures that discharge limits are adjusted 
regularly to account for updated water quality and pollution control 
standards that are reflective of the best science and technology 
available. Currently, 47 states implement their own EPA-approved point 
source discharge permit programs, demonstrating the Clean Water Act's 
cooperative federalism framework.
    Clean Water Act Section 401 is a cornerstone of the federal 
structure envisioned by the Clean Water Act, providing a regulatory 
framework for states and tribes to work cooperatively with the federal 
government to ensure that their aquatic resources are protected from 
potential impacts related to federally issued permits and licenses. 
This allows states and Tribes to protect the water quality of 
waterbodies that communities and wildlife rely on for drinking water, 
recreation, cultural practices, and habitat. This program has been 
instrumental in ensuring that federally licensed and permitted 
projects, such as dams, pipelines, and transportation projects, proceed 
in a manner that protects important waters uses that communities and 
wildlife rely on such as safe drinking water, adequate flow, fish 
passage, and recreational access. The vast majority of certifications 
are processed quickly and often allow projects to move forward with 
protective conditions. It is critical that states and tribes retain 
broad authority to review and impose protective conditions on projects 
that may impact their water quality--not just the point-source 
discharge itself but the project ``activity as a whole,'' pursuant to 
Section 401 of the Clean Water Act.
    The Army Corps of Engineers plays an important role in Clean Water 
Act enforcement and implementation as well. As stated above, the Corps 
of Engineers reports that it typically issues about 80,000 permit 
decisions and 50,000 jurisdictional determinations each year.\8\ ``More 
than 97% of the Corps' regulatory workload is processed in the form of 
general permits.'' \9\ While recent data on the number of permits 
denied is not readily available, in 2010 the Corps denied just 0.4 
percent of permits requested (275 were denied out of a total of 68,000 
permit decisions). Permit reviews could be expedited by increasing 
appropriations to the Corps' regulatory program. Over the past 20 
years, the Corps' regulatory program budget has been declining in real 
dollars when adjusted for inflation, despite the Corps' significant 
regulatory work load.
---------------------------------------------------------------------------
    \8\ Army Corps of Engineers. https://www.iwr.usace.army.mil/
Missions/Value-to-the-Nation/Regulatory/Regulatory-Permits/
    \9\ Congressional Research Service. https://www.everycrsreport.com/
reports/97-223.html
---------------------------------------------------------------------------
    The National Wildlife Federation urges Congress to reject any 
attempts to undermine critical Clean Water Act tools that protect our 
nation's waters, communities, and wildlife habitat as well as ensure 
continued access to cultural resources, traditions, and outdoor 
recreation. We must build on the clean water successes over the past 50 
years and ensure that all communities, including Tribal nations, 
benefit from the protections of the Clean Water Act.
            Sincerely,
                                                Jim Murphy,
            Director, Legal Advocacy, National Wildlife Federation.

    Mrs. Napolitano. I yield back the balance of my time.
    Mr. Rouzer. The gentlelady yields.
    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.
    So, my State is defined by its clean water, from the Puget 
Sound to the hundreds of lakes and thousands of miles of rivers 
and streams throughout Washington. Washingtonians know that 
protecting these rivers, streams, and wetlands takes work and 
attention, and that the health of one body of water is 
intrinsically connected to the health of another.
    Our waters and water-related economy depend upon the 
protections of the Clean Water Act and its pollution prevention 
programs. It is more effective and less costly to prevent 
pollution than to clean up pollution. That is true in my State. 
It is true in every State and Territory.
    The Puget Sound has several programs and authorities 
dedicated to its recovery, but even with these investments, 
progress remains slow. Improved water quality is a foundation 
of recovery and is essential to other goals like habitat 
restoration, increasing species population, and improving the 
resiliency of the Sound.
    So, when this committee passed the Clean Water Act over 50 
years ago, Members recognized the effectiveness and importance 
of comprehensive pollution prevention measures rather than 
simply investing in pollution cleanups. In passing the CWA, 
Congress specifically noted that the State-by-State, go-it-
alone approach was, quote, ``inadequate in every vital 
aspect,'' end quote, and left waters severely polluted and 
expensive to restore.
    So, for decades, Republicans and Democrats shared these 
bipartisan principles to achieve clean water: Maintain a strong 
Federal-State partnership to protect our waters, stop pollution 
from entering the system in the first place, and support a 
robust Federal floor of protections while allowing States to do 
more but not less.
    Last Congress, we passed the Bipartisan Infrastructure Law, 
affirming our commitment to improving our infrastructure. The 
BIL included significant investment in our water 
infrastructure, providing $13.8 billion in Federal dollars for 
upgrading our wastewater systems, preventing pollution 
discharges, and supporting restoration programs in places like 
the Puget Sound, but many other places as well.
    These investments are critical, providing a lifeline to 
communities across the country struggling to maintain water 
quality. Members who voted for the BIL voted for clean water.
    Such a large Federal investment requires careful oversight 
to ensure that congressional intent is met. On that, we have 
agreement.
    Communities are best served if agencies get the programs 
set up and get those funds out the door quickly. On that, we 
also have agreement.
    Where we diverge, however, is using these investments 
sometimes as an excuse to weaken the Clean Water Act under the 
guise of expediting projects. We will hear testimony today 
about how project delivery reforms that may sound good can have 
an adverse impact on water quality.
    Clean Water Act investments have led to significant 
progress in restoring the chemical, physical, and biological 
integrity of our waters. Still, a lot of work remains to be 
done. EPA data indicates that the percentage of impaired waters 
is back on the rise.
    Impaired waters are those that do not meet water quality 
standards, and today, a leading cause of impairment is excess 
nutrients. I think almost everyone on this committee has water 
bodies in their district that are threatened by harmful algal 
blooms and other algal growth fueled by excessive nutrients.
    As we saw on the map from NOAA, there are harmful algal 
bloom outbreaks across the country: Florida, the Chesapeake 
Bay, the Great Lakes, and, of course, in the Pacific Northwest. 
We all have significant outbreaks. Virtually no region is 
untouched.
    So, I can't support weakening clean water protections and 
increasing the chance of excess nutrients and pollution 
entering water systems. So, I urge my colleagues representing 
affected regions on this map to think through what weaker 
protections means for constituents.
    This is just one example of a growing water quality 
problem. Removing or weakening protections now will cost more 
in the future, even without other factors making the situation 
worse.
    Yet we know that climate change threatens our water supply, 
water quality, and water ecosystems--so, other factors will 
come into play.
    Now is not the time to retreat on the goals and intent of 
the Clean Water Act. I encourage ideas to get the Bipartisan 
Infrastructure Law funding to our communities faster, but ideas 
that put polluters over people and saddle the public with the 
cost of cleanup are not sustainable.
    I thank the witnesses for joining us today, and I look 
forward to your testimony.
    With that, I yield back.
    [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, from the Puget Sound to the 
hundreds of lakes and thousands of miles of rivers and streams 
throughout Washington.
    Washingtonians know that protecting these rivers, streams and 
wetlands takes work and attention, and that the health of one body of 
water is intrinsically connected to the health of another.
    Our waters and our water-related economy depend on the protections 
of the Clean Water Act and its pollution-prevention programs.
    It is more effective and less costly to prevent pollution than to 
clean up pollution. This is true in my state and across the nation.
    The Puget Sound has several programs and authorities dedicated to 
its recovery, but even with these investments, progress remains slow.
    Improved water quality is the foundation of recovery, and is 
essential to other goals like habitat restoration, increasing species 
population and improving the resilience of the Sound.
    When this Committee passed the Clean Water Act over 50 years ago, 
Members recognized the effectiveness and importance of comprehensive 
pollution prevention measures rather than simply investing in pollution 
cleanups.
    In passing the CWA, Congress specifically noted that the state-by-
state, go-it-alone approach was ``inadequate in every vital aspect'' 
and left waters severely polluted and expensive to restore.
    For decades, Republicans and Democrats shared these bipartisan 
principles to achieve clean water: maintain a strong federal-state 
partnership to protect our waters; stop pollution from entering the 
system in the first place; and support a robust federal floor of 
protections while allowing states to do more, but not less.
    Last Congress, we passed the Bipartisan Infrastructure Law, 
affirming our commitment to improving our infrastructure. The BIL 
included significant investment in our water infrastructure--providing 
$13.8 billion in federal dollars for upgrading our wastewater systems, 
preventing pollution discharges and supporting restoration programs in 
places like the Puget Sound.
    These investments are critical, providing a lifeline to communities 
across the country struggling to maintain water quality. Members who 
voted for the BIL voted for clean water.
    Such a large federal investment requires careful oversight to 
ensure that Congressional intent is met. On that, we have agreement.
    Communities are best served if agencies get programs set up and get 
these funds out the door quickly. On that, we also have agreement.
    Where we diverge, however, is using these investments as an excuse 
to weaken the Clean Water Act, under the guise of expediting projects. 
We will hear in testimony today about project delivery reforms that may 
sound good but can have an adverse impact on water quality.
    Clean Water Act investments have led to significant progress in 
``restoring the chemical, physical and biological integrity'' of our 
waters. Still, a lot of work remains to be done. EPA data indicates 
that the percentage of impaired waters is back on the rise.
    Impaired waters are those that do not meet water quality standards 
and, today, a leading cause of impairment is excess nutrients. I think 
almost everyone on this committee has waterbodies in their districts 
that are threatened by harmful algal blooms or other algal growth 
fueled by excessive nutrients.
    As we saw on the map from NOAA, there are harmful algal bloom 
outbreaks across the country. Florida, the Chesapeake Bay, the Great 
Lakes and the Pacific Northwest all have significant outbreaks--and 
virtually no region is untouched.
    I cannot support weakening clean water protections and increasing 
the chance of excess nutrients and pollution entering our systems. I 
urge my colleagues representing affected regions on this map to think 
through what weaker protections means for your constituents.
    This is just one example of a growing water quality problem. 
Removing or weakening protections now will cost more in the future, 
even without other factors making the situation worse.
    Yet we know that climate change threatens our water supply, water 
quality and water ecosystems--so other factors will come into play.
    Now is not the time to retreat on the goals and intent of the Clean 
Water Act. I encourage ideas to get Bipartisan Infrastructure Law 
funding to communities faster, but ideas that put polluters over people 
and saddle the public with the costs of cleanup are not sustainable 
solutions.
    I thank the witnesses for joining us today and I look forward to 
your testimony.

    Mr. Rouzer. The gentleman yields back.
    I would now like to introduce our witnesses and thank them 
for being here today.
    First is Dr. Andrea Travnicek, director of the Department 
of Water Resources, State of South Dakota--North Dakota, pardon 
me, pardon me. I had Dusty Johnson on my mind, my apologies. 
The Honorable Serena Coleman McIlwain, secretary, Department of 
the Environment, State of Maryland; Mr. Mickey Conway, chief 
executive officer of Metro Water Recovery in Denver, Colorado, 
and he is here on behalf of the National Association of Clean 
Water Agencies; and Mr. Brandon Farris, vice president for 
energy and resources policy, National Association of 
Manufacturers.
    Now, briefly, and you all know this, but I want to take a 
moment to explain the lighting system to the witnesses. There 
are three lights in front of you. Green, obviously, is go; 
yellow means your time is running short; and then, of course, 
red means that it is time to wrap it up just as quickly as you 
can.
    I ask unanimous consent that the witnesses' full statements 
be included in the record.
    Without objection, so ordered.
    As your written testimony has been made part of the record, 
the subcommittee asks that you limit your oral remarks to 5 
minutes.
    With that, Dr. Travnicek, you are recognized for your 5 
minutes.

TESTIMONY OF ANDREA J. TRAVNICEK, Ph.D., DIRECTOR, NORTH DAKOTA 
 DEPARTMENT OF WATER RESOURCES; HON. SERENA COLEMAN McILWAIN, 
   SECRETARY, MARYLAND DEPARTMENT OF THE ENVIRONMENT; MICKEY 
CONWAY, CHIEF EXECUTIVE OFFICER, METRO WATER RECOVERY, DENVER, 
COLORADO, ON BEHALF OF THE NATIONAL ASSOCIATION OF CLEAN WATER 
   AGENCIES; AND BRANDON FARRIS, VICE PRESIDENT, ENERGY AND 
    RESOURCES POLICY, NATIONAL ASSOCIATION OF MANUFACTURERS

TESTIMONY OF ANDREA J. TRAVNICEK, Ph.D., DIRECTOR, NORTH DAKOTA 
                 DEPARTMENT OF WATER RESOURCES

    Ms. Travnicek. Good morning, Chairman Rouzer, Ranking 
Member Napolitano, and members of the subcommittee. Thank you 
for the invitation to testify today on the impact of the Clean 
Water Act on infrastructure project completion.
    My name is Andrea Travnicek, and I am the director of the 
North Dakota Department of Water Resources. The Department is 
charged with managing the use of the State's waters.
    In managing North Dakota's waters, the Department works 
closely with other State agencies. We understand North Dakota's 
unique hydrological landscape. North Dakota has over 1 million 
wetlands covering approximately 6 percent of the entire State. 
Many of these wetlands are in North Dakota's prairie pothole 
region and may be isolated and temporary. North Dakota 
diligently protects these wetlands and all its waters, both 
surface and subsurface, while at the same time encouraging 
appropriate economic development for beneficial use by 
agriculture, oil and gas, and other industries. We take these 
management responsibilities very seriously, and strongly 
believe that North Dakota's waters are better protected and 
more effectively managed by North Dakota agencies than by 
Federal agencies headquartered in Washington, DC.
    Over the past decade, North Dakota has vigorously resisted 
Federal intrusion into the management of its State's waters, 
including the EPA's and Corps latest rule defining ``waters of 
the United States,'' or WOTUS, for purposes of the Clean Water 
Act. Currently, North Dakota and 23 other States are 
challenging the rule in a lawsuit brought in North Dakota 
Federal District Court. Recognizing the rule's harmful impacts, 
Judge Hovland issued a preliminary injunction order that 
prohibits application of the rule in the plaintiff States. As a 
result, the pre-2015 regulatory regime remains in place in 
North Dakota.
    If the new WOTUS rule went into effect in North Dakota, the 
Department would be directly impacted because it manages 
numerous large water infrastructure projects and assists with 
flood control and water supply projects throughout the State. 
With these projects, the Department is often in the position of 
applying for dredge and fill permits from the Corps under 
section 404 of the Clean Water Act. Under the rule, the 
Department would be forced to undertake an expensive 
jurisdictional analysis for these projects to determine if they 
impact WOTUS under the expanded definition and are thus subject 
to section 404 permitting requirements.
    For example, the Northwest Area Water Supply, or NAWS, 
which is owned by the State of North Dakota, intends to bring 
water to 81,000 North Dakota citizens in the north central 
prairie pothole region of our State with a greatly improved 
water supply, both in terms of quality and quantity. Many 
cities and rural areas in the NAWS project area have domestic 
water supplies that do not meet minimum drinking water 
standards. The benefits of NAWS include not only a clean and 
abundant supply of water for the residents in North Dakota, but 
more opportunities for potential industries and a stronger 
economy. To date, Federal, State, and local partners have 
already invested over $350 million into NAWS projects, with an 
additional $85 million in water investments planned. The risk 
of NAWS infrastructure being potentially adversely impacted by 
this rule is unthinkable and could have tremendous human health 
and economic impacts to the State.
    Intrusive Federal regulation may have unintended 
consequences that are harmful to the environment. The new WOTUS 
rule would also result in additional costly evaluations to 
determine section 404 permitting requirements for other 
underground pipelines being built in the State as well. 
Pipelines may need to be rerouted with excessive reengineering 
costs, permitting delays, or perhaps canceled altogether. This 
could impact pipelines needed to transport natural gas to 
reduce flaring and meet the State's target of reaching 98 to 
100 percent gas capture and zero percent routine flaring by 
2030. To meet this target of eliminating flaring, the gas 
gathering and processing industry needs to construct thousands 
of miles of natural gas pipelines per year for the next 10 to 
15 years. The rule would also impact the ability to construct 
the thousands of miles of pipelines needed to transport carbon 
dioxide to meet national carbon capture and storage goals.
    Even without the new rule, section 404 permitting 
requirements cause harmful delays that could lead to cost 
increases, especially in North Dakota's prairie pothole region, 
where it is often subjective as to whether WOTUS will be 
impacted. Section 404 permitting delays are also especially 
harmful in North Dakota, due to our short construction season. 
A loss of one construction season carries through the entire 
infrastructure program, resulting in cumulative increased 
trucking and the associated environmental impacts to air 
quality, as well as increases in costs.
    In addition to rescinding the new WOTUS rule, one solution 
to ease overly stringent Federal permitting requirements would 
be to adopt State-specific regional conditions for the Corps' 
Nationwide Permit 12, which applies to oil and gas pipelines; 
and Nationwide Permit 58, which applies to any linear utility 
line. State regional conditions should be adopted into these 
nationwide permits to address Federal and State environmental 
concerns as we proposed to the Corps as recently as October 
2020. Another area for improvement would be to have more 
consistent application of section 404 permitting requirements 
by Corps staff and to address staffing issues at the agency 
that exacerbate permitting delays.
    North Dakota has a significant interest both in the proper 
management and protection of its State waters and in improving 
its infrastructure to support public health, safety, and the 
economy. We appreciate the partnership of the Federal agencies 
in achieving these goals, but our Federal partners must respect 
States' rights. The EPA and the Corps should work with States 
to reduce uncertainties and inconsistencies in section 404 
permitting and other Clean Water Act programs to improve the 
ability of States to timely complete important infrastructure 
projects.
    [Ms. Travnicek's prepared statement follows:]

                                 
   Prepared Statement of Andrea J. Travnicek, Ph.D., Director, North 
                  Dakota Department of Water Resources
    Chairman Rouzer, Ranking Member Napolitano, and members of the 
Subcommittee, thank you for the invitation to testify today on the 
impact of the Clean Water Act on infrastructure project completion. My 
name is Andrea Travnicek and I am the Director of the North Dakota 
Department of Water Resources. The Department is charged with managing 
use of the state's waters.
    In managing North Dakota's waters, the Department works closely 
with other state agencies. We understand North Dakota's unique 
hydrological landscape. North Dakota has over one million wetlands, 
covering approximately six percent of the entire state. Many of these 
wetlands are in North Dakota's prairie pothole region and may be 
isolated and temporary. North Dakota diligently protects these wetlands 
and all its waters, both surface and subsurface, while at the same time 
encouraging appropriate economic development for beneficial use by 
agriculture, oil and gas, and other industries. We take these 
management responsibilities very seriously, and strongly believe that 
North Dakota's waters are better protected and more effectively managed 
by North Dakota agencies than by federal agencies headquartered in 
Washington, D.C.
    Over the past decade, North Dakota has vigorously resisted federal 
intrusion into the management of its state waters, including the EPA's 
and Corps latest rule defining ``Waters of the United States''--or 
WOTUS--for purposes of the Clean Water Act. Currently, North Dakota and 
23 other states are challenging the rule in a lawsuit brought in North 
Dakota Federal District Court. Recognizing the rule's harmful impacts, 
Judge Hovland issued a preliminary injunction order that prohibits 
application of the rule in the plaintiff states. As a result, the pre-
2015 regulatory regime remains in place in North Dakota.
    If the new WOTUS rule went into effect in North Dakota, the 
Department would be directly impacted because it manages numerous large 
water infrastructure projects and assists with flood control and water 
supply projects throughout the state. With these projects, the 
Department is often in the position of applying for dredge and fill 
permits from the Corps under Section 404 of the Clean Water Act. Under 
the rule, the Department would be forced to undertake an expensive 
jurisdictional analysis for these projects to determine if they impact 
WOTUS under the expanded definition and are thus subject to Section 404 
permitting requirements.
    For example, the Northwest Area Water Supply, or NAWS, which is 
owned by the State of North Dakota, intends to bring water to 81,000 
North Dakota citizens in the north central prairie pothole region of 
our state with a greatly improved water supply--both in terms of 
quality and quantity. Many cities and rural areas in the NAWS project 
area have domestic water supplies that do not meet minimum drinking 
water standards. The benefits of NAWS include not only a clean and 
abundant supply of water for the residents of North Dakota, but more 
opportunities for potential industries and a stronger economy. To date, 
federal, state, and local partners have already invested over $350 
million into NAWS project works, with an additional $85 million in 
future investments planned. The risk of NAWS infrastructure being 
potentially adversely impacted by this rule is unthinkable, and could 
have tremendous human health and economic impacts in our state.
    Intrusive federal regulation may have unintended consequences that 
are harmful to the environment. The new WOTUS rule would also result in 
additional costly evaluations to determine Section 404 permitting 
requirements for underground pipelines being built in the state. 
Pipelines may need to be rerouted with excessive reengineering costs, 
permitting delays, or perhaps canceled altogether. This could impact 
pipelines needed to transport natural gas to reduce flaring and meet 
the state's target of reaching 98-100% gas capture and 0% routine 
flaring by 2030. To meet this target of eliminating flaring, the gas 
gathering and processing industry needs to construct thousands of miles 
of natural gas pipelines per year for the next ten to fifteen years. 
The rule would also impact the ability to construct the thousands of 
miles of pipelines needed to transport carbon dioxide to meet national 
carbon capture and storage goals.
    Even without the new rule, Section 404 permitting requirements 
cause harmful delays that lead to costs increases, especially in North 
Dakota's prairie pothole region where it is often subjective as to 
whether WOTUS will be impacted. Section 404 permitting delays are 
especially harmful in North Dakota, due to our short construction 
season. A loss of one construction season carries through the entire 
infrastructure program resulting in cumulative increased trucking and 
the associated environmental impacts to air quality.
    In addition to rescinding the new WOTUS rule, one solution to ease 
overly stringent federal permitting requirements would be to adopt 
state specific regional conditions for the Corps' Nationwide Permit 12, 
which applies to oil and gas pipelines, and Nationwide Permit 58, which 
applies to any linear utility line. State regional conditions should be 
adopted into these Nationwide Permits to address federal and state 
environmental concerns as we proposed to the Corps as recently as 
October 2020. Another area for improvement would be to have more 
consistent application of Section 404 permitting requirements by Corps 
staff and to address staffing issues at the agency that exacerbate 
permitting delays.
    North Dakota has a significant interest both in the proper 
management and protection of its state waters and in improving its 
infrastructure to support public health, safety, and the economy. We 
appreciate the partnership of the federal agencies in achieving these 
goals, but our federal partners must respect states' rights. EPA and 
the Corps should work with states to reduce uncertainties and 
inconsistencies in Section 404 permitting and other Clean Water Act 
programs to improve the ability of states to timely complete important 
infrastructure projects.

    Mr. Rouzer. I thank the gentlelady.
    Secretary McIlwain, you have 5 minutes.

TESTIMONY OF HON. SERENA COLEMAN McILWAIN, SECRETARY, MARYLAND 
                 DEPARTMENT OF THE ENVIRONMENT

    Ms. McIlwain. Thank you. Can you hear me?
    Good morning, Chairman Rouzer, Ranking Member Napolitano, 
Chairman Graves, Ranking Member Larsen, and the members of the 
subcommittee. Thank you for inviting me here today to testify 
on the importance of the Federal Clean Water Act----
    Mr. Rouzer [interrupting]. If you can bring that microphone 
just a little closer to you.
    Ms. McIlwain. How about now? Is this better? All right.
    [Continuing] To the Nation's health, economy, and overall 
quality of life.
    Just over 50 years ago, Congress passed the Clean Water 
Act, and I want to start by reflecting on the history that led 
to the passage. In the late 1960s, rivers were literally 
catching on fire from oil and industrial pollution discharges. 
A 1969 Time magazine article published dramatic photos of fires 
on the Cuyahoga River in Ohio and described a river that 
``oozes rather than flows.'' And I am attaching one of those 
photos for the record, and you can see that here.
    At the same time, Rachel Carson's famous book, ``Silent 
Spring,'' revealed the hazards of pesticides and a historic oil 
well blowout off the coast of Santa Barbara, California, which 
galvanized the public and Congress to take action to protect 
our waters. As a result, President Nixon created the Federal 
Environmental Protection Agency in 1970, and Congress passed 
the Clean Water Act in 1972.
    One of the central goals of the Clean Water Act is to 
ensure that the Nation's waters are fishable and swimmable, and 
that means that our waters are safe for our children to swim in 
and that we can safely consume fish and seafood from our waters 
without fear of getting cancer or being exposed to toxic 
substances. The Clean Water Act also helps to protect drinking 
water sources from contamination.
    The Clean Water Act does this by establishing designated 
uses, for example, as a public water supply, for the Nation's 
regulated waters, setting science-based criteria and standards 
that will meet those uses, and by ensuring that waters meeting 
their uses are not degraded by pollution. The act also allows 
for standards to be set using either water quality or best 
available technology standards.
    And while we have made progress over the years--our waters 
are no longer catching on fire--there is still so much work to 
do to ensure all the Nation's waters are fishable and 
swimmable. At the same time, we have emerging contaminants to 
deal with, like PFAS, and they are contaminating our drinking 
water and fisheries.
    In fact, according to EPA's own data, only 30 percent of 
our rivers and streams are healthy, 40 percent of our Nation's 
lakes have excess nutrients that help fuel algae blooms, only 
71 percent of our estuaries and 31 percent of our Great Lakes 
and near-shore environments have healthy aquatic communities, 
and only 48 percent of our national wetlands have healthy 
biology.
    If we were giving ourselves a report card, four out of five 
of those statistics represents we are failing. I come from 
Maryland. The amazing Chesapeake Bay and its watershed run 
through the heart of our State. And the Chesapeake Bay and its 
tributaries do not just belong to Marylanders. These waters are 
a part of our national identity and heritage.
    The overall health of the Chesapeake Bay and its 
tributaries has dramatically improved as a result of mandates 
under the Clean Water Act; from leadership by Maryland's 
government over the past 50 years; significant Federal, State, 
and local investments; and the commitments and actions by local 
governments. A healthy bay is vital to protect vulnerable 
people from climate change, strengthen our shorelines to buffer 
against waves and storm surges, and support healthy ecosystems 
and fisheries, such as our rockfish, oyster, and crab 
population.
    Since 1985, Maryland has reduced its nitrogen pollution by 
about 40 percent, or about 35 million pounds per year. Data 
collected confirms that water quality in Maryland is trending 
in the right direction. One of our largest reductions in 
pollution comes from wastewater treatment plants, which are 
regulated under State and Federal Clean Water Act permits. A 
total of 67 of the largest, and many of the smaller, facilities 
that treat sewage in Maryland are now operating using cutting-
edge technology. The water is cleaner and able to be reused. 
These environmental successes put Maryland in a national and 
international leadership position. That all began with the 
Clean Water Act.
    Additionally, more than 90 percent of urban runoff in 
Maryland falls under the protection of the Clean Water Act. 
This means by better managing stormwater runoff, we are making 
our communities more spongy, soaking in rain, and so, more 
resilient to storm events, and reducing pollution and flooding.
    In the next 5 years, new permits will add another 11,000 
acres to the 35,000 impervious acres restored under prior 
permits. The restoration is larger than the area of Washington, 
DC, and results from bipartisan environmental leadership 
spanning multiple administrations. These permits drive climate 
resiliency, green infrastructure, and advance innovations such 
as pay-for-success contracting, public-private partnerships, 
and new technologies.
    [Ms. McIlwain's prepared statement follows:]

                                 
Prepared Statement of Hon. Serena Coleman McIlwain, Secretary, Maryland 
                     Department of the Environment
    Good morning Chairman Rouzer, Ranking Member Napolitano, Chairman 
Graves, Ranking Member Larsen, and members of the Subcommittee, thank 
you for inviting me here today to testify on the importance of the 
federal Clean Water Act to the nation's health, economy, and overall 
quality of life.
    Just over 50 years ago, Congress passed the Clean Water Act, and I 
want to start by reflecting on the history that led to its passage. In 
the late 1960s, rivers were literally catching on fire from oil and 
industrial pollution discharges. A 1969 Time magazine article published 
dramatic photos of fires on the Cuyahoga River in Ohio and described a 
river that ``oozes rather than flows.'' (I am attaching one of those 
photos for the record. See Attachment 1.)
    At the same time, Rachel Carson's famous book ``Silent Spring'' 
revealed the hazards of pesticides, and a historic oil-well blowout off 
the Coast of Santa Barbara, California, galvanized the public and 
Congress to take action to protect our waters. As a result, President 
Nixon created the Federal Environmental Protection Agency in 1970, and 
Congress passed the Clean Water Act in 1972.
    One of the central goals of the Clean Water Act is to ensure that 
the nation's waters are fishable and swimmable. That means that our 
waters are safe for our children to swim in and that we can safely 
consume fish and seafood from our waters without fear of getting cancer 
or being exposed to toxic substances. The Clean Water Act also helps to 
protect drinking water sources from contamination.
    The Clean Water Act does that by establishing designated uses, for 
example as a public water supply, for the nation's regulated waters, 
setting science-based criteria and standards that will meet those uses, 
and by ensuring that waters meeting their uses are not degraded by 
pollution. The Act also allows for standards to be set using either 
water quality or best available technology standards.
    And while we have made progress over the years--our waters are no 
longer catching on fire--there is still much work to do to ensure all 
the nation's waters are fishable and swimmable. At the same time, we 
have emerging contaminants to deal with, like PFAS, that are 
contaminating our drinking water and fisheries.
    In fact, according to EPA's own data, only 30% of our rivers and 
streams are healthy, 40% of our nation's lakes have excess nutrients 
that help fuel harmful algae blooms, only 71% of our estuaries and 31% 
of our great lakes and nearshore environments have healthy aquatic 
communities, and only 48% of our national wetlands have healthy 
biology.
    If we were giving ourselves a report card, 4 out of 5 of those 
statistics represent failing grades. I come from Maryland. The amazing 
Chesapeake Bay and its watershed run through the heart of our State. 
And the Chesapeake Bay and its tributaries do not just belong to 
Marylanders, these waters are part of our national identity and 
heritage.
    The overall health of the Chesapeake Bay and its tributaries has 
dramatically improved as a result of mandates under the Clean Water 
Act; leadership by Maryland's government over the last 50 years; 
significant federal, state, and local investments; and the commitments 
and actions by local governments. A healthy Bay is vital to protect 
vulnerable peoples from climate change, strengthen our shorelines to 
buffer against waves and storm surges, and support healthy ecosystems 
and fisheries such as our rockfish, oyster, and crab populations.
    Since 1985, Maryland has reduced its nitrogen pollution by about 
40% or about 35 million pounds per year. Data collected confirms that 
water quality in Maryland is trending in the right direction. One of 
our largest reductions in pollution comes from wastewater treatment 
plants regulated under state and federal Clean Water Act permits. A 
total of 67 of the largest, and many of the smaller, facilities that 
treat sewage in Maryland are now operating using cutting edge 
technology and have been renamed ``water reclamation facilities.'' The 
water is cleaner and able to be reused. These environmental successes 
put Maryland in a national and international leadership position. That 
all began with the Clean Water Act.
    Additionally, more than 90% of urban runoff in Maryland falls under 
the protection of the Clean Water Act. This means by better managing 
stormwater runoff, we are making our communities more spongy, soaking 
in rain, and so more resilient to storm events, and reducing pollution 
and flooding. In the next five years, new permits will add another 
11,000 acres to the 35,000 impervious acres restored under prior 
permits. This restoration is larger than the area of Washington, D.C., 
and results from bipartisan environmental leadership spanning multiple 
administrations. These permits drive climate resiliency, green 
infrastructure, and advance innovations such as pay-for-success 
contracting, public-private partnerships, and new technologies.
    The Water Quality State Revolving Fund, a fund resulting from the 
Clean Water Act, which is capitalized by the U.S. Environmental 
Protection Agency, annually provides about $3.3 billion in funding for 
clean water improvements in Maryland since its inception. The 
Bipartisan Infrastructure Law is providing even more funding to the 
state revolving funds, enabling Maryland to fund additional projects as 
we approach the 2025 Bay Total Maximum Daily Load deadline. In 
particular, the Infrastructure Law is enabling Maryland to provide 
historic levels of loan forgiveness to disadvantaged communities.
    Yet with all the progress and investment, we are still striving to 
fully achieve our fishable and swimmable goals. In fact, we are 
currently taking public comments on a settlement agreement resulting 
from Maryland, other Bay jurisdictions, and NGOs working to enforce 
proper oversight and accountability in restoring the Bay.
    When I think of the next 50 years for the Clean Water Act, it is 
clear we in fact need to work harder to ensure greater accountability, 
be more resolute with compliance and enforcement, and recommit to 
oversight for healthy communities, ecosystems, and to realize the full 
economic prosperity that comes with clean and safe water.
    Clean water is good for our health and good for the economy. This 
is not a binary choice, where we either have clean water or economic 
growth. Rather, we can only have economic growth if we have clean 
water. An EPA study indicated that clean water can increase the 
property value of nearby homes by up to 25 percent. Other studies 
indicate a $1 investment in water and sewer infrastructure yields $6.35 
in gross domestic product output.
    The Chesapeake Bay alone supports almost 34,000 jobs in local 
economies. This includes watermen, commercial trade, tourism, and 
recreation. Each year, the commercial seafood industry in Maryland 
contributes nearly $600 million to our economy. And the dockside value 
of the blue crab harvest in Maryland was $33 million in 2020.
    All the jurisdictions represented on this subcommittee are 
downstream from another jurisdiction, and when upstream jurisdictions 
are not protecting clean water, it not only affects our health but also 
property values downstream. Imagine how much more prosperous we would 
be if Chesapeake Bay and the nation were meeting their clean water 
goals? Government has a key role in this. The private sector does, too, 
to keep water clean and not pass on the costs of pollution to 
downstream communities.
    I want to close by thanking members of this Subcommittee for 
supporting the Bipartisan Infrastructure Law and the historic 
investments in clean water that this law provides. These investments 
represent a down payment on a prosperous clean water future, and we 
still need to do more. All of our citizens not only deserve, but 
require, clean and abundant water for their communities to survive. Now 
is not the time to let up when we are still falling so short of our 
goals.
    Thank you again for this opportunity, and I look forward to the 
discussion.

                                                       Attachment 1


Firemen stand on a bridge over the Cuyahoga River to spray water on the 
   tug Arizona, after an oil slick on the river caught fire in 1952.

    Mr. Rouzer. I thank the gentlelady for her testimony.
    Mr. Conway.

  TESTIMONY OF MICKEY CONWAY, CHIEF EXECUTIVE OFFICER, METRO 
  WATER RECOVERY, DENVER, COLORADO, ON BEHALF OF THE NATIONAL 
              ASSOCIATION OF CLEAN WATER AGENCIES

    Mr. Conway. Good morning. Thank you, Chairman Graves and 
Rouzer, Ranking Members Larsen and Napolitano, and all the 
members of the subcommittee, for the opportunity to testify 
today. I am here on behalf of the National Association of Clean 
Water Agencies, or NACWA, to talk about potential improvements 
to the Clean Water Act.
    My name is Mickey Conway. I am the CEO of Metro Water 
Recovery. We are a clean water treatment and resource recovery 
facility in Denver, Colorado, serving 2.2 million people. It is 
about 40 percent of Colorado's population. And I am also 
privileged to serve on NACWA's board of directors, and honored 
to represent its over 350 public clean water utility members 
that, like Metro, are anchor institutions in protecting public 
health and the environment. This is what we do every day, and 
we are proud to be here to talk about that.
    Clean water utilities today face unprecedented challenges, 
including aging infrastructure, climate resiliency issues, 
managing nutrients and emerging contaminants such as PFAS, and 
those are things that our folks dive into with vigor every day.
    But additionally and just as important to managing those 
issues is managing them in a way that keeps our ratepayers in a 
place that they can pay their bills. Many of the folks in our 
service areas are having trouble paying their rent, they are 
having trouble paying their grocery bills, and much less their 
utility bills. And all of our investments have to make sense 
for them and actually improve water quality. And that really 
especially pertains to those in small rural and economically 
disadvantaged communities.
    So, with all that in mind, there are three key Clean Water 
Act improvements I would like to discuss briefly that will, I 
think, provide, one, regulatory certainty and, two, making sure 
dollars are going towards clean water and not towards 
litigation or changing course and really affecting our 
ratepayers disproportionately.
    These all involve our NPDES permit. So, members like NACWA 
members operate pursuant to permits issued by the National 
Pollution Discharge Elimination System, or NPDES. And these 
permits basically tell us what we can put into the waters. They 
also guide us in our infrastructure projects to make sure we 
can meet the permits.
    And these projects, as you can imagine, are incredibly 
complex. They are very long in term. And changing the rules in 
the middle of the project is like turning the Titanic around. 
You just can't do it. And so, for us, in order to be able to 
deliver clean water at a reasonable price, we have got to be 
able to rely on permit terms and rely on the permit system 
throughout the term of the permit.
    I guarantee that any public servant in front of you will 
tell you that you better have a plan before you dig up city 
streets and spend billions of dollars in infrastructure, and 
that permit is our plan.
    So, Clean Water Act section 402 has a permit shield 
provision, which is expressed in EPA policy at this point. And 
the permit shield is essentially laid out like this: If the 
permittee provides all the necessary information to the permit 
writer, the permit writer incorporates that information and 
includes the necessary limits in the permit. And then at that 
point, the permittee can rely on that permit. Whether or not 
pollutants are expressly laid out in the permit or not, 
whatever is discharged is considered lawful.
    The United States Supreme Court expressed that that was 
all--the entire permit policy is really to express finality of 
the permit, and that is what utilities can rely on. That 
finality is being challenged now in a number of litigations, 
and the methodology of challenging the scope of the permit 
shield is that we are going after pollutants that are not 
expressly laid out in a NPDES permit.
    The problem with that--an example is PFAS--is PFAS is not 
in wastewater permits at this point and will not be for many 
years. If people can sue utilities over discharging PFAS, which 
we as wastewater utilities passively receive, the money that 
our folks who are having a hard time paying bills for is going 
to go to litigation and it is not going to go to cleaning up 
the water. We are working very hard to manage PFAS, but we 
can't also fend off lawsuits for something we can't control or 
we are not permitted for.
    The second scope of 402(k) that we are looking to get 
improvements on is language in the permits themselves that is 
ambiguous and invites litigation. There are boilerplate 
languages added to certain permits that say dischargers shall 
not ``cause or contribute to the violation of water quality 
standards.'' I have been in this business for over a quarter 
century. I have no idea what that means.
    I need to have limits that I can hit with constituents that 
I can hit and not language that invites litigation and, again, 
transfers money from my ratepayers into lawyers' pockets. And I 
am a former practicing lawyer, so, I will say that I think 
there are plenty of opportunities for attorneys to make money 
elsewhere.
    Finally, I think we would like to just note that the 
objectives of the Clean Water Act would be better served if 
water quality standards are done in a more transparent way. We 
would ask that EPA undergo notice and comment rulemaking when 
developing standards and provide for limited judicial review. 
That allows communities to reflect and participate in the 
process and talk about what meaningful standards will be, 
especially since the burden of cost falls on those communities 
to take care of that.
    So, I think these three potential improvements would help 
with regulatory certainty and, again, putting the money where 
it needs to go in the Clean Water Act towards clean water 
projects.
    Thank you for your time.
    [Mr. Conway's prepared statement follows:]

                                 
  Prepared Statement of Mickey Conway, Chief Executive Officer, Metro 
Water Recovery, Denver, Colorado, on behalf of the National Association 
                        of Clean Water Agencies
    Good morning and thank you Chairmen Graves and Rouzer, Ranking 
Members Larsen and Napolitano, and all members of the Subcommittee for 
the invitation to testify before you today on behalf of the National 
Association of Clean Water Agencies, or NACWA, on the need for critical 
reforms as we look to the next fifty years of the Clean Water Act.
    My name is Mickey Conway, and I am the Chief Executive Officer of 
Metro Water Recovery. Metro is the largest resource recovery and clean 
water provider in the Rocky Mountain West, serving more than 2.2 
million people throughout the Denver-Metro region. We work with 61 
local governments, including cities, counties, and water and sanitation 
districts across our 805-square mile service area to provide clean 
water services, generate renewable energy, and promote sustainable 
agriculture.
    I also serve on NACWA's Board of Directors and NACWA's Executive 
Committee, and I am honored to be here today to represent NACWA and its 
over 350 public clean water utility members that, like Metro, are 
anchor institutions protecting public health and the environment in the 
communities they serve nationwide.
    Clean water utilities today face an unprecedented number of 
challenges. Replacing aging infrastructure, increasing system 
resiliency in the face of climate change, addressing emerging 
contaminants including per- and polyfluoroalkyl substances, or PFAS, 
developing and maintaining a strong workforce, and protecting against 
increasing threats to cyber-security are just a few of the critical 
issues utilities must manage every day.
    And while tackling these challenges is of vital importance to the 
long-term health and vitality of the communities we serve, it is every 
bit as pressing that we do so in a way that keeps rates affordable for 
everyone. NACWA members are stewards not only of the environment, but 
also of public funds; we must plan for the future while not 
overburdening our ratepayers today, particularly those in small, rural, 
and disadvantaged communities.
    It is for these reasons that I am testifying before the Committee 
this morning. There are three key Clean Water Act reforms in particular 
I will discuss that could help alleviate some of the burdens utilities 
face by providing the regulatory certainty necessary for long-term 
strategic planning while also stemming the unnecessary flow of 
increasingly scarce public dollars to costly and unwarranted 
litigation.
    Public clean water agencies are proud of the water quality 
advancements they have made in the first 50 years of the Clean Water 
Act's implementation. If adopted, these reforms would give utilities 
the ability to do even more by helping to ensure that, over the next 50 
years, the Clean Water Act continues to protect those we are tasked to 
protect--our local community residents.
    Metro--like all NACWA members--operates pursuant to Clean Water Act 
National Pollutant Discharge Elimination System, or NPDES, permits. 
These permits outline the requirements the discharges from our 
facilities must meet to ensure the protection of water quality. They 
are not only a critical tool in protecting the environment, but they 
allow utilities to plan and make the infrastructure investments 
necessary to meet the permit terms and, thereby, provide the greatest 
benefit to local communities.
    Due to the volume of wastewater and stormwater public clean water 
agencies manage and treat, infrastructure improvements needed to meet 
increasingly stringent Clean Water Act requirements often entail long-
term financial and technical planning, as well as large-scale--and 
frequently disruptive--construction projects. It is therefore critical 
that requirements in utility NPDES permits be developed transparently, 
that a utility's Clean Water Act obligations be clearly outlined in 
those permits, and that a utility be able to rely on those permits for 
the entire length of their term. I guarantee you that any public 
servant in front of the Committee would say the same thing--you better 
have a solid plan in place before you start digging up city streets.
    Clean Water Act Section 402(k)--the NPDES ``permit shield'' 
provision--provides key protections to clean water utilities in this 
regard. Under that provision, Congress deemed compliance with an NPDES 
permit to be compliance with the Clean Water Act itself.
    Pursuant to EPA's longstanding ``permit shield'' policy 
interpreting Section 402(k), if a permittee provides all the 
information it is supposed to during the permit application process, it 
is the NPDES permit writer's job to include all the limits necessary to 
meet the requirements of the Clean Water Act in the permit. If a permit 
holder complies with those limits, all of the pollutants discharged 
from the facility that were within the reasonable contemplation of the 
permit writer--regardless of whether or not they are expressly 
identified or limited in the permit--are considered lawfully permitted 
discharges for purposes of Clean Water Act compliance.
    Importantly, before an NPDES permit is finalized, EPA can object to 
it if it does not include any necessary limits. Likewise, environmental 
organizations and citizens can bring lawsuits against permits they do 
not think are stringent enough within a specified statutory timeframe. 
But once a permit is ``final,'' under the Section 402(k) ``permit 
shield,'' a permit holder can rely on it as the touchstone for Clean 
Water Act compliance during its term.
    The U.S. Supreme Court has held that the purpose of the ``permit 
shield'' is to ``insulate permit holders from changes in various 
regulations during the period of a permit and to relieve permit holders 
of having to litigate the question of whether their permits are 
sufficiently strict. In short, Section 402(k) serves the purpose of 
giving permits finality.''
    But this finality, which is especially important in the context of 
restoring and maintaining the nation's critical wastewater and 
stormwater infrastructure, is being threatened in two fundamental ways.
    Firstly, outside parties are increasingly challenging the scope of 
the ``permit shield'' as applied to pollutants not expressly listed in 
an NPDES permit. This is particularly problematic in the context of 
emerging contaminants that EPA has not yet developed permitting 
requirements for, such as PFAS. Codification of EPA's ``permit shield'' 
policy would help protect communities across the country from being 
forced to spend precious public dollars defending against such 
lawsuits, distracting the utility from meeting the requirements already 
contained in the permit as well as from finding solutions to actually 
begin the process to address, in this example, PFAS contamination. It 
is important to underscore that utility leaders and workers are public 
servants and dedicated environmental stewards, and they need certainty 
to ensure these goals can be met.
    By way of example, one public utility in Georgia is being sued for 
allegedly ``unlawfully discharging'' PFAS it passively receives from 
upstream carpet manufacturing processes because its NPDES permit does 
not include PFAS limits and its treatment facility was (unsurprisingly) 
not designed to remove these indestructible manmade chemicals.
    Clean water utilities have already begun to work with EPA and state 
partners to develop the requirements and treatment processes necessary 
to protect our nation's waterbodies from PFAS pollution. The notion 
that, in the meantime, thousands of utilities all over the country 
could be held to be categorically out of compliance with the Clean 
Water Act because such requirements and treatment processes do not yet 
exist and have therefore not been written into NPDES permits is 
unacceptable.
    EPA and state regulators must be permitted to address PFAS through 
the Clean Water Act's well-established, science-based effluent 
limitations development processes. And utilities, in turn, must not be 
faced with the imposition of ad hoc, activist-driven permitting 
requirements through litigation.
    The second threat to the scope of Section 402(k) is related to the 
first. A growing number of suits are being brought over the boilerplate 
language often included in NPDES permits stating that discharges shall 
not ``cause or contribute to the violation of water quality 
standards.'' A statutory requirement that permit writers use only clear 
permitting terms, not vague and unclear boilerplate language that 
invites uncertainty and litigation, could save communities across the 
country from being placed in untenable positions.
    As I mentioned earlier, under EPA's own regulations and guidance, 
it is a permit writer's job to include all necessary limits in a permit 
to ensure that authorized discharges are protective of water quality 
standards. But both outside parties and EPA itself are increasingly 
trying to enforce this boilerplate language well into a permit's term 
as if it were a separate, all-encompassing ``effluent limitation.''
    This position eviscerates the ``permit finality'' the Supreme Court 
has held an NPDES permit is supposed to provide, as it effectively 
allows permit writers to establish post-hoc requirements they failed to 
include when they issued the permit at any time under the guise of 
``enforcing'' this generic fiat. It likewise provides outside parties 
with an avenue to second-guess permitting decisions and read new limits 
into a permit well after the statutory timeframe provided for permit 
objections.
    The U.S. Supreme Court has stated that due process demands that 
``regulated parties should know what is required of them.'' Public 
clean water agencies are regulated parties that have and continue to 
spend billions of dollars to maintain and upgrade our nation's critical 
wastewater and stormwater infrastructure. It is especially important 
for these utilities to have clear Clean Water Act requirements that 
they can strategically plan to meet in the manner that best protects 
the health and environment of the communities they operate in. The City 
of San Francisco--a NACWA member--is in fact currently engaged in 
litigation aimed at forcing EPA to remove this boilerplate language 
from one of its NPDES permits considering the unacceptable amounts of 
risk and uncertainty it poses. Congress can provide such relief to 
utilities nationwide through these reforms, and I strongly encourage it 
to do so.
    And finally, even if NPDES permits clearly identify a permittee's 
obligations and provide permit holders with sufficient regulatory 
certainty, the objectives of the Clean Water Act will not be met if the 
water quality standards upon which the limits in those permits are 
based were not developed in a transparent, science-based process.
    Requiring EPA to undergo notice and comment rulemaking when 
developing recommended water quality criteria and subjecting the final 
criteria to a limited judicial review process under Clean Water Act 
Section 509(b) would help ensure that the onus placed on public 
agencies are necessary and do not unduly burden communities while 
providing little corresponding environmental benefit.
    EPA develops recommended water quality criteria which states must 
consider adopting under Clean Water Act Section 304(a). While states 
can adopt different criteria if approved by EPA most states simply do 
not have the resources to do so. The criteria developed by EPA under 
Section 304(a) are therefore typically adopted into state water quality 
standards and translated into all NPDES permits through enforceable 
permit limits.
    While it is true that EPA typically takes comment on its proposed 
criteria and subjects them to limited review from its Science Advisory 
Board, because the Agency takes the position that the criteria are just 
``guidance,'' it does not fully follow the regulatory requirements of 
the Administrative Procedure Act or the Office of Management and 
Budget, including those related to fully considering and responding to 
public comments. Nor can impacted parties legally challenge any final 
criteria, as EPA does not treat the criteria as ``final agency 
action,'' even though, for the majority of NPDES permit holders 
nationwide, they will ultimately dictate permitting obligations.
    As utilities face complex and costly infrastructure challenges over 
the next 50 years, it is critical that the limits imposed in NPDES 
permits be based on the best available science and a complete record, 
not political whim or expedience. The reforms under consideration could 
help ensure this happens.
    This concludes my testimony. Thank you for giving me the 
opportunity to speak here today. NACWA appreciates the ongoing 
engagement by the Committee with the public clean water sector on these 
critical issues, and I would be happy to answer any questions the 
Committee may have.

    Mr. Rouzer. I thank the gentleman.
    Mr. Farris, you have 5 minutes.

    TESTIMONY OF BRANDON FARRIS, VICE PRESIDENT, ENERGY AND 
    RESOURCES POLICY, NATIONAL ASSOCIATION OF MANUFACTURERS

    Mr. Farris. Good morning. Good morning, Chairman Rouzer, 
Ranking Member Napolitano, members of the committee. Thank you 
for the chance to speak with you on behalf of the 13 million 
men and women who make things in America to convey the urgency 
of permitting reform.
    Streamlining and modernizing our Nation's permitting laws 
and procedures will help us advance many of our Nation's shared 
priorities, improving the quality of life for all communities, 
modernizing our infrastructure, achieving energy security, 
ramping up critical mineral protection, enhancing manufacturing 
competitiveness, and creating manufacturing jobs in the U.S. 
These are goals that all Americans can support.
    At a time of economic uncertainty, when every investment in 
a new powerplant, a new road, a new manufacturing facility 
makes us more globally competitive, why should we settle for a 
permitting process that can take 10 or 15 years to approve 
essential projects?
    One of manufacturers' biggest concerns is that the 
permitting process often drags far longer than necessary. For 
example, here is something we have heard from one of our 
manufacturers of critical raw materials for semiconductors, 
clean hydrogen, and lithium-ion batteries. In many cases, these 
products cannot be made without their chemicals, but because of 
the regulatory uncertainty in obtaining a Clean Water Act 
section 402 permit in a timely manner, that company recently 
announced that they are going to build a facility in the EU 
that manufactures material necessary to produce clean hydrogen.
    A White House CEQ report also found that environmental 
impact statements mandated under NEPA take, on average, 4\1/2\ 
years. That means more time is spent projecting potential 
environmental impacts than it takes to actually construct and 
operate a hydrogen power generation facility.
    The impact of leaving our existing permitting processes 
untouched is clear. The U.S. will fall behind international 
competitors that are taking every step possible to incentivize 
manufacturing development. Quality of life, environmental 
progress, and economic competitiveness in the U.S. will suffer 
as a result.
    Permitting reform can be achieved without compromising our 
Nation's or our industry's high standards for environmental 
protection and sustainability. It is possible to preserve and 
uphold these standards with fewer delays and fewer needless 
lawsuits.
    So, as detailed in my written testimony, manufacturers have 
a few priorities. First, we want to see consolidated processes 
with enforceable deadlines for the siting of new energy 
projects, including hydrogen, natural gas, nuclear, and other 
emerging technologies and their infrastructure.
    Second, we want to see faster approvals for transportation 
infrastructure projects on which we all rely. For instance, it 
takes around 7 years to build a new road from our employees' 
house to their facility. That is delaying investment. You don't 
build new facilities if you don't have roads to be able to 
access them.
    Third, we want to see a commitment to developing our 
resources to strengthen our supply chains for critical minerals 
that DoD calls vital to our national defense.
    Fourth, we believe that EPA and the other agencies should 
refrain from issuing new and shifting regulations before 
current standards are implemented.
    Finally, Congress should ensure the administration follows 
congressional intent on recent and future statutory 
streamlining efforts, such as the One Federal Decision.
    All of this should be done in a technology-neutral way. Let 
consumers, end users, and market conditions determine what 
works best. And when there must be judicial review, it should 
be meaningful and timely. Manufacturers believe in protecting 
our communities--we live there--our neighbors and our 
environment.
    Permitting reform will help us achieve more: more 
manufacturing, more domestic energy production, more inputs and 
raw materials, and, most importantly, more jobs. And our 
country and the world will be better off if we and our allies 
do not depend on authoritarian rivals for energy and other 
natural resources.
    The manufacturing industry will continue doing what it 
always does: innovating, creating jobs, and improving the 
quality of life for everyone. But we can do so much more with a 
permitting system fit for the 21st century.
    Thank you.
    [Mr. Farris' prepared statement follows:]

                                 
   Prepared Statement of Brandon Farris, Vice President, Energy and 
        Resources Policy, National Association of Manufacturers
    Good morning, Chairman Rouzer, Ranking Member Napolitano and 
distinguished members of the committee. Thank you for the opportunity 
to appear before you and for holding this important hearing today on 
how permitting reform can build a stronger economy.
                            A. Introduction
    My name is Brandon Farris. I come from a manufacturing family. My 
grandparents worked their entire careers at the GE communications 
products department in Lynchburg, Virginia. In Lynchburg, GE made two-
way FM radio and car-telephone systems for vehicles, portable two-way 
radios, industrial paging systems, and data transmission systems. My 
father worked in a printing press. Lynchburg is a manufacturing town, 
and I have seen firsthand, through my own experience, how manufacturing 
raises the quality of life for families and communities. Today, I serve 
as the vice president of energy and resources policy at the National 
Association of Manufacturers. The NAM is the largest manufacturing 
association in the United States, representing small and large 
manufacturers in every industrial sector. At the NAM, we advocate 
policies that grow manufacturing in the United States and improve the 
lives of everyone, including the families of the 13 million men and 
women who make things in America.
    For our industry to continue growing our economy, creating jobs and 
developing the best products in the world, the United States must 
update its permitting laws and procedures. Permitting delays and 
associated costs are making it much harder for manufacturers to compete 
and win in the global economy. Although these problems have persisted 
for decades, the pandemic and recent supply chain disruptions have 
exacerbated the situation and made it more apparent. Bipartisan 
cooperation has led to major policy achievements in recent years, 
notably with the CHIPS and Science Act, which provides important 
incentives to spur domestic manufacturing of vital inputs used 
industrywide, particularly semiconductors. The Infrastructure 
Investment and Jobs Act represented a historic commitment to 
revitalizing our country's crumbling infrastructure, modernizing it to 
improve the quality of life for all Americans and to further bolster 
our global competitiveness. Permitting reform should go hand-in-hand 
with these achievements, as it will help us more efficiently realize 
the promise of our national investments in domestic manufacturing and 
infrastructure.
    The NAM supports this committee's work to modernize outdated and 
inefficient permitting processes. The manufacturing industry accounts 
for approximately 11% of our national gross domestic product, and it 
can grow even more if this red tape no longer stands in the way.
    I would like to point out several areas where the current 
permitting processes are most disruptive--and how reform in these areas 
will bolster manufacturing in the U.S.
                     Transportation Infrastructure
    Transportation infrastructure of all kinds is essential to 
manufacturers in the U.S. Obtaining permit approvals for these projects 
often takes years, and that timeline can be magnified if the review 
process is not streamlined, as is often the case. Many companies are 
unable to proceed with new domestic manufacturing projects because the 
permitting process has tied them up and slowed the project to a crawl.
    I would like to share some examples. Our members have reported that 
National Historic Preservation Act Section 106 consultation processes 
have taken five years each for separate key rail infrastructure 
projects. One electric heavy-duty truck manufacturer reported that some 
customers have refused deliveries of battery-electric trucks due to the 
uncertainty surrounding the necessary utility infrastructure upgrades 
to power the chargers. And the Federal Highway Administration averages 
more than seven years and four months to get approvals for a road that 
connects manufacturing facilities with their customers or employees 
with their workplaces.
    It is clear how these permitting delays are standing in the way of 
our industry's ability to create jobs, grow and make more products in 
the U.S.--as well as in the way of other national priorities. The 
Department of Energy's draft National Transmission Needs Study, 
released Feb. 24, points out that the national electric transmission 
system would need to grow 57% by 2035 to meet the infrastructure needed 
to reach the administration's clean energy goals as it relates to the 
growing
light-, medium- and heavy-duty vehicle industries.\1\ Removing 
inefficiencies and streamlining permitting for charging infrastructure 
projects is a high priority for manufacturers, especially those facing 
state medium-and-heavy-duty zero-emission-vehicle sales mandates like 
those in California, Washington and Massachusetts. And the passage of 
the bipartisan IIJA in 2021, which the NAM strongly supported, could 
revitalize our nationwide infrastructure systems, with upgrades, 
updates and new projects--if we clear permitting backlogs and ease 
processing timelines.
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    \1\ https://www.energy.gov/gdo/national-transmission-needs-study
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            Energy Infrastructure and Environmental Reviews
    Permitting challenges are also slowing the development of many 
energy projects, including renewables. Manufacturers depend on access 
to reliable and affordable energy to expand, which is why we support 
reforms that would foster transparent, streamlined and timely federal 
regulatory processes for the siting, permitting and licensing of energy 
delivery infrastructure of all types. As NAM President and CEO Jay 
Timmons recently said in testimony before the Senate Committee on 
Environment and Public Works, manufacturers do not believe that 
expanded domestic energy production, strong environmental protections 
and a thriving economy are mutually exclusive goals. Permitting reform 
can help achieve these goals in tandem.
    For example, the siting of and infrastructure for zero-emissions 
sources such as hydrogen power generation and transportation and for 
advanced, small modular and micro-nuclear reactors have progressed far 
too slowly. The Inflation Reduction Act included nearly $400 billion 
for clean energy priorities, which might take years to be spent under 
our current permitting system. And the White House Council on 
Environmental Quality recently issued a report stating that, on 
average, environmental impact statements, which are mandated under the 
National Environmental Policy Act of 1969 to outline the potential 
impact of a proposed project on its surrounding environment, now take 
on average four and a half years.\2\ More time is spent studying 
potential environmental impacts than it takes to construct and operate 
a clean hydrogen power generation facility. The Congressional Research 
Service also states that NEPA is the most frequently litigated federal 
environmental statute.\3\ Furthermore, a 2014 Government Accountability 
Office study on NEPA analysis found that ``little information exists on 
the costs and benefits of completing NEPA analyses'' and that 
``agencies do not routinely track the costs of completing NEPA 
analyses.'' \4\ NEPA can clearly be amended to reduce the time its 
processes take and the associated compliance costs, with no real impact 
on its environmental protections.
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    \2\ https://ceq.doe.gov/docs/nepa-practice/
CEQ_EIS_Timeline_Report_2020-6-12.pdf
    \3\ https://crsreports.congress.gov/product/pdf/IF/IF11932
    \4\ https://www.gao.gov/assets/gao-14-369.pdf
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    We have a member that makes critical raw materials for 
semiconductors, clean hydrogen and lithium-ion batteries. In many 
cases, these products cannot be made without their chemicals, but 
because of the regulatory uncertainty in obtaining a National Pollutant 
Discharge Elimination System permit in a timely manner, that member 
recently announced that they will build a facility in the EU that 
manufactures materials necessary to produce clean hydrogen.
    Another NAM member reported that they needed to obtain a 
construction permit, but before the permit could be granted, the 
company needed survey permission to review the landscape and natural 
resources in the area. It took more than six months to simply obtain 
permission to conduct the survey. The delay in obtaining survey 
permission cascaded into a more than 12-month delay in the permitting 
process itself. It is important to note that this was listed as a 
``priority project'' in the ``FAST-41'' Federal Infrastructure 
Dashboard, which is supposed to increase permitting efficiency.
    But delays in starting projects are not just caused by NEPA or the 
Clean Water Act. One NAM member company reported lengthy delays of up 
to an entire year for the issuance of permits by the U.S. Army Corps of 
Engineers due to the failure of the U.S. Fish and Wildlife Service to 
complete the informal consultation required for confirming no adverse 
project impacts under the Endangered Species Act. For an entire year, 
potential workers sat on the sidelines and a community lost out on 
economic opportunity waiting on informal paperwork that should not have 
taken longer than 90 days to complete.
    Staffing shortages at agencies are also becoming a significant 
obstacle in the permitting process. In one case, a member company 
reported that a permit renewal was delayed by more than six months 
simply due to lack of staff. Another member reported that a Section 7 
Endangered Species Act consultation was stalled for more than two years 
as the National Marine Fisheries Service waited on a biologist to be 
assigned to the project. Individually, each regulation is restrictive 
enough, but when added together, they place a significant economic and 
operational impact on manufacturers.
                          Resource Development
    Our industry depends on access to our nation's plentiful natural 
resources, and we believe that all processes involving them should be 
done in an environmentally sound and responsible manner. However, some 
restrictions on the development of these resources are hindering our 
ability to strengthen domestic supply chains and making our industry 
more reliant on raw material imports. The inconsistent administration 
of critical mineral policies, for example, has limited our ability to 
use a wide range of resources that exist on and beneath federal lands--
resources that are critical to producing everything from cars to 
medical devices.
    Various permitting agencies are required to weigh in on every 
mining project in the U.S. For example, mining operations in the U.S. 
typically require two Clean Water Act permits.\5\ Section 404 requires 
mining operators to work with the Army Corps of Engineers to ensure 
that the discharge of material is done in an environmentally sound way 
that does not disrupt navigation to waters of the United States. 
Section 402 permits authorized discharges from discrete conveyances--
called point sources into waters subject to federal jurisdiction. These 
permits are just part of the mosaic of reviews that contribute to 
delays in mining projects across the U.S. The National Mining 
Association reports that Australia and Canada, two countries with 
environmental protections that are arguably equivalent to or even more 
stringent than those in the U.S., have mine permitting processes that 
last two to three years on average, whereas in the U.S. the permitting 
process averages seven to 10 years.\6\ Modernizing and streamlining 
resource permitting and leasing policies will help stabilize 
manufacturing supply chains, control costs for consumers, reduce our 
reliance on foreign countries and create jobs in the U.S.
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    \5\ https://nma.org/category/water/
    \6\ https://nma.org/wp-content/uploads/2016/09/Fact-Sheet-
Permitting-Delays-1.pdf
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    Leaders in both parties have demonstrated a shared commitment to 
increasing semiconductor production in the United States so that our 
manufacturers--virtually all of which rely on chips for their products 
or processes--have strong, domestic supply chains for these critical 
inputs. With 88% of chips produced outside of the U.S.\7\ right now, 
this is a crucial goal for not only our economic security but also our 
national security. Yet, the raw materials for those chips, such as 
lithium and cobalt, are still mined largely outside of the U.S. as 
well.\8\ Our nation has reserves of both lithium and cobalt.\9\ To 
access them, though, as Congress clearly envisions we will, also 
requires congressional action to speed up permissions for developing 
those resources in a responsible way.
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    \7\ www.semiconductors.org/wp-content/uploads/2021/09/2021-SIA-
State-of-the-Industry-Report.pdf
    \8\ https://www.gao.gov/products/gao-22-104824#summary_recommend
    \9\ https://pubs.er.usgs.gov/publication/pp1802
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                      New Environmental Standards
    Manufacturing in the U.S. is cleaner than our global 
competitors,\10\ owing largely to manufacturers' commitment to 
modernizing and improving processes constantly, so as to leave the 
planet better than we found it. Our industry also carefully upholds 
federal standards for environmental protection. Unfortunately, when 
federal agencies continually revise standards before current standards 
are met and before states have implemented prior mandates, those 
revised standards create unpredictability. As a result, the U.S. has 
ceded new projects and facilities to other countries.
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    \10\ https://documents.nam.org/COMM/
NAM_Air_Quality_Standards_Analysis_Web_
Version.pdf
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    The Environmental Protection Agency is taking an aggressive 
approach toward tightening regulations in several environmental 
statutes. Unfortunately, these proposed regulatory changes are not 
based on the best available science, often setting standards at or 
below limits of detection, making compliance technically infeasible. 
One such regulation is the EPA's proposed air quality regulations for 
particulate matter (PM2.5). The regulation as proposed would mean that 
nearly 40% of the U.S. population lives in an area that is out of 
``attainment,'' which would make it extraordinarily difficult to create 
manufacturing jobs, protect existing manufacturing jobs and could 
prevent much needed infrastructure improvements in these areas. For 
instance, one manufacturer that is already in a current nonattainment 
area was forced to choose between spending $400 million more to meet 
stringent emissions standards in a locality not in attainment or move 
their facility entirely. The company chose to move, and that added $100 
million to the project and caused a six-month delay. These are the 
kinds of costs and decisions that we would witness on a much greater 
scale if the new rule goes into effect.
    Overly burdensome, shifting regulatory policies inherently affect 
permitting, licensing and siting applications because they move the 
goalposts of compliance with federal regulations. If instead we make 
the process more predictable and consolidate the many complex layers of 
review, the U.S. can continue to build on its strong record of 
environmental stewardship by boosting domestic manufacturing, which is 
environmentally cleaner than our international competitors.
                          Congressional Intent
    The success of any legislative permitting reforms depends on proper 
implementation. Ensuring the administration follows congressional 
intent on recent and future statutory streamlining efforts such as One 
Federal Decision is key. Establishing strict permit review timelines 
and eliminating duplicative efforts across various federal agencies 
help in reducing unnecessary delays. Moreover, key permitting 
authorities are rife with ambiguity and inconsistent terminology and 
warrant congressional intervention.

                                 * * *

    Permitting affects every aspect of our lives--from our economic 
security to our national security. If we fail to modernize existing 
processes, the U.S. is at risk of falling behind international 
competitors that are taking every possible step to incentivize 
manufacturing development. For instance, the EU released a new plan 
known as the Net-Zero Industry Act, which looks to regain manufacturing 
from lower-cost manufacturing centers in Asia and elsewhere. If the 
United States does not act quickly, we could lose much needed 
manufacturing investment to the EU and elsewhere in the world. On the 
other hand, if we seize this opportunity to lead, there is no limit to 
what manufacturers in the United States can accomplish--for the good of 
our people and the good of the world.
    As the NAM has emphasized consistently, permitting reform is not 
about cutting corners. It is about keeping up with the world around us. 
It is about ensuring that this country--a democracy rooted in free 
enterprise--is not outpaced or outflanked or overtaken by nations that 
do not share our values, that do not respect the environment or that do 
not recognize the dignity of human rights.
    Thank you for inviting me to testify today. I look forward to 
continued engagement with members of this committee.

    Mr. Rouzer. I thank the gentleman for his testimony, as 
well as all the other witnesses.
    So, we will now turn to questions from Members. I recognize 
myself for 5 minutes for questions.
    I had the opportunity--I took the opportunity, I might say, 
to read every word of each of the testimonies provided by our 
panelists here today.
    Mr. Farris, I was particularly struck by one of the final 
paragraphs of your written testimony, and I want to highlight 
this. It says: ``[P]ermitting reform is not about cutting 
corners. It is about keeping up with the world around us. It is 
about ensuring that this country--a democracy rooted in free 
enterprise--is not outpaced or outflanked or overtaken by 
nations that do not share our values, that do not respect the 
environment or that do not recognize the dignity of human 
rights.''
    A little further above there, you say: ``If the United 
States does not act quickly, we could lose much needed 
manufacturing investment to the EU and elsewhere in the 
world.''
    Can you expound on that a little bit? What do we need in 
this country? Certainty? What are other attributes of a 
permitting system that will enable us to compete worldwide?
    Mr. Farris. Thank you, Mr. Chairman. And just one example. 
So, for mining, for critical minerals, for semiconductors, for 
electric vehicles, for what our Defense Department calls vital 
and critical to our national defense.
    In the U.S., a mine takes 7 to 10 years, on average, to 
permit. When you look at Australia, when you look at Canada, 
who has very similar permitting systems to us, very similar 
environmental protections, permits there take 2 to 3 years. 
There is certainty, and they move efficiently.
    There is no direct number to years that it takes to permit 
a mine, but we know we need to do it faster and we need to get 
these products working to be able to increase our jobs and 
increase our security.
    Mr. Rouzer. Dr. Travnicek, I was intrigued with your 
thoughts that you conveyed with your testimony. Can you talk a 
little more about the Nationwide Permit 12?
    You say: ``[O]ne solution to ease overly stringent federal 
permitting requirements would be to adopt state-specific 
regional conditions for the Corps' Nationwide Permit 12, which 
applies to oil and gas pipelines, and Nationwide Permit 58, 
which applies to any linear utility line.''
    Can you expound on that a little more?
    Ms. Travnicek. Yes. Thank you, Mr. Chairman. Thank you for 
the question.
    Yes. In regards to looking at those nationwide permits and 
how they could be utilized, that is where we have had our 
agencies working with the Corps, trying to discuss what it 
would look like from a State-specific regional condition, 
knowing that there are those different regional conditions 
across the country and how can we continue to utilize those 
nationwide permits but knowing that, for instance, in North 
Dakota, we have got that unique wetland, hydrological areas out 
there, and we are the best known with our expertise that we 
have at the State on what those impacts could be, and also how 
we are identifying what they are.
    So, by having those types of tools in place, that will help 
us continue to streamline our efficiencies associated with 
building the infrastructure projects.
    Mr. Rouzer. Yes. I know in North Dakota, the weather can be 
a little challenging from season to season, particularly the 
winter season.
    You mentioned that ``[s]ection 404 permitting delays are 
especially harmful in North Dakota, due to our short 
construction season.''
    Can you talk about that cumulative effect a little bit?
    Ms. Travnicek. Yes. Thank you, Mr. Chairman. Yes, in North 
Dakota, right now would be our time to be starting to get out 
in the field, but usually that can wrap up anywhere in that 
October timeframe as well. So, if we are delayed by any sort of 
decisions related to permits, we could lose a construction 
season or two immediately, which, of course, leads to increases 
in costs and uncertainties of when we can complete those 
projects.
    So, making sure, in regards to some of the discussion 
already on timeliness of getting those permits, that is what we 
would be looking for. And right now, there are uncertainties 
with that.
    Mr. Rouzer. Thank you much.
    Mr. Conway, obviously, there are a lot of folks back home 
in my district that are concerned about rate increases. We are 
dealing with PFAS. New technology has been implemented there: A 
carbon filtration system at Cape Fear Public Utility Authority; 
I believe at CalStar Utilities, $60 million.
    You have major upgrades that need to be made at wastewater 
treatment facilities all around the country. These structures/
facilities weren't designed to last 50-, 100-plus years, and it 
seems like everything is coming due all across the board.
    Can you talk about the delicate balance of how do you 
protect ratepayers, how do you deal with the rules and 
regulations, and what we can do to streamline this so that we 
are protecting water quality in every way, but also allowing 
for a good playing field for you all to operate?
    And I only have about 10 seconds, so, if you can keep it 
brief. Sorry.
    Mr. Conway. We have invested billions over the years. We 
intend to invest billions into the future. The key is to invest 
it in the right place and make sure the money is going to 
actual water quality improvement and protecting our 
communities. And really, regulatory certainty is a key to that.
    Mr. Rouzer. I thank the gentleman. I thank the panel for 
entertaining my questions.
    I now turn to Mr. Larsen.
    Mr. Larsen of Washington. I am prepared with questions. I 
just didn't expect to cut in line in front of my colleague.
    Mr. Rouzer. Well, I respect the ranking member of the full 
committee.
    Mr. Larsen of Washington. OK. Thank you. I hope to continue 
to earn that respect. Thank you, Mr. Chair.
    So, I want to start with a question for Secretary McIlwain. 
Can you discuss some of the positive impacts of the Clean Water 
State Revolving Fund that Maryland will be able to take 
advantage of over the next 5 years because we passed the 
Bipartisan Infrastructure Law?
    Ms. McIlwain. Yes. Thank you. We have been able to do a lot 
in Maryland with the funds that have been available. We have 
been able to upgrade more wastewater treatment plants. The 
funding has contributed to restoration of the Chesapeake Bay. 
We have been able to really help the disadvantaged communities 
who otherwise didn't have the funding available to help upgrade 
the water systems that are degraded.
    And so, the historic funding that has been available has 
really put us in a leading position and in a position to help 
the citizens of Maryland.
    Mr. Larsen of Washington. In some of those disadvantaged 
communities or underserved communities, how would you 
characterize the infrastructure compared to, say, a more 
developed area in your State or maybe a higher economic----
    Ms. McIlwain [interrupting]. They just don't have the 
funding to upgrade as quickly as other counties and States and 
local governments who have more funding. It is all about the 
amount of taxes that you are collecting and rates that you are 
charging.
    When you are in a disadvantaged community, you can't charge 
a lot in those communities. And so, they are behind. They don't 
have the infrastructure nor the funding.
    Mr. Larsen of Washington. So, looking at that from an 
opposite way, the debt limit plan that this House voted on, it 
would have resulted in a 23-percent across-the-board cut to 
discretionary spending, including clean water investment.
    What would that mean for a State like Maryland?
    Ms. McIlwain. It would mean--it would put us back. And it 
would mean all the funding that we have been able to, again, 
give to those communities, we wouldn't be able to do that at 
the rate in which we have been.
    There are a lot of investments that we have made that we 
have been able to forgive those loans as well because of the 
Bipartisan Infrastructure Law. We wouldn't be able to forgive 
those loans. And, again, so, the economics in those 
communities--we wouldn't be able to help as much as we have 
been.
    Restoring the Chesapeake Bay, all the funding that we have 
put toward the Chesapeake Bay as well, that impacts 
disadvantaged communities as well.
    Mr. Larsen of Washington. Now, I recognize nothing is 
perfect and that there is a friendly competition about which 
State has the greatest estuary in America: Washington State and 
the Puget Sound or Chesapeake Bay in Maryland. I understand 
that. And maybe California. You are taking my time, John [to 
Mr. Garamendi]. Maybe California.
    That said, what work is yet to be done? And could you 
include in your answer some of these issues on permitting 
reform? What work can be done on restoration of clean water, 
and what work can be done on permitting reform?
    Ms. McIlwain. So, we have to meet our total maximum daily 
load goals by 2025 for the Chesapeake Bay. And so, we work with 
a lot of local governments, committees, the Chesapeake Bay 
Foundation, the Chesapeake Bay Program. We work together to 
find ways to continue to improve the Chesapeake Bay.
    If we are not able to continue to fund those programs as 
well as--again, we are using money to upgrade the wastewater 
treatment plants, all that is pollution getting into the bay. 
So, just going backwards. Everything that we are doing is 
trying to move us forward, and we can't afford to have any 
delays in funding and contribution to eliminating pollution.
    Mr. Larsen of Washington. Have you looked at permitting 
reform in your State, or do you have some thoughts about what 
Congress has looked at?
    Ms. McIlwain. In terms of permitting reform, in terms of 
our State, I know from my agency, we are looking at making sure 
that we are reforming permits.
    It is in a Federal-wide initiative, though. We realize that 
with the bipartisan--``we'' meaning the Federal Government, 
too. We realize that with the bipartisan infrastructure loan 
money, the funding, it is a lot. And you can't have projects, 
they are not going to get done if the permits aren't 
accelerated and the unnecessary steps are taken out.
    I have been a part of those efforts on a Federal level for 
years. And I am bringing that same expertise to Maryland so 
that we can try and streamline the permitting process as much 
as we can. We are working on that now.
    Mr. Larsen of Washington. That is all fair. That is great. 
Thank you very much for helping us out today. I appreciate it.
    I yield back.
    Mr. Rouzer. The gentleman yields back.
    I now recognize Mrs. Gonzalez-Colon.
    Mrs. Gonzalez-Colon. Thank you, Mr. Chairman.
    One of the biggest issues that--I want to say, first of 
all, thank you to the panel of witnesses for joining us today.
    And I think the Clean Water Act is one of the critical 
pieces of legislation over the past century. And to have a 
productive workforce and a competitive industry, we need to 
ensure that the resources they depend on are protected, but 
that doesn't mean we cannot do anything. And coming from an 
island that is undergoing a full recovery from hurricanes, I 
know how difficult it is to process the permitting between the 
Federal agencies and the local agencies, actually to get 
something done.
    So, I am glad some of the witnesses today just touched a 
little bit about those permitting processes.
    Mr. Conway, in your testimony, you bring up the Clean Water 
Act National Pollutant Discharge Elimination System, and you 
state that these protections are threatened by opponents of a 
project bringing up suits against the wastewater processors 
based on things that were not contained in the permits.
    You state, to paraphrase, that utilities must not be faced 
with the imposition of ad hoc permitting requirements through 
litigation and call attention to permits that use vague 
language.
    My question will be, do you believe that this is a strategy 
to indirectly force the States or municipalities or regulators 
to take action against third parties, that is, for example, to 
make a regulator force an industry to shut down an activity 
because otherwise the public treatment plants that cannot 
handle that discharge will be noncompliant and lose funding?
    Mr. Conway. Thank you, Congresswoman. The permit system is 
designed to provide an opportunity for all interested 
stakeholders to get involved during the permitting process, 
including those who are going to have concerns about particular 
discharges or pollutants or impacts to water quality.
    That is a very robust process that is delegated down--that 
moves down into the States. EPA has various interactions, 
depending on the delegation status of the State. But it is at 
that point where we really have the opportunity to protect our 
waters. I feel like that is the first point.
    Once the permit is set, the discharger has to meet those 
permit limits, and if it does not, it is in violation. And 
there are a number of compliance tools that both the State and 
the EPA and even nongovernmental organizations can take in a 
noncompliant situation.
    When you have a discharge that wasn't contemplated in the 
permit and, therefore, there isn't a design of the system to 
manage that, there is an opportunity to rectify that in an 
updated permit. And that process is frequently undertaken by 
EPA and/or the States, depending on the regime.
    So, we have lots of places to check in to protect our water 
bodies. The big picture that we are trying to promote here is 
that, once a permit term is set, those who have constructed, 
designed, and operated the systems really can't just turn them 
off and on to change because a new constituent is introduced.
    So, we are really trying to work on a big ship moving down 
the harbor here that cleans up as much as we possibly can with 
the certainty we have under our permits.
    Mrs. Gonzalez-Colon. You mentioned, as a critique to the 
existing system for water standards criteria, that EPA 
typically takes comments and subjects them to review. But 
because the Agency takes the position that it is just guidance 
and not rules, they do not have to follow the full procedural 
requirements for approving regulation, including periods for 
comments and responses.
    So, my question will be, I mean, are you proposing, then, 
that the law be amended to specify explicitly that EPA will 
approve a standard regulation through the normal administrative 
procedure, or do you propose that the Congress incorporate into 
the legislation specifics about what should be in those 
regulations?
    Mr. Conway. Thank you for the question, ma'am. Actually, 
the former would be preferable, to incorporate explicitly into 
the Clean Water Act an opportunity for comment and 
participation in that process.
    EPA's position has been, because it is not a formal 
rulemaking, that States can adopt these rules if they want to 
adopt them is correct. However, the States almost always do 
adopt those rules. They don't have the resources to come up 
with their own water quality research and individual 
assessments.
    So, that is what we would like to see happen. I think that 
would be great for our communities. And, frankly, for the EPA, 
it would be assistance for them to have our input into that 
process.
    Mrs. Gonzalez-Colon. Thank you. My time expired. I yield 
back.
    Mr. Rouzer. I now recognize the gentlelady and my partner 
from California, Mrs. Napolitano.
    Mrs. Napolitano. Thank you very much, Mr. Chair.
    Secretary McIlwain, last week, the Scientific and Technical 
Advisory Committee for the Chesapeake Bay Program released a 
report that stressed the need for additional measures to 
address nutrient pollution to the bay if cleanup goals are to 
be achieved. The committee report highlighted the progress made 
in reducing nutrient pollution from the wastewater treatment 
plants, even as populations in the bay watershed have 
increased. However, the report also warned that progress in 
addressing nonpoint sources of nutrient pollution has lagged 
and has been insufficient to meet the overall water quality 
goals of the bay.
    What additional steps do you recommend for addressing 
ongoing nonpoint sources of nutrient pollution to the bay?
    Ms. McIlwain. Well, first, nonpoint sources of pollution 
are the largest issue for us, for the country, because you 
can't detect them as quickly as you can the point sources.
    I think that what we need to do is prioritize the projects 
that have multiple benefits. And that includes carbon 
sequestration, ones that also have flood resiliency, as well as 
cleaner water.
    So, we need to look at those projects and try to get more 
out of the projects that we have so that we can start 
addressing the nonpoint source issues.
    Mrs. Napolitano. For those who might suggest that 
additional investments in the bay are too costly or have little 
economic benefit to Marylanders, how would you respond to 
justify the investment, to all of you?
    Ms. McIlwain. I am sorry, repeat the last piece.
    Mrs. Napolitano. How would you respond to justify the 
investment when they say that it would be too costly to do it 
for the bay?
    Ms. McIlwain. We don't have enough funding now, so, it is 
never too costly. We need more money for investment in the 
Chesapeake Bay. We need to keep moving forward. We don't have 
room to go backwards.
    The funding that we have--as I spoke about earlier, the 
funding that we were able to get from the funding has allowed 
us to upgrade the wastewater treatment plants, improve and 
restore the Chesapeake Bay, and help disadvantaged communities. 
We have more work to do, and I have that in my testimony. There 
is a lot more that we need to do and that we will do.
    Mrs. Napolitano. Can you highlight the economic benefits 
the bay has received?
    Ms. McIlwain. I am sorry?
    Mrs. Napolitano. The economic benefits the bay has 
received.
    Ms. McIlwain. The economic benefits, we have created--the 
Chesapeake Bay, just from the funding, I think it is 35,000 
jobs have been created from the funding that we have received.
    So, there are a lot of economic benefits that we are 
getting. More companies are getting more money, more loans and, 
again, more loan forgiveness. There has been a lot of economic 
benefits to the communities.
    Mrs. Napolitano. The jobs and the water quality.
    Ms. McIlwain. And the water quality has improved.
    Mrs. Napolitano. Anybody else?
    Mr. Conway. Yes, Ranking Member Napolitano, I would say 
that I don't believe that anyone thinks that clean water is too 
costly in the broad sense, but it is important to prioritize 
what we have to do, because it all can't be done at once.
    And infrastructure issues across the country, just 
literally delivering and taking clean water are key, absolutely 
key. When we start adding things--nutrients are also key. And 
almost all of our clean water treatment plants are set up to 
manage nutrients. It is a heavy lift to get them to lower and 
lower levels, but everyone is committed to that.
    Once we get to emerging contaminants like PFAS, the cost 
associated with that and the uncertainty and the technology 
right now, on top of infrastructure and nutrients, is going to 
put an incredible strain on our folks. And so, I think 
prioritizing all these things and these investments is going to 
be very important for us.
    Mrs. Napolitano. What should the role of the Federal 
Government be, or what would you expect it to be?
    Mr. Conway. I am sorry, what?
    Mrs. Napolitano. The role of the Federal Government.
    Mr. Conway. I think I would love to see the Federal 
Government set a priorities list on pollutants. I think that 
would be difficult to do, but it would be something akin to 
setting water rights issues in the Colorado River. You could 
tell us what you want us to do first. We will put every bit of 
energy we have into that.
    One of the things I would suggest is that solutions to 
clean water often implicate, for instance, air issues. You 
pollute to create clean water. You use chemicals to create 
clean water. And so, the cleaner the water gets, the dirtier 
the air gets. And so, we would like to see a prioritization 
system that helps us guide our investments.
    Mrs. Napolitano. But then the Federal Government doesn't 
know the situation in every State, so, you would have to go 
differently.
    Mr. Conway. I recognize that. That would be----
    Mrs. Napolitano [interrupting]. I yield back, Mr. Chair. 
Thank you.
    Mr. Rouzer. I thank the gentlelady.
    Next up on our side is Mr. Van Orden for 5 minutes.
    Mr. Van Orden. Thank you very much, Mr. Chairman.
    I find it fascinating that many of my colleagues wrap 
themselves in the Richard Nixon flag when it comes to the Clean 
Water Act, which I don't think they would normally do. When we 
speak about congressional intent and following congressional 
intent, I cannot think of a greater example of that other than 
a bipartisan, bicameral resolution that was passed in the House 
and the Senate that went to President Joe Biden's desk asking 
to repeal the waters of the United States rules changes that 
was vetoed by President Biden.
    So, to be clear, the intent of Congress was to not have 
these rule changes go through on the waters of the United 
States, and that was vetoed by the President of the United 
States. So, clearly, the congressional intent is not being 
followed by the executive branch, and that is a blatant 
political act, and I think it is inappropriate.
    Secretary--it is McWain?
    Ms. McIlwain. McIlwain.
    Mr. Van Orden. McIlwain. Sorry, ma'am. What percentage of 
Maryland is dedicated to agriculture?
    Ms. McIlwain. What percentage of Maryland is dedicated to 
agriculture?
    Mr. Van Orden. Land-use agriculture?
    Ms. McIlwain. It represents a large portion of Maryland. I 
don't have the exact percentage, but it is huge.
    Mr. Van Orden. OK. Dr. Travnicek, what percentage of North 
Dakota is----
    Ms. McIlwain [interrupting]. About half.
    Mr. Van Orden. About half?
    Ms. McIlwain. Yes.
    Mr. Van Orden. Dr. Travnicek, what percentage of North 
Dakota is dedicated to agriculture production?
    Ms. Travnicek. Representative, so, for North Dakota, yes, 
it is a very large percentage as well. It is our number one 
industry in the State of North Dakota.
    Mr. Van Orden. OK. And, Secretary McIlwain, what percentage 
of Maryland would be subject to no notice, no consent 
inspection by the Federal Government if the waters of the 
United States rules changes are enacted?
    Ms. McIlwain. I would say a large percentage would be 
impacted. You said by the waters of the United States, by the 
new rule, is that what you are asking me?
    Mr. Van Orden. Do you have any idea, like an actual 
percentage?
    Ms. McIlwain. I don't.
    Mr. Van Orden. OK. Dr. Travnicek, what percentage of North 
Dakota would be subject to no notice, no consent inspection by 
the Federal Government if the rules changes or the waters of 
the United States were enacted?
    Ms. Travnicek. So, Representative, as we are looking at 
those rule changes, I mean, pretty much every industry in North 
Dakota would be impacted by those changes as we are looking at 
knowing that wetlands are now included within that new rule. We 
are fortunate, right, that we have got the stay right now that 
is not impacting our State where we are at, that 2015 decision 
related to the Clean Water Act, but if that were to go away and 
if something did happen, yes. So, you have got our energy 
industry, our agriculture industry. This agency trying to get 
water to people, we would be impacted.
    Mr. Van Orden. Madam Secretary, if you were considering 
Maryland in relationship to North Dakota, would you say that 
Maryland is more heavily regulated than North Dakota?
    Ms. McIlwain. I am sorry. Can you repeat the last piece?
    Mr. Van Orden. If you were to juxtapose Maryland with the 
State of North Dakota, would you say that Maryland is more 
heavily regulated than the State of North Dakota? I know what 
Dr. Travnicek is going to say.
    Ms. McIlwain. I am not sure.
    Mr. Van Orden. Dr. Travnicek, in relationship to Maryland, 
would you say that Maryland is more heavily regulated than 
North Dakota?
    Ms. Travnicek. Representative, so, I do not know all the 
regulations that are within Maryland, but as we are looking at 
regulation in North Dakota, we always try to do the innovation 
over regulation. That is what we are always looking for. We are 
looking to try to streamline our permitting processes, making 
sure that we can get infrastructure to the different economies 
that we are striving for within the State.
    Mr. Van Orden. Thank you.
    Madam Secretary, do you think that the regulations that 
apply to the State of Maryland should apply to the State of 
North Dakota?
    Ms. McIlwain. I mean, I look at it--well, yes. Well, 
because we are trying to protect upstream States from polluting 
downstream. So----
    Mr. Van Orden [interrupting]. Madam Secretary, is North 
Dakota upstream from Maryland?
    Ms. McIlwain. Well, my point was we----
    Mr. Van Orden [interrupting]. I understand your point, 
ma'am. Here is my point. We are part of a Republic. So, Dr. 
Travnicek, when she is speaking about the regulations that 
apply to people in North Dakota, I don't think that she should 
be able to tell you what to do, and I don't think you should be 
able to tell her what to do, because you live in very unique 
States. I appreciate everything that you are saying. I 
appreciate what you are saying, but there is a very specific 
reason that our Constitution was written the way it was, and I 
do not think the Federal Government has a place in dictating 
how you should live your life, nor Dr. Travnicek's in 
relationship to the waters of the United States.
    And the answer to Wisconsin is 85 percent of the Third 
Congressional District of the State of Wisconsin would be 
subject to no notice, no consent inspection by the Federal 
Government if these rules changes took place. Thank you very 
much.
    I yield back my time that has already expired, Mr. 
Chairman.
    Mr. Rouzer. The gentleman yields.
    Mr. Garamendi.
    Mr. Garamendi. No, I am not going to do it. I am not going 
to engage in the debate about the role of the Federal 
Government versus the State governments and the like. I will 
just let that go for a few moments.
    So, we were talking about reform here of the various 
permitting processes. I actually do have a reform I would like 
to have all of you comment upon it.
    Presently, the NPDES permit is for 5 years. And so, Mr. 
Conway, your agencies and others seek a permit to discharge, 
and it is 5 years.
    About the time you get underway on the construction of 
whatever it is you want to do, it is now time for another 5-
year permit. And so, you are constantly permitting.
    The reform that we have is in H.R. 1181, which would, 
instead of a 5-year, give a 10-year permit for the discharge 
for the public agencies. We think it is a pretty good idea. We 
want to get these projects underway. If there is an upgrade 
necessary, then get about doing it without having to, once 
again within that 5-year period, start all over. So, we are 
looking at a 10-year permit.
    And, Mr. Conway, if you could comment on this. Previously, 
your organization endorsed it. It is a new Congress. We are 
going to give it another try.
    Chairman Rouzer, we would love to have your support on 
this.
    Mr. Conway.
    Mr. Conway. Thank you, Congressman. I know NACWA has been 
in support of that idea, that any increase in certainty and any 
increase in lead times to plan, execute, and operate projects 
would be, in our world, helpful. Frankly, the reality, to your 
point, is that if you are going to add, for instance, tertiary 
treatment to a large wastewater treatment plant, that is a 10-
year process in and of itself to get to those low, low, low 
limits. So, that longer lead time and run time would be very 
helpful for utilities.
    Mr. Garamendi. Thank you.
    The other witnesses, if you care to comment about this 
issue of moving from a 5-year NPDES deadline or permit to a 10-
year, please do.
    Dr. Travnicek.
    Ms. Travnicek. Representative, so, as you are looking at 
that 5-year to 10-year permit, of course, you get more of that 
certainty of being able to stay within the bounds of a longer 
one, but that would be my comment at this point.
    Mr. Garamendi. Thank you.
    Secretary McIlwain, why did you leave California to come to 
Maryland? You were doing such a good job in California, but 
here you are. So, your comments.
    Ms. McIlwain. I will just comment on that.
    Mr. Garamendi. Let that go.
    Ms. McIlwain. I came to Maryland because Maryland is home 
for me. I love California, but I had to return home and make 
sure that I am protecting the environment in Maryland.
    Mr. Garamendi. Well, carry on then. What about this 10-year 
permit versus the 5-year permit?
    Ms. McIlwain. I don't really have a comment on that. I have 
thoughts, but I'd rather keep my comments to myself.
    Mr. Garamendi. Well, I will send you all of the 
information, you can then comment in writing later on.
    Ms. McIlwain. OK.
    Mr. Garamendi. Mr. Farris.
    Mr. Farris. Congressman, one thing that manufacturers 
constantly ask for is regulatory certainty. This would give 
them certainty. Yes, sir. Absolutely.
    Mr. Garamendi. At least within the 10-year period of time--
--
    Mr. Farris [interposing]. Yes, sir.
    Mr. Garamendi [continuing]. Where the projects can actually 
get underway, the construction can begin, completed hopefully 
within that period of time. And there will be another 
opportunity, any changes that have occurred in the standards, 
the emission standards, could be dealt with subsequently.
    Mr. Rouzer, I would love to have your support on this as 
part of our reform. It would be great to include this in it. 
With that, I yield back.
    Mr. Rouzer. The gentleman yields.
    Mr. Babin.
    Dr. Babin. Thank you, Mr. Chairman. I really appreciate it. 
Thank all of you witnesses for being here as well. We 
appreciate your testimony.
    Mr. Farris, given your role with the National Association 
of Manufacturers, I would like to hear your perspective on a 
few challenges that are being faced by our manufacturers today 
in our country.
    Members of the committee have heard people from many 
different economic sectors detail their frustrations with our 
permitting processes. And from your perspective, what are the 
main challenges faced by manufacturers in the United States due 
to this permitting process?
    Mr. Farris. Thank you, Congressman. And how much time do 
you have, sir?
    Dr. Babin. I have got several more questions, so, just 
maybe hit the high points.
    Mr. Farris. I can say the biggest thing is the delays. We 
have had one member who had to delay being issued a U.S. Army 
Corps of Engineers permit merely because the U.S. Fish and 
Wildlife Service wouldn't give them informal paperwork saying 
that there is no environmental impact. So, for a year, 
potential workers sat on the sidelines, a community lost out on 
economic opportunity for informal paperwork that should have 
taken 90 days.
    Dr. Babin. Yes. Absolutely.
    Critical minerals are something more and more Americans are 
becoming aware of now that we are seeing some really new stuff 
on this. Our reliance on Chinese companies and the critical 
mineral supply chain is dangerous and potentially disastrous as 
China continues to aggressively come after the American 
economy.
    Generally speaking, how is the reliance on Chinese critical 
minerals impacting our manufacturing capabilities, and how is 
the inconsistent administration of critical mineral policies 
impacting the industry?
    Mr. Farris. Significantly. Significantly. If we learned 
anything over the past 3 years, it is about supply chain, and 
it is about manufacturing more things in America. As a country, 
we have agreed we need to manufacture semiconductors. We need 
to manufacture batteries. We cannot do those without the 
critical minerals. And as I mentioned earlier, right now in the 
U.S., it takes 7 to 10 years to get a mine permitted. In 
Canada, 2 to 3. In Australia, 2 to 3. That is how we lose on an 
international scale.
    Dr. Babin. Absolutely. Last question, if you could leave 
myself and my fellow members on the committee here with one key 
takeaway today, what steps do you recommend that would help our 
manufacturers? What steps should we take to help our 
manufacturers?
    Mr. Farris. I would say the two guiding principles are 
deadlines. Deadlines, because that creates certainty. And then 
judicial review. There needs to be judicial review. It needs to 
meaningful and timely. And those are our two guiding principles 
for permit reform, sir.
    Dr. Babin. OK. Anything else you would like to add, because 
I still have got a little time?
    Mr. Farris. I just wanted to say thank you to the committee 
and thank you for your leadership on these issues. This is 
something that I believe is a bipartisan issue and that we all 
need to know that we need to figure out how to fix.
    Dr. Babin. Absolutely should be bipartisan, and our economy 
and the American national security are dependent upon that.
    Thank you, Mr. Chairman. I yield back.
    Mr. Rouzer. The gentleman yields.
    Mrs. Sykes.
    Mrs. Sykes. Thank you, Mr. Chair, and thank you for the 
panel for coming to testify today. This has been a riveting 
conversation as many of us here, we are deeply concerned about 
the Bipartisan Infrastructure Law in ensuring that we are able 
to complete these projects. It is especially important in 
communities like mine in Ohio who continue to struggle with 
water quality. And I know the Clean Water Act is especially 
important for us.
    Not my city, but we have heard about the ``mistake on the 
lake,'' when a lake catches on fire, or algal blooms in the 
northwestern part of the district or the State, where we are 
constantly trying to keep mineral deposits and overgrowths that 
negatively impact our water supply. So, I appreciate all of you 
being here to discuss this very important role of the 
infrastructure act.
    And specifically, I am going to go off script just a little 
bit because, Mr. Farris, you had a very interesting point to 
the question about permitting, and I know we are trying to get 
to the root cause of why the permitting is taking so long and 
why we can't get these projects done, even though we have the 
resources for it. And you specifically mentioned delays. And I 
want to ask you a question about the debt bill that was 
recently passed out from this Congress. Because what we 
understand is there will about 22-percent cuts across the 
board. And I heard you mention the Army Corps of Engineers, 
which would mean eliminating employment and employment 
opportunities for people to move those permitting requests 
through.
    You talked about the judicial process. You talked about 
some other Federal agencies, but with the 22-percent cut across 
the board, which would ultimately mean decimating the 
workforce, it would seem like the delays would only increase. 
Is that correct? Yes or no, Mr. Farris?
    Mr. Farris. Ma'am, what we are seeing across the board is--
--
    Mrs. Sykes [interrupting]. Yes or no, Mr. Farris?
    Mr. Farris. Yes.
    Mrs. Sykes. Mr. Farris? Yes.
    Mr. Farris. Yes, yes.
    Mrs. Sykes. Yes. OK. So, it seems like the bill that we got 
from the majority would only exacerbate the permitting process 
in making it longer. Yes or no?
    Mr. Farris. I cannot comment on that. What I can say is 
that on the debt ceiling, the NAM supports--the full faith and 
credit of the United States cannot be questioned. We also 
support permitting reform, and we would love Congress to figure 
out how to be able to do both.
    Mrs. Sykes. Thank you, Mr. Farris. I appreciate you saying 
that, because I do hope that the Speaker is willing to do the 
work to make sure that we get that done and that we do maintain 
the full faith and credit of the United States.
    I will answer the question for you since you would not. It 
would, in fact, make your permitting process much longer and 
exacerbate the process and make it much more difficult for you 
to do the manufacturing that you want.
    Semiconductors in Ohio are incredibly important. Bridge and 
road building is incredibly important in Ohio with so many 
highway and byways and centerline miles. It is going to be very 
detrimental. So, I do hope that we have the full picture as we 
are talking about that question.
    But, Mr. Conway and Madam Secretary, perhaps this next 
question is for you, because water affordability continues to 
be a problem for folks all across the country, whether you are 
in urban areas where I represent, suburban areas where I also 
represent, as well as rural areas where I represent.
    And so, I just want to talk to you and ask you the question 
of: What happens if we fail to pay the bills as a country and 
we don't have the resources to continue to fund these projects? 
How are people going to afford water, clean water, in their 
communities?
    And, Mr. Conway, I will start with you and, Madam 
Secretary, if you wouldn't mind finishing.
    Mr. Conway. Thank you, Congresswoman. Obviously, our 
funding structure is primarily our ratepayers. We do have some 
assistance from the State. Many in our State use Federal funds 
as well through the SRF. It is very important for those 
utilities to be able to use those funds, the infrastructure act 
funds flowing through there.
    As those funds decrease, then again, we have to get to 
really high-priority projects only. You do see that there have 
been failing water systems around the country that were not 
able to continually invest in their systems, and then you reach 
a point where, frankly, there is an emergency in delivering the 
services. The burden on ratepayers can only go so far. Folks 
will not pay their bills at a certain point, and we do see that 
in emergency times and difficult economic times. And so, 
ultimately, there becomes a spot where you can only invest the 
funds you have and you are holding on and putting Band-Aids on 
things. So, funding is critical to make all this work.
    Mrs. Sykes. Thank you, Mr. Conway.
    Madam Secretary?
    Ms. McIlwain. Yes. The bipartisan infrastructure loans help 
make the projects affordable in the disadvantaged communities. 
And so, without the funding--again, I said it earlier, but to 
even think about raising the rates in some of these communities 
would be an economic disaster for those families.
    Mrs. Sykes. Thank you, Madam Secretary.
    And again, just want to highlight how important it is for 
us to figure out the debt ceiling and not move forward with 
what we passed here in the House. And my community specifically 
relies upon low-interest and no-interest loans to keep our 
ratepayers from not having to pay more so that they can 
actually afford not only their water, but their housing, their 
gas, their groceries, and all those important things.
    Thank you, Mr. Chair. I yield back.
    Mr. Rouzer. Mr. Westerman.
    Mr. Westerman. Thank you, Mr. Chairman. And thank you to 
the witnesses today.
    Mr. Conway, last month, the Arkansas Water and Wastewater 
Association visited my office and mentioned its members have 
concerns about EPA PFAS regulation under CERCLA and how that 
would affect their operations.
    As processors in the water system, can you talk more about 
how water utilities are going to have to navigate this 
potential situation?
    Mr. Conway. Thank you, Mr. Congressman. The potential 
CERCLA issue for water and wastewater providers is a really 
serious issue for us. We are passive receivers of PFAS. It 
comes from uses in products and some cases industrial. In my 
particular jurisdiction, it is almost all domestic use that is 
sending PFAS into the system. Then the PFAS, because we do not 
have technology to take it out of wastewater, it passes into 
the biosolids and it passes into the liquid stream in some 
part. We are probably many years away from a large wastewater 
plant, such as mine, being able to manage PFAS, and we are 
working as hard as we can to get there.
    But to the extent that CERCLA liability attaches to 
anything that comes out of our publicly owned plant, costs our 
ratepayers a tremendous amount. Effectively, they would be 
paying to be poisoned. And without a CERCLA exemption for 
wastewater and water treatment folks, the public is just going 
to pay for the cleanup of a product that was manufactured by 
other people.
    Mr. Westerman. So, you think there are exemptions from 
CERCLA for wastewater treatment plants that should be 
considered by Congress?
    Mr. Conway. I believe that Congress could consider an 
exemption for publicly owned wastewater and water treatment 
plants, yes. I think that would be appropriate.
    Mr. Westerman. And talking about wastewater treatment, I am 
going to transition to Mr. Farris here, but I remember a few 
years back, we had a hearing, and I think it was somebody from 
the city of Spokane testified about regulations that were being 
put out by the State of Washington. And I believe it was dioxin 
they were regulating, which we all know dioxin is bad, but the 
regulations actually required levels below an amount that you 
could test for. Like, it was impossible to even test for the 
levels that were being stipulated in this regulation.
    And you very well described what the permitting process is 
like in the real world. That is where I came from doing 
engineering work. I worked on air discharge permits, water 
discharge permits, waded through the mountains of paperwork, 
waited on agencies to reply back, having to correct their 
mistakes and help them through. You talked about how permitting 
is hurting transportation, how it is hurting energy, how it is 
hurting resource development. And then you talked about the 
importance of judicial review and having it done timely. I 
agree with all of that.
    I want you to go into a little bit more detail. There is a 
section in your testimony where you talked about 
PM2.5. And just explain what this is like in what I 
call the real world. Because I saw this in my engineering 
career go from best available technology to maximum available 
control technology. And you get to a point where you are 
spending extraordinary amounts of money for small amounts of 
gain in the reduction of particulates.
    Can you tell--when PM2.5--what size are those 
particles?
    Mr. Farris. So, think of a strand of hair, and that is four 
times as large as--much, much larger than anything on the 
PM2.5. And thank you for the question.
    So, we have recently commissioned a study with Oxford 
Economics on the PM2.5 and the regulations. And what 
we see there is at the level of 12 right now where it is at and 
where EPA wants to go, it will take more than 40 percent of our 
entire population into areas of nonattainment.
    Mr. Westerman. And that means--just so people understand, 
nonattainment means you cannot emit any more particulates in an 
area that is a nonattainment zone. So, when business looks at, 
they say, we can't build here, we will go somewhere else. What 
does that do to economic growth?
    Mr. Farris. We have a story with a member. They were forced 
to spend $400 million. They wanted to build a new facility in 
an area that was currently in nonattainment. This is before the 
new rule came out. And they would have had to have spent $400 
million just to be able to get the air within attainment. What 
they ended up doing was they moved it at a cost of $100 million 
and caused a 6-month delay in the project.
    Mr. Westerman. And when you throw this out and say 
attainment, nonattainment, people might think, well, they 
should just spend all that because it is for the good of 
society, but I don't think people realize the minuscule benefit 
that you get for investing all of that capital, and it never 
stops. The goalpost always moves, and there is always some new 
technology out there.
    And I know I am out of time, but I was just going to ask, 
how far ahead of the rest of the world are we on reducing 
particulate emissions where we are already at?
    Mr. Farris. Thank you. And quickly on the study, it showed 
that we are amongst the best and the cleanest in the world in 
manufacturing.
    Mr. Westerman. Thank you.
    Mr. Rouzer. Ms. Scholten, you are recognized for 5 minutes.
    Ms. Scholten. Thank you, Mr. Chair, and thank you so much 
to our witnesses for helping us understand the critical role of 
the Clean Water Act.
    Water is a way of life in Michigan. The district that I 
represent is part of the Great Lakes watershed and supplies 
freshwater and related natural resources, not only for 
Michiganders and west Michiganders, but truly for the entire 
country. We know that the value of our water in Michigan's 
Third Congressional District is at a premium. Unfortunately, 
PFAS contamination is also a prevalent concern. Just yesterday, 
the Michigan PFAS Action Response Team identified three more 
areas of concern in west Michigan. The safety of our drinking 
water and the health of our communities is at stake.
    My first question is for you, Mr. Conway. In your 
testimony, you talk about the financial impact of cleaning up 
PFAS in cities and towns. Can you talk a little bit more about 
those costs? What are the costs that these cities and towns are 
incurring, and how can municipalities, localities, go about 
accessing dollars from the Bipartisan Infrastructure Law to 
cover them?
    Mr. Conway. Thank you, Ms. Congresswoman. Currently, the 
drinking water folks are experiencing a little bit different 
process than the wastewater folks. In wastewater, we are in a 
sampling and testing phase. We are finding out what is in the 
influent and effluent. And the challenges in testing are 
significant. Testing methodologies are still being approved. 
Very few labs actually go through this testing process. So, 
there is a premium on getting the right labs and the cost of 
doing that. And many of the smaller systems are being really 
heavily burdened by just the costs involved with just finding 
out how much PFAS is in their system.
    So, to the extent that infrastructure or other Federal 
funds can be designated not just for capital projects 
associated with PFAS, but for finding out what is in the stream 
and what we are going to do with it before we start building 
things, that would be really helpful for large and small 
utilities.
    I think one of the big challenges in the long term here is 
going to be that this is not just a capital construction cost 
issue. It is going to be an operational cost issue. The current 
technology is filtration, which for drinking water systems is 
possible because they have pretty clean water sources. 
Wastewater, much more difficult for large systems, and managing 
the operating costs of constantly changing filters.
    And then, frankly, what are we going to do with this stuff? 
That has not determined by EPA or anybody else. That could be a 
significant cost, especially if CERCLA liability attaches to 
PFAS. Landfills may not take it. I don't know what we will do 
with it. So, the cost centers are really around those areas 
right now in the wastewater community.
    Ms. Scholten. Thank you.
    My second question is for Secretary McIlwain, and it 
pertains to new infrastructure improving water quality. As of 
2021, Michigan is estimated to have close to half a million 
lead pipes currently carrying water. In Michigan, we saw up 
close the devastating impacts of lead on children during the 
Flint water crisis.
    While I am proud of the progress that the State is making 
in cleaning up our water supply, I represent a district, a ZIP 
Code, the 49507 region of Grand Rapids, that is ranked the 
second worst in the State for the number of children aged 5 or 
younger that have elevated lead levels in their blood. While 
efforts have begun to replace these pipes that lead to homes in 
this ZIP Code, it remains one of the most underserved and 
gentrified ZIP Codes in my city, which is part of why 
contamination levels got so bad in the first place. It is here 
where I see the social and environmental determinants of health 
negatively impacting families across the city.
    So, my question for you is: How are you ensuring that water 
quality improvement efforts are being equitably implemented?
    Ms. McIlwain. Well, we have the same issues with lead, but 
we have a robust program as well in terms of lead protection 
for children. We have an EJ environmental screening tool that 
we use for a variety of things. We use it for grants and for 
funding. We can also see where we are starting to add health 
indicators into those environmental screens, so, we do use that 
to identify. But we do have a system in place where we are 
looking at where can those funds be most utilized. And it is in 
those areas where we can see children are suffering the most.
    Ms. Scholten. Thank you. My time is about up, so, I yield 
back.
    Mr. Rouzer. The gentlelady yields back.
    Mr. Ezell, you are recognized for 5 minutes.
    Mr. Ezell. Thank you, Mr. Chairman.
    I appreciate the committee continuing to highlight how the 
permitting process is creating harmful delays of critical 
infrastructure projects across the country. Since I have been 
on this committee, it seems like that is what we talk about 
every time, is permitting. Costs are getting higher and 
timelines are getting longer, both because of the uncertainty 
placed on the industry by the Biden administration.
    Mr. Farris, the aggregates industry plays an important role 
in building our Nation's infrastructure. How does the current 
interpretation of the Clean Water Act potentially affect the 
procurement and use of building materials, such as aggregates 
which are vital to public works projects, that benefits south 
Mississippi like water treatment systems and flood control?
    Mr. Farris. Sorry. One more time, sir.
    Mr. Ezell. How does the current interpretation of the Clean 
Water Act potentially affect the procurement and use of 
building materials, such as aggregates which are vital to 
public works projects, that benefits south Mississippi like 
water treatment systems and flood control?
    Mr. Farris. Thank you, sir. What we see are delays up and 
down the board, whether you are getting equipment, whether you 
are preparing your permits, whether you are building a road to 
your facility. The current process creates delays. Whether it 
is 4 years, 4\1/2\, 7 years, that builds uncertainty into this 
process, and that means that the jobs aren't happening in those 
areas.
    Mr. Ezell. Thank you. Considering the potential impact of 
the Clean Water Act's current interpretation on infrastructure 
projects that depend on aggregate materials, what 
recommendations would you make for a more balanced 
interpretation that still protects our water resources?
    Mr. Farris. What we have seen is we have seen that 
deadlines can work. We have seen in other countries that have 
environmental protections that are similar to us, they can get 
things done in 2 to 3 years when we get them done in 7 to 10. 
So, deadlines that we have to meet along with the One Federal 
Decision. Make one agency in charge of this. Everyone answers 
to them. What we have seen up and down the board is other 
agencies not getting in informal paperwork, other agencies not 
coordinating. So, we need One Federal Decision, and we need 
some hard deadlines for them to be able to meet, sir.
    Mr. Ezell. Thank you.
    Dr. Travnicek, given that aggregate materials are a key 
component of many public infrastructure projects, can you 
discuss the potential consequences of an overly expansive and 
unclear interpretation of the Clean Water Act?
    Ms. Travnicek. So, as we are looking at the expansiveness 
with the Clean Water Act and you are looking at infrastructure, 
so, yes, it comes down to those permits, those timelines, try 
to make sure that that is a consistent process for us to go 
through. Because right now, that leads to issues with supply 
chains that might happen, also getting contractors on site. So, 
if there are some issues that come up with not being able to 
have the permit in place, that leads to the delays. So, that is 
where just having some of that consistency.
    Mr. Ezell. Thank you very much. Mr. Chairman, I yield back.
    Mr. Rouzer. The gentleman yields back.
    Mr. Burlison, you are recognized for 5 minutes.
    Mr. Burlison. Thank you, Mr. Chairman. I wasn't ready, but 
I do have questions.
    So, this is also for Dr. Travnicek. Travnicek?
    Ms. Travnicek. Travnicek, yes.
    Mr. Burlison. OK. I came from the State legislature. I am a 
10th Amendment guy. Do you believe that States play an 
important role when it comes to protecting their own waters? 
And how do States like your State of North Dakota care for your 
waters?
    Ms. Travnicek. So, absolutely. I mean, we do have the State 
agencies in place that do have regulatory responsibilities, 
from the Department of Environmental Quality to the Department 
of Water Resources, we have the expertise. We are looking to 
also make sure that we have got good quality water, good water 
quantity. So, we look at those expertise. So, yes. So, we want 
to make sure--that is why we are always stressing the States' 
rights, making sure that you are utilizing our expertise. We 
are the ones that are boots on the ground, so, working with us.
    Mr. Burlison. They are the ones that actually live there 
and know the area, and I think all politics is local.
    OK. Next question is for Mr. Farris. What challenges are 
the manufacturers in the United States facing due to the 
current permitting process?
    Mr. Farris. We are facing delays. What we have decided in 
this country, we need to build more semiconductors. We need to 
build more batteries. And that process right now is 4\1/2\ 
years to create an environmental impact statement. We need to 
build these yesterday. So, we are seeing massive delays 
throughout the permitting process. And we are seeing agencies 
that don't talk to each other. We are seeing informal paperwork 
being delayed that should take no more than 90 days, sir.
    Mr. Burlison. And so, this is a no-brainer, but that 
affects your association's ability to create jobs?
    Mr. Farris. That affects every one of our members' 
abilities to create jobs and improve the local communities in 
which they operate.
    Mr. Burlison. What about energy projects, including 
renewable energy sources? What are the potential consequences 
of delays there, or what is happening with those?
    Mr. Farris. To be able to get many of these renewable 
energy sources on board, we need transmission lines. We need to 
be able to take that power where it is produced and take it to 
where we need it. Transmission lines can take 15 years to 
permit. So, if we bring on a new solar facility or a new 
hydrogen facility, you still need the transmission lines. And 
even within itself, a hydrogen facility takes 4\1/2\ years for 
the environmental impact statement, takes a year to build and 
operate. Four and a half years for that, plus another 15 for 
transmission lines, and that shows you the type of problem we 
have here.
    Mr. Burlison. And with transmission lines, you have to 
acquire the land, which takes time.
    Mr. Farris. It does. It does.
    Mr. Burlison. And so, at a time when we have more critical 
needs than ever and we need to be mining and harvesting 
everything that we can here in the United States, how can we 
improve the regulations within the Clean Water Act?
    Mr. Farris. What we need is enforceable deadlines. If there 
is judicial review, it needs to be meaningful and timely. 
Deadlines will go a long way, as well as One Federal Decision. 
Make sure that one agency is in charge, everyone answers to 
that one agency, and so, they coordinate with everyone else 
involved. They get the informal paperwork from the other 
agencies. So, those two aspects will take us a lot of the way 
there.
    Mr. Burlison. Thank you, Mr. Farris.
    Thank you, Mr. Chairman. I yield back.
    Mr. Rouzer. The gentleman yields back.
    Mr. James, you are recognized for 5 minutes.
    Mr. James. Thank you, Mr. Chairman.
    First of all, I want to thank all the witnesses who are 
here with us today and graciously devoting your time to be here 
and in your everyday life to improve water quality for all 
Americans in your neck of the woods. Your expertise is not only 
valuable, but it also informs us about the real world 
implications of the Clean Water Act.
    In Michigan's 10th Congressional District, I represent a 
district that is not only diverse in its people, but one that 
is blessed with the rich, natural resources from Lake St. Clair 
to the Great Lakes. Michigan's natural beauty is second to 
none, which is why I lead off by asking the question. We have 
to be able to take care of everyone. Clean water is something 
that is important for all humankind, especially when 
communities are struggling financially.
    We talk about these communities being impacted by the Clean 
Water Act over the years. I would appreciate getting feedback 
from the panel on the unique challenges that we are still using 
to manage combined sewer overflows, the storm sewer separation. 
Some of the best practices that you have either deployed or 
seen, and also with the storm sewer separation with what we are 
putting back into our rivers and to our lakes to improve that. 
Also, some of the technologies that you have seen across the 
country and across the world that puts water back into our 
estuaries, aquifers, rivers, lakes, cleaner than we found it.
    Ladies first, please.
    Ms. Travnicek. Yes, Representative. So, the agency that I 
am working with, we don't get into the storm sewer as much as 
some of the other ones might. But as you are looking at 
equitable infrastructure and trying to make sure that you are 
capturing the water quality aspect, whether it is trying to 
make sure that, yes, we are protecting some of those waters, 
but also at the same time looking at water reuse. So, how do we 
put that into other uses as well.
    But my biggest thing as you are looking at the 
infrastructure is tying back to the permits, so, the costs that 
go with it would be the biggest thing on my end, looking for 
those inconsistencies, making sure that we are streamlining, 
because that is going into your costs as you are looking at 
that infrastructure that you are looking for, because that is 
also adding to it. So, that is what I would add.
    Thank you.
    Mr. James. Thank you.
    Yes, please.
    Ms. McIlwain. OK. I am sorry. Can you repeat the last piece 
of your question?
    Mr. James. So, two-part. One, if you have any experience 
with storm sewer separation, those combined sewer overflows 
which are contributing in many cases to the algal blooms that 
you mentioned in your opening statement, and also linked by 
other bacterial growth, that storm sewer separation, if you 
have seen instances in your experiences of where that has been 
done better.
    You mentioned the Chesapeake Bay. If you have some 
experience in some of that separation, and also in the region. 
Just as a hint, North Carolina, I understand, did some--I 
understand Maryland is completely separate--but just on the 
Atlantic Coast, North Carolina experienced some success with 
using technology to clean the Cape Fear water to clean out 
things like PFAS.
    Can you speak on that, Madam Secretary, anything of those 
modern technologies that can help us put water back cleaner?
    Ms. McIlwain. Yes. Well, for one, we need to continue to 
increase hydraulic capacity in infrastructure. The Back River 
that we deal with a lot is the wastewater treatment. It has a 
headworks program that captures a flow, and it reduces basement 
backups that you talked about in sewages and those kinds of 
things. So, we are using technologies. We have used a lot of 
funding in the Bipartisan Infrastructure Law to upgrade the 
wastewater treatment plants and to deal with those issues. And 
we just passed legislation for potable use as well, so--potable 
reuse.
    Mr. James. Thank you, Madam Secretary.
    Gentlemen, in the last minute that we have, can you speak 
specifically, any tactics, techniques, procedures, any best 
practices you have seen in addressing specifically, or what the 
Federal Government could do to address lower income 
communities, communities that are in economic distress, the 
areas that the Federal Government can help with clean water in 
those areas?
    Mr. Conway. Speaking on behalf of NACWA, there are a 
number--especially in the combined system areas--there are a 
number of projects that are being completed, to certain stages 
of completion, long-term control plants. Funding is critical 
for those to be successful. Obviously, costs in the last year 
have skyrocketed, so, estimates of cost for a project in the 
next 5 years were $1 billion; now we are finding it is $2 
billion. So, any increase in funding. Because those projects 
are modern technologies being employed. They are increasing 
capacity. They are using AI. They are allowing those rivers and 
streams that get those discharges to be a lot cleaner. So, it 
is just strictly a funding equation there.
    Mr. James. Thank you, Mr. Conway.
    Mr. Farris, we will reach out offline.
    Thank you, Mr. Chair. I yield.
    Mr. Rouzer. The gentleman yields.
    Mr. Williams, 5 minutes.
    Mr. Williams of New York. Thank you, Mr. Chairman. Glad to 
be here.
    Mr. Farris, specifically in my district, recently, a large 
chip manufacturer has announced a significant, extremely 
significant, historic investment. And one of the deciding 
factors was the availability of water. And clearly, that is 
used in a lot of manufacturing processes that I am familiar 
with, and a little bit familiar with some of the testing and 
treatment of wastewaters.
    As a regards to your organizations that you work with, 
manufacturers, how would you compare the discharge of the 
quality of water, the cleanness of water discharged from your 
facilities today than, say, 50 years ago? What has happened in 
the last 50 years in terms of water quality and water standards 
in manufacturing?
    Mr. Farris. In manufacturing, over the last 50 years, we 
have improved, I believe, it is around 80 percent. We are 
amongst the cleanest in the world. I can get you--I will find--
I can get you that accurate number, but I believe it is around 
80 percent amongst the cleanest in the world.
    Mr. Williams of New York. And 80 percent in what metrics? 
Would you generally--what are pollutants that are concerned 
about? These are chemicals, metals, turbidity, what are some of 
the things?
    Mr. Farris. Absolutely. All of the above. Anything that is 
regulated and discharged into the waterways, we are about 80 
percent better than we were 50 years ago. And constantly 
improving. Manufacturers are constantly innovating and finding 
new ways to be able to be a good environmental steward of the 
environment they work in.
    Mr. Williams of New York. I understand that a lot of 
manufacturing also recycles a lot of its water to reduce its 
waste stream. Do you have any specific examples or context that 
you can give our committee about how manufacturing stewards its 
resource of water, particularly in consuming less and 
discharging it cleaner, as has been the practice?
    Mr. Farris. We can follow up with you directly on some more 
detailed stories, but I can say that manufacturers are 
constantly innovating, and recycling water is one of those 
pieces. We are constantly working to improve the environment 
around us. But we will follow up with you directly with some 
more stories.
    Mr. Williams of New York. Great. Thank you. Does your 
organization also cover the aggregate industry?
    Mr. Farris. Yes. So, we have 14,000 members. We represent 
everything from the five-person manufacturing facility all the 
way up to some of the biggest across all sectors.
    Mr. Williams of New York. So, in my district, we have not 
only this historic potentially $100 billion investment in 
manufacturing and the supporting infrastructure around it, we 
also have a major overhaul of I-81 running right through the 
middle of Syracuse, obviously a very significant construction 
project.
    Can you describe the role that aggregate plays? What is 
aggregate? What is it used for?
    Mr. Farris. I would say it is--I would defer to you, sir.
    Mr. Williams of New York. OK. It is sand and gravel, 
basically, used as different compounds and building blocks, 
specifically in concrete. And it adds strength and durability. 
And there are no streets, there are no buildings, there are no 
sidewalks, there are no parking lots, there are no dams without 
concrete. And one of the key ingredients is what is commonly 
called aggregates, which is all different sizes. Think of it as 
different size stones and different size sand, all that make up 
the physical structure of concrete, as has been the case for 
over 2,000 years, right. The Romans first started using that, 
and many of their monuments still stand.
    But when we are making this tradeoff in terms of clean 
water, I understand that the mining industry also is subject to 
very strict water rules and water discharge rules, particularly 
around something known as TCLP, which maybe you are familiar 
with in terms of heavy metals.
    Can you describe how your organization, I don't know, leans 
into these testing and water quality standards, and how is it 
important that these are very clear standards for you to adhere 
to, for your clients to adhere to?
    Mr. Farris. So, what we do is we work with manufacturers, 
we work on best practices, and we often work with EPA or other 
regulatory bodies to make sure that these standards are 
technically achievable and technically feasible. They are very 
important for our members because all of our members ask for 
regulatory certainty. So, we need to make sure that our members 
understand them and are able to meet them.
    Mr. Williams of New York. Great. Thank you. I yield back.
    Mr. Rouzer. The gentleman's time has expired.
    Garret Graves, 5 minutes.
    Mr. Graves of Louisiana. Thank you, Mr. Chairman. Mr. 
Chairman, thank you for holding this hearing. Ranking Member 
Napolitano, nice to see you as well.
    Dr. Travnicek, I understand you have got some experience 
with 404 permits. We have more than our share of wetlands in 
Louisiana as well. In the IIJA, there was about $160 million 
provided for the Corps of Engineers for regulatory, which is 
about 50 percent of their budget. I am not sure that I have 
seen any improvements in their 404 process, and I am just 
curious if you have seen anything in North Dakota. And as I 
remember North Dakota, I got to tell you, thank you for sending 
Kelly Armstrong. Huge fan. He has been fantastic.
    Ms. Travnicek. Yes, we are very fortunate to have his 
leadership in the State.
    So, as it relates to what we are seeing in North Dakota 
with the Army Corps of Engineers and the 404 permitting, we 
haven't seen anything that has sped up any of the processes. I 
think we are still seeing those delays in timelines. And if 
this were to go into place, right, that is why we are nervous 
about that. I mean, even with the other permits that I have to 
get through the Army Corps of Engineers for the water 
infrastructure projects, we don't know when we will get them 
sometimes. We try to make sure that we are trying to pin them 
down on a timeline, but sometimes that gets passed. So, we 
haven't seen anything that has been able to turn that around 
quickly.
    Mr. Graves of Louisiana. And I think that there are some 
mitigation banks that have been in the process for 10 years 
now, which, of course, causes some additional problems.
    Secretary McIlwain, thanks for being here. I was looking at 
the Maryland OneStop program, where you have an electronic 
regulatory process. And I didn't know if you could provide any 
background. We have actually been looking at an electronic NEPA 
for the Federal process as a way to try and help with 
compliance and better transparency. I just didn't know if you 
had any wisdom or insight to share in regard to your Maryland 
OneStop process for permitting, if there are any lessons 
learned there for helping to just improve efficiency.
    Ms. McIlwain. Oh, I could only speak in general terms about 
increasing efficiency. That is something that I brought to 
every agency I have been at. I would have to look into--I can 
provide that to you later, but I don't have any direct 
knowledge of that.
    Mr. Graves of Louisiana. Sure. Secretary, maybe I 
misunderstood, but I thought you all had--Maryland OneStop was 
kind of a one-stop electronic permitting process that you all 
had. And again, we are trying to figure out at the Federal 
level what we can do to help expedite the permitting at the 
Federal level and, again, better transparency as well. And so, 
if you all do have any lessons learned, it would be great, love 
to hear it. If not, no problem. No need to follow up.
    But a quick followup for you maybe. So, the reality is, 
when you look across infrastructure projects across the United 
States, the majority of those projects actually don't require a 
NEPA analysis, a National Environmental Policy Act analysis, 
because the only cases when NEPA is triggered is when you 
impact certain Federal resources. It could be dollars. It could 
be Federal natural resources. It could be Federal permits. And 
so, most projects don't trigger that because they are using 
local funds, State funds, or private funds, and so, it doesn't 
trigger NEPA. But I know in Maryland, you all care about the 
environment like we do in Louisiana.
    So, I am just curious if you could share any insight to 
your State laws that help to ensure protection of the 
environment for projects that are built that may not trigger 
Federal permits or Federal regulatory implications.
    Ms. McIlwain. Well, we monitor--we have comprehensive 
wetland laws. And back to what you were referring to with the 
OneStop permit, that doesn't--if I understand your question, 
that doesn't apply to all the permits that we have. We have a 
general construction permit. And so, it just depends on what 
kind of permit that you are talking about.
    Yes. But in terms of permitting and NPDES permits, we look 
at the laws. And we have State reviews and environmental 
reviews and--just like NEPA, so, we definitely take a 
comprehensive look at permits.
    Mr. Graves of Louisiana. And obviously, protection of the 
environment, even if there is a project that doesn't trigger 
Federal regulatory, your State process would ensure that you do 
consider protection of the environment as well?
    Ms. McIlwain. Of course.
    Mr. Graves of Louisiana. Yes. OK, OK. Great. Thank you.
    So, I want to go back. There was a gentlelady who a little 
while ago made comments about the debt ceiling legislation and 
suggested, Mr. Chairman, that the debt ceiling legislation 
would actually cause more problems, would delay permitting and 
things like that. And I just wanted to be clear on the record 
that those comments fundamentally misrepresented what was in 
that legislation.
    That legislation actually helps to focus the NEPA process 
on the environment rather than all of these other ancillary 
things, and in doing so, you actually would expedite 
permitting, expedite the NEPA process. It puts in a timeline of 
2 years for an environmental impact statement, 1 year for an 
environmental assessment.
    I want to make note, when Jimmy Carter was President, you 
had 1 year under his regulatory guidance to get through the 
NEPA process. We have allowed for 2 years under an 
environmental impact statement.
    And so, while I certainly appreciate the gentlelady's 
concerns about regulatory, I did want to make note that those 
comments did significantly misrepresent the legislation known 
as the BUILDER Act that passed this part of H.R. 1 earlier this 
year.
    Mr. Chairman, I have a question. I know that there is 
additional information that folks would like to get from our 
expert witnesses today. Is it possible that we have a second 
round of questions?
    Mr. Ezell [presiding]. Yes. Yes, we are going to have a 
second round.
    Mr. Graves of Louisiana. Fantabulous. I yield back, and I 
will wait for a second round.
    Mr. Ezell. Thank you.
    Anybody have any other questions?
    Mr. Graves, you are recognized for 5 minutes.
    Mr. Graves of Louisiana. Hey, look at that. Thank you very 
much.
    I am curious. One of the biggest challenges we have with 
permitting is regulatory certainty. You have folks that have 
resources or investment dollars that are trying to be invested 
and move projects forward. It was noted by Dr. Travnicek that, 
in many cases, your permitting is a black box or a black hole 
where you don't have any idea on permitting certainty.
    Mr. Farris, I am curious, as of September 2021, there were 
about 300 permits in the EPA backlogged for reissuance, 
affecting about 14,000 facilities nationwide. We did pass 
legislation under H.R. 1 that would extend administrative 
contingencies on EPA for 402 authority. Can you talk a little 
bit about concerns on what you are seeing right now with Clean 
Water Act compliance and just delays or uncertainty regarding 
timelines for multiple permits and how NAM may be looking at 
this?
    Mr. Farris. Absolutely. Thank you. And thank you for your 
leadership on H.R. 1. The NAM was happy support that and make 
some meaningful changes.
    What we are seeing on the Clean Water Act is the same thing 
we are seeing up and down the board on permitting. We are 
seeing delays, and we are seeing uncertainty, regulatory 
uncertainty, which causes investment decisions to be made 
elsewhere.
    We have one member who was working through the 402 
permitting process. They make raw materials that are critical 
for semiconductors, for lithium-ion batteries, for electric 
vehicles, for hydrogen, and they wanted to be able to build 
that facility in the U.S. Because of the uncertainty 
surrounding the so-called NPDES permits, the discharge permits, 
they were not able to do that in a certain amount of time, and 
so, they ended up building that facility in the EU that makes 
raw materials for clean hydrogen.
    We are seeing that up and down the board, is when our 
manufacturers have to make investment decisions, they need to 
be able to make it in a timely manner. And when they start 
looking at the environmental impact statements that take on 
average 4\1/2\ years, then they may start to look elsewhere 
when they make those investment decisions.
    Mr. Graves of Louisiana. So, Mr. Farris, let me see if I 
can make sure I am understanding what you are saying. So, 
companies are going to build their projects, but if we have 
regulatory uncertainty or if we have delays or if we have 
repeated rejections, or as I have seen, repeated hurdles thrown 
up, then what these investors or companies are going to do is 
they are still going to build the project, they are just going 
to build it elsewhere.
    And you noted an EU example, but I am going to guess that 
there are probably companies that have taken investment 
decisions to Mexico, Brazil, India, China, and other countries 
that don't have the same environmental conscience that we do in 
the United States. Therefore, if you are concerned about the 
global environment, then our delays or our lack of regulatory 
certainty actually is resulting in a net loss for the global 
environment. Is that fair?
    Mr. Farris. One hundred percent. When you build in America, 
we have amongst the cleanest manufacturing in the world. When 
you build elsewhere, you don't have to meet those same 
standards. You mentioned China. That is a perfect example of 
not having to meet the same standards we have here. And many of 
our members are global members, so, they are going to build 
these facilities to meet this demand.
    Semiconductors are being made everywhere. We want to make 
them in the U.S. If we take a critical raw material and take it 
overseas, we are just defecting where our issues in the supply 
chain are.
    Mr. Graves of Louisiana. Got it. Got it.
    So, I am curious, Mr. Conway, Mr. Farris, have either of 
you all seen any changes? I noted $160 million provided to the 
Corps of Engineers for regulatory under the IIJA. As I recall, 
there was $1 billion for regulatory agencies across the board 
provided for compliance. Have either of you seen any 
improvements or efficiency with those additional funds to the 
agencies?
    Mr. Conway. Not yet. I would assume that some of those 
funds are still being distributed. It takes time to hire, 
especially these days. It is hard to get people moving into 
positions and onboarded and trained. So, we expect at the local 
level at least to have some relief on regulatory issues. 
Because in Colorado, we deal with our State for permitting as 
opposed to the Federal Government on permitting projects. We 
are more focused on State dollars there. So, we haven't seen--
--
    Mr. Graves of Louisiana [interrupting]. Mr. Conway, do you 
have any feedback on an electronic permitting system if you 
think that would be something that is helpful?
    Mr. Conway. I am not familiar with Maryland's system, but 
any improvements that would add to efficiencies to speed time, 
I would be in favor of.
    Mr. Graves of Louisiana. Mr. Farris, any reaction to that?
    Mr. Farris. Completely agree. Anything that can give our 
manufacturers more certainty and a speedier process, we are in 
favor of.
    Mr. Graves of Louisiana. Secretary McIlwain, Maryland has a 
law similar to Louisiana where they allow for performance-based 
contracting on environmental restoration or ecological 
restoration. I don't want to put you on the spot, but if you 
don't mind, I would be curious if you could provide the 
committee with some information on how that has worked, if it 
has been a benefit to the State of Maryland as you all have 
practiced that.
    Ms. McIlwain. I think you are referring to pay-for-success 
programs that we have. They have been very beneficial. And it 
works, because what we do is allow those contracts to perform, 
and then when it does what it says it is going to do, then we 
pay. And then we use it also as a benchmark going forward. So, 
we learned from those projects as well.
    Mr. Graves of Louisiana. Great. Thank you. I want to thank 
you all very much.
    Madam Ranking Member, if you don't recognize this, this is 
called filibustering, because I was trying to buy time for 
somebody to get here, but apparently I failed. That is all I 
can think of. In any case, it was nice seeing you all.
    Thank you, Mr. Chairman.
    Thank you all very much. I appreciate it.
    Mr. Ezell. Thank you. Are you sure the gentleman yields 
back?
    Are there any further questions from any members of the 
subcommittee who have not been recognized?
    Seeing none, that concludes our hearing for today. I would 
like to thank each and every one of you witnesses for your 
testimony.
    One moment, please.
    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 12:02 p.m., the subcommittee was adjourned.]



                                Appendix

                              ----------                              


    Question from Hon. David Rouzer to Andrea J. Travnicek, Ph.D., 
          Director, North Dakota Department of Water Resources

    Question 1. Can you describe the importance of Nationwide Permits 
(NWPs), including NWP 12, for states such as North Dakota?
    Answer. A Nationwide Permit (NWP) is a federally \1\ issued permit 
allowing activities in waters of the United States without going 
through the lengthy individual permit process. The activities permitted 
have minimal individual or cumulative harmful impacts to the 
environment. Examples of the types of activities allowed under discrete 
NWPs are pipelines, utility lines, road crossings, and culverts. NWPs 
allow certainty both for development and for the environment without 
going through the lengthy process of acquiring an individual permit. In 
a state with a limited construction season, a NWP can mean the 
difference of a full year. To an oil producing state like North Dakota, 
NWP 12 is of particular importance.
---------------------------------------------------------------------------
    \1\ Clean Water Act, Section 404(e).
---------------------------------------------------------------------------
    Upon a preconstruction notification to the US Corps of Engineers 
District Engineer, NWP 12 allows for construction, maintenance, repair, 
and removal of oil and natural gas pipelines, provided the activity 
does not result in the loss of greater than \1/2\-acre of waters of the 
United States for each single and complete project. North Dakota has 
56,679.64 miles of rivers and streams, most of which are in our oil 
producing counties (see Figure 1), 295 lakes and reservoirs \2\ 
(715,946.13 acres), and more than 1,000,000 wetlands \3\ (3,206,820 
acres) with densities of more than 150\3\ per square mile in some 
areas. The ability to permit activities in waters with minimal impacts 
and know with relative certainty that the activities will have 
acceptable impacts to the water and environment is beneficial to both 
industry and the public. The industry benefits because the expectations 
are well defined. The public benefits because the environment is 
protected without undue expenditures, which can result in higher energy 
costs for the consumer.
---------------------------------------------------------------------------
    \2\ North Dakota 2018 Integrated Section 305(b) Water Quality 
Assessment Report and Section 303(d) List of Waters Needing Total 
Maximum Daily Loads, N.D. Dep't of Health (Apr. 26, 2019), available 
at: https://deq.nd.gov/publications/WQ/3_WM/TMDL/1_IntegratedReports/
2018_Final_ND_Integrated_Report_20190426.pdf at Table III-1.
    \3\ North Dakota Game and Fish Department website on wetlands and 
lakes available at: https://gf.nd.gov/wildlife/habitats/wetlands-
lakes?gclid=EAIaIQobChMI_PTMgf3R_
wIVfgytBh0clgdgEAAYASAAEgK45_D_BwE.
---------------------------------------------------------------------------
    While the NWP is an excellent tool, it is not without deficiencies. 
In North Dakota, NWP 12 is denied Section 401 Clean Water Certification 
in select waters as the ``one size fits all'' general conditions do not 
provide reasonable assurance that North Dakota Administrative Code ch. 
33.1-16-02.1, Standards of Quality for Waters of the State, is 
supported as intended by the North Dakota Century Code Sec.  61-28-04. 
This is easily remedied by including state specific regional conditions 
that address the unique geology and environment of North Dakota, as 
well the unique issues associated with the types of materials carried 
in the oil and natural gas pipelines.


           Figure 1: North Dakota Rivers and Streams in Blue.

Questions from Hon. Grace F. Napolitano to Andrea J. Travnicek, Ph.D., 
          Director, North Dakota Department of Water Resources

    Question 1. What would be the consequence in the State of North 
Dakota of H.R. 2811, the House Republican proposal to eliminate roughly 
one-quarter of the annual investments in addressing the nation's water 
infrastructure challenge?
    Answer. Any funding is greatly appreciated and would be put to good 
use for projects that benefit the citizens of North Dakota. A reduction 
in funding may slow up the implementation rate of construction 
projects. The difference due to a reduction in federal resources may 
result in a shift of burden to rate payers but other federal, state, 
and local programs may be able to make up for the funds depending on 
the outcome. However, this impact does not impact as much as the 50% 
reduction in funding that has hit the base State Revolving Loan Fund 
Programs over the last two years because of the resumption of 
congressional earmarks.

    Question 2. What would be the impact to ratepayers and average 
American families in North Dakota if they had to make up the difference 
for the cuts in clean water infrastructure spending proposed in H.R. 
2811?
    Answer. Any funding is greatly appreciated and would be put to good 
use for projects that benefit the citizens of North Dakota. A reduction 
in funding may slow up the implementation rate of construction 
projects. The difference due to a reduction in federal resources may 
result in a shift of burden to rate payers but other federal, state, 
and local programs may be able to make up for the funds depending on 
the outcome. However, this impact does not impact as much as the 50% 
reduction in funding that has hit the base State Revolving Loan Fund 
Programs over the last two years because of the resumption of 
congressional earmarks.

    Question 3. If the plan contained in H.R. 2811 to cut one-quarter 
of the funds provided to states to implement their responsibilities 
under the Clean Water Act were realized, what would the consequences be 
for your state in terms of water quality protections and the timeliness 
of state actions to protect North Dakota waters? How would your state 
make up the difference in clean water funds forgone by enactment of 
H.R. 2811, or would this work simply not be carried out?
    Answer. The State has not yet evaluated the impact of cuts to 
project funding on the ability to implement those programs. If the 
State is unable to replace those funds through other means, it may be 
necessary to limit the number of initiated projects to those that are 
most critical to protect public and environmental health in the state. 
This reinforces the need to focus on federal agency core functions 
essential to protecting public health.

    Question 4. How has the Bipartisan Infrastructure Law (BIL) 
investment in wastewater infrastructure helped your state advance the 
public, economic, and environmental health benefits?
    Answer. Any funding is greatly appreciated and would be put to good 
use for projects that benefit the citizens of North Dakota. This 
funding will allow us to complete essential projects that would have 
otherwise needed to wait years to be funded. In a time when water and 
wastewater infrastructure assets are at, or are exceeding their useful 
life, this has become an increasingly difficult challenge for utilities 
of all sizes across the country. Unfortunately, the slow rollout of 
guidance and funding by EPA, current construction sector inflation 
outpacing general inflation, lack of BABA compliant construction 
materials, and a reduction in the number of qualified bidders resulting 
in higher project costs have impacted project developments and timely 
completions. Additionally, the BIL funding overshadows that the State 
Revolving Loan Fund Program base funding has been cut by almost 50% 
over the last 2 years due to the reintroduction of congressional 
earmarks. This reduction in the base program in the long run will limit 
what can be achieved by the State Revolving Loan Fund Programs.

   Questions from Hon. David Rouzer to Hon. Serena Coleman McIlwain, 
           Secretary, Maryland Department of the Environment

    Question 1. The EPA recently entered into a settlement agreement 
with the Chesapeake Bay Foundation and several states, including 
Maryland, to increase compliance activities, specifically on the state 
of Pennsylvania. This means that Pennsylvania farmers will begin 
experiencing new on-farm inspections, new enforcement actions, and new 
permitting costs and requirements. Further, the Environmental 
Protection Agency (EPA) has indicated that some farm operations in 
Pennsylvania may be regulated, for the first time ever, as point 
sources under the Clean Water Act. If farmers and landowners are 
already incorporating conservation practices on their land and making 
improvements to water quality, please explain whether the level of 
enforcement is appropriate or whether it has far-reaching implications.
    Answer. The Maryland Department of the Environment (MDE) and 
Maryland Department of Agriculture (MDA) have worked collaboratively 
for many years to ensure compliance among Maryland's Concentrated 
Animal Feeding Operations (CAFOs), as well as provide technical and 
financial assistance to those farms for adopting conservation 
practices. The oversight and transparency for permitted CAFOs was a 
challenge at first, but has become more routine as the process has 
matured. The agricultural sector in our state is well versed in dealing 
with regulations and permits, and we welcome the consistency between 
farmers and landowners in Pennsylvania to further contribute to 
improving local water quality the way Maryland's farmers and landowners 
have been doing for a number of years. The role of EPA, as a 3rd party, 
should benefit Pennsylvania to also assess how farmers and landowners 
are already incorporating conservation practices on their land.

    Question 2. The 2025 Chesapeake Bay targets were never realistic 
but the Chesapeake Bay Foundation and some states, including Maryland, 
continued to press for it in recent years. EPA Administrator Michael 
Regan said publicly at a House Agriculture hearing on April 19, 2023, 
that the states will not meet the 2025 deadline and that the agency 
needs to reassess its goals. In your view, what is a practical 
timeframe for states, including Pennsylvania, to reasonably meet the 
pollution reductions in their state WIPs?
    Answer. Maryland can only answer for the work it does and we do not 
have the information needed to estimate other jurisdictions' abilities 
to meet their WIP goals for 2025. We believe that Maryland's level of 
restoration and implementation will be very close to meeting our 2025 
WIP nutrient reduction goals for nitrogen and phosphorus that were 
established before the partnership's decision to move additional loads 
identified in the most recent model update to beyond 2025. We're 
meeting our sediment targets already. If our reduction trends hold 
steady, and we do not meet our targets in 2025, then it should only be 
a few more years worth of implementation for our State to reach our WIP 
goals.

    Question 3. With the Bay Total Maximum Daily Load (TMDL) reduction 
being less than two years away, please explain the Maryland Department 
of Environment's plans to reach the final goals and what, if anything, 
the Department intends to ask the agricultural producers in Maryland to 
do to ensure final goals are met.
    Answer. As of 2018, MDE managed Bay Restoration Fund (BRF) upgrades 
to Maryland's 67 major wastewater treatment plants (WWTPs) to the 
highest levels of treatment technology have been fully obligated. As of 
September 2022, 65 upgrades of significant municipal plants were 
completed, with one under construction, and one in the planning phase. 
Minor WWTPs (less than 0.5 million gallons per day) are also being 
upgraded using the BRF on a voluntary basis, and when the upgrade is 
cost-effective. As of September 2023, 12 upgraded minors were in 
operation, six were in construction, and 17 were in design or planning 
stages.
    With the substantial investments in advanced treatment systems at 
its municipal wastewater plants, the state is now considering ways to 
ensure that plants will fully utilize these technologies. The state has 
developed several performance incentive programs, such as the 
Wastewater Operations and Maintenance (O&M) Grant through the BRF, to 
ensure that the wastewater sector surpasses the statewide annual 
average operational goal, established in the Phase III WIP, of 3.25 
milligrams of nitrogen per liter in plant effluent. A statewide annual 
average concentration of 2.85 milligrams of nitrogen per liter is 
required to meet the additional nutrient load reductions needed to 
address 2025 climate change conditions, as explained in the climate 
change addendum to Maryland's Phase III WIP.
    Regarding pollution from septic or on-site waste systems, two of 
the most significant direct benefits, apart from nitrogen reductions, 
are public health and groundwater protection. Toward this end, the 
state agencies are pursuing ``high-benefit'' reductions in places with 
impacts to public health and drinking water quality. Additional 
strategies include accelerating the pace of septic connections to 
sewers in high-benefit areas to take advantage of the significant 
investments Maryland has made in treatment at Maryland's WWTPs.
    For stormwater, over 80% of impervious surfaces in Maryland are 
covered under stormwater National Pollutant Discharge Elimination 
System (NPDES) permits. The Maryland Department of the Environment 
(MDE) has reissued NPDES Municipal Separate Storm Sewer System (MS4) 
Permits for the regulated Phase I large and medium jurisdictions and 
will be reissuing the Maryland Department of Transportation (MDOT) 
State Highway Administration's (SHA) permit. So far for each permit 
cycle, the required retrofits that reduce nutrient pollution from 
historical impervious areas achieve anywhere from 10-20% of total 
needed restoration. MDE is looking for ways to increase the impact of 
this implementation by seeking practices that offer multiple co-
benefits.
    MDE's only direct association with agriculture is through the 
issuance, inspection, and enforcement of permits for CAFO stormwater. 
The Maryland Department of Agriculture is the responsible entity for 
determining what restoration / conservation practices could be 
implemented within that sector. However, if the agricultural sector 
part of our Chesapeake Bay Watershed Implementation Plan is implemented 
as written, the state will achieve its 2025 pollution reduction 
targets. If this goal is not met in 2025, the State would ask the 
agricultural producers to continue committing to the plan they helped 
put together for their sector.

    Question 4. Does the Maryland Department of Environment intend to 
force retirements to achieve higher levels of nutrient reductions to 
meet the 2025 goals?
    Answer. It is unclear from this question what specifically is meant 
by retirements. If this is referring to retiring productive 
agricultural land, MDE does not purchase and retire land. Any 
retirement of productive agricultural land to either forest, wetlands, 
solar, or other land type of land use is the decision of the landowner. 
MDE does not maintain control of State owned lands that lease to 
agricultural producers, so MDE cannot retire those acres either.

    Questions from Hon. Grace F. Napolitano to Hon. Serena Coleman 
      McIlwain, Secretary, Maryland Department of the Environment

    Question 1. What would be the consequence in your state of H.R. 
2811, the House Republican proposal to eliminate roughly one-quarter of 
the annual investments in addressing the nation's water infrastructure 
challenge?
    Answer. For Maryland, a 23% cut to BIL funding would result in more 
than a $100M reduction in funding for projects to clean up the 
Chesapeake Bay, remove toxic lead service lines, eliminate PFAS in 
drinking water, and replace Maryland's aging infrastructure. It would 
also mean more than $50M less in loan forgiveness for our economically 
disadvantaged and environmentally overburdened communities. We already 
know from our Clean Water and Drinking Water Needs Surveys that we as a 
nation have underinvested in our water infrastructure and we also on an 
annual basis receive many more funding proposals than we have funding 
to support. BIL funds represent a once-in-a-generation investment in 
our water infrastructure and any cuts to this historic funding threaten 
further degradation of the nation's water infrastructure.
    Sub-points:
      The investments are unprecedented and have the ability to 
reshape the nation. This investment goes a long way toward bridging the 
infrastructure gap, but a gap still remains meaning our thinking should 
be about doing more, not less.
      Disinvesting in infrastructure funding would be 
devastating with potential negative effects on communities that have 
suffered from long-standing environmental injustices.
      This money is critical for aging water and wastewater 
infrastructure.
      States, tribes and local governments would likely 
struggle to reduce the number of lead service lines in older cities, 
effectively deal with PFAS contamination in drinking water and fish, 
and increase resiliency to extreme weather events.
      We have almost 60 community water systems in Maryland 
with PFAS contamination and about a third of the systems are in 
disadvantaged communities.

    Question 2. What would be the impact to ratepayers and average 
American families if they had to make up the difference for the cuts in 
clean water infrastructure spending proposed in H.R. 2811?
    Answer. The impact of these proposed cuts on ratepayers and average 
American families would be very negative. BIL funding ensures that 
water projects are affordable for our communities, particularly those 
communities and families with lower incomes. Cuts to this funding will 
mean higher rates for our ratepayers and further inflationary pressure. 
Worse, for our water infrastructure, families, and economy is if 
communities put off investing in their water infrastructure projects as 
a result of cuts to BIL funding--this is a very real possibility. It is 
also possible that such disinvestment will spur short-sighted cost-
containment measures, like switching water supply sources that can have 
severe public health consequences akin to the Flint, Michigan, lead 
crisis.

    Question 3. If the plan contained in H.R. 2811 to cut one-quarter 
of the funds provided to states to implement their responsibilities 
under the Clean Water Act were realized, what would the consequences be 
for your state in terms of water quality protections and the timeliness 
of state actions to protect Maryland waters?
    Answer. Today, Federal funds are currently insufficient to cover 
CWA programs run by the state and therefore state special (fees) and 
general funds are used to cover the additional costs.
    The impact could be a decrease in compliance inspections leading to 
a decrease in enforcement, a critical part of the CWA. Permit turn-
around times would likely decrease with the potential to slow the 
economy, including infrastructure construction projects.
    As a downstream state, one of our concerns is the impacts if funds 
were cut to upstream states for pollution reduction projects. Recent 
monitoring information indicates progress in reducing these pollutants 
to the Chesapeake Bay. If less protection and restoration occur in 
upstream areas, we are concerned that this progress could be hindered 
or even reversed. Furthermore, even if the necessary protection and 
restoration are afforded in Maryland, other states with waters 
connected to Maryland's non-tidal waters and/or Chesapeake Bay could 
fall short in meeting their pollution abatement funding needs. Maryland 
does not want to see its substantial investment in restoration of the 
Chesapeake Bay to be undermined by the federal government cutting funds 
provided to states to implement their Clean Water Act responsibilities.

    Question 4. How has the Bipartisan Infrastructure Law (BIL) 
investment helped your state advance the public, economic, and 
environmental health benefits that can be achieved by cleanup of the 
Chesapeake Bay?
    Answer. Maryland's State Revolving Fund (SRF) programs are 
receiving more than $750M in additional funding over five years through 
the Bipartisan Infrastructure Law. This funding will enable Maryland to 
fund dozens of additional projects annually, including critical 
projects to clean up the Chesapeake Bay, remove toxic lead service 
lines, eliminate PFAS in drinking water, and replace Maryland's aging 
water, wastewater, and stormwater infrastructure. The BIL funding 
includes increased levels of additional subsidy, which will allow 
Maryland to provide loan forgiveness to our economically disadvantaged 
and environmentally overburdened communities. Without this critical 
federal investment in our infrastructure we would not have the funding 
we need to tackle these longstanding environmental and public health 
challenges.
    Also, the Infrastructure Investment and Jobs Act (IIJA) of 2021 
authorized $238 million for the EPA Chesapeake Bay Program Office 
(CBPO) for federal fiscal years 2022-2026.
      The CBPO receives approximately $47.6 million per year.
      In FY22 and 23, CBPO allocated over $5.2 million in IIJA 
funding awarded to the State of Maryland for use in most effective 
basins (MEBs). MEBs are tributaries to the bay that have the greatest 
impact on water quality.
      In FY23, EPA also provided over $1.07 million in IIJA 
funding for MD in the form of supplemental funding grants and grants to 
advance Chesapeake Bay Program partnership priorities such as enhancing 
tree canopies.
      Maryland also benefits from the remaining IIJA funds 
which are being allocated to the Chesapeake small watershed and 
innovative nutrient and sediment reduction grant programs; enhancing 
water quality monitoring efforts; and funding research focused on water 
quality and living resources.

    Question 5. Since the beginning of the 118th Congress, House 
Republicans have moved several bills to weaken Clean Water Act 
authorities. What adverse impacts would occur in the State of Maryland 
if some of these efforts to weaken water quality standards were 
enacted?
    Answer. It is not only about investments in restoration of degraded 
ecosystems, the CWA serves as a critical tool to protect healthy 
streams and rivers that flow into the Bay and provide sources of 
drinking water. Maryland has beautiful cold water trout streams as well 
as high quality streams with exceptional aquatic diversity. For 
example, Maryland's small (first, second, and third order) streams 
support more than 50 native fish species, ten native freshwater 
mussels, eight native crayfishes, seven salamanders, and more than one 
hundred genera of benthic macroinvertebrates. The Clean Water Act, 
through the antidegradation requirements in the water quality standards 
and implementation of Section 401 (state water quality certification) 
affords these protections to waters of the United States. Congress 
intended States to protect their waters from harm associated with the 
operation of, and discharges from, federally permitted and licensed 
facilities in Section 401. If an upstream state lacks independent 
authority, the sole recourse for reviewing federally permitted 
activities involving a discharge is through Section 401 certification. 
Severely constraining State authority in the Section 401 review process 
threatens to increase the risk that activities in upstream waters and 
wetlands will threaten water quality in Maryland waters.
    A State's water quality requirements help to ensure that 
communities receive similar benefits from environmental protection 
efforts. To undermine a state's authority in this manner runs in 
opposition to environmental justice. Such limitations on a certifying 
state's authority, prohibits protections of overburdened and 
underserved communities

    Question 6. Earlier this year, President Biden vetoed H.J. Res. 27, 
a resolution to overturn the administration's efforts to clarify the 
scope of Clean Water Act protections. If that resolution had been 
enacted, what would have been the impact to the percent of waters and 
wetlands protected by the Clean Water Act in the State of Maryland?
    Answer. H.J. Res 27, the new WOTUS Rule published on January 18, 
2023, and effective on March 20, 2023, is in effect in Maryland. 
Maryland is not among the 27 states where the new 2023 Rule currently 
is not in effect due to ongoing litigation. Maryland strongly supports 
a science based definition for jurisdictional waters and their linkages 
to chemical, physical and biological integrity of other waters. Most 
waters and wetlands, including isolated wetlands, are regulated in 
Maryland and no changes in state-level jurisdiction have occurred. 
According to a 1:250,000 scale stream map there are at least 8,800 
miles of non-tidal streams and rivers in Maryland. Based on this same 
map, the vast majority (about 91%) of the total stream miles in 
Maryland consist of small streams--with most (5,863 miles or 66%) of 
the total consisting of the smallest mapped streams. Upstream waters 
(ephemeral, intermittent, and small perennial streams) form essential 
aquatic networks that act like capillaries that move all sorts of 
physical and chemical compounds--including pollutants--downstream. The 
conditions of all of the vital resources mentioned above, the success 
of restoration and protection efforts, including Maryland regulations 
for protecting resources and water quality, are strongly influenced by 
the condition of upstream waters.
    Continued progress in conservation efforts relies on sustained 
protection of all upstream waters. Chesapeake Bay restoration efforts 
may suffer if upstream states lack similar authority and at least 
comparable standards to those of Maryland. Ensuring a federal 
regulatory floor is critical to states such as Maryland. Having a 
broader federal definition of Clean Water Act jurisdiction could help 
avoid complex interstate conflicts that might otherwise arise if the 
federal definition were too narrow or non-existent. It is important 
that flowing waters that cross state borders be adequately protected 
from pollution under the upstream state's law (with provisions for the 
downstream state to weigh-in on discharge permits and standards) or, if 
not, be subject to federal jurisdiction so that the downstream state 
can, if need be, participate as a downstream state in the process of 
the permitting of discharges and the establishing of water quality 
standards for such waters. This could potentially be addressed through 
regional interstate efforts and clear Section 401(a)(2) guidance.
    Regionalized approaches are critical for implementation. Maryland 
favors a scientifically defensible definition of waters and recognizes 
that some waters (e.g. ephemeral streams and rivers) are more critical 
in other parts of the country and thus may merit a different level of 
scrutiny. We do believe that states and tribes, working with regional 
offices of federal agencies, can identify the levels of review, 
protection, and regulation, as well as the appropriate tools for 
regional determinations.

    Questions from Hon. Frederica S. Wilson to Hon. Serena Coleman 
      McIlwain, Secretary, Maryland Department of the Environment

    Question 1. Secretary McIlwain, in your testimony, you spoke about 
the need for an accountability system to ensure proper oversight for 
pollution reduction and removal from water resources. What would a 
sufficient accountability system look like?
    Answer. By accountability system, I was referring to the critical 
importance of having a robust compliance and enforcement framework. A 
robust compliance and enforcement framework is a structured and 
comprehensive system to ensure that laws, regulations, standards, and 
policies are adhered to and violations are appropriately addressed. 
Such a framework is essential for maintaining order, promoting 
fairness, and protecting the rights and interests of stakeholders. Key 
components of a robust compliance and enhancement framework include:
      Clear Regulations and Standards: well-defined laws, 
regulations, and standards. These rules must be clear, specific, and 
easy to understand to minimize ambiguity and facilitate compliance.
      Compliance Monitoring: continuous monitoring of 
activities and behavior to ensure they align with established 
regulations. This may involve data collection, audits, inspections, and 
reporting mechanisms.
      Education, Training, and compliance assistance: Those 
subject to compliance regulations should receive proper education and 
training to understand their responsibilities and how to comply with 
the rules.
      Deterrence and Incentives: implementing strategies to 
deter potential violators while also providing incentives for 
compliance, such as recognition or rewards for outstanding compliance 
efforts.
      Risk Assessment: Identify potential risks and prioritize 
enforcement efforts based on the severity of violations and the 
potential impact on stakeholders or the public.
      Enforcement Authorities: Clearly define the roles, 
responsibilities, and regulatory authorities.
      Penalties and Sanctions: specific consequences for non-
compliance, including fines, penalties, legal actions, suspension, or 
revocation of licenses or permits.
      Transparency and Accountability: Ensure that the 
enforcement process is transparent and accountable, with mechanisms for 
appeals, hearings, and dispute resolution.
      Data Management and Documentation: thorough records of 
compliance activities, violations, and enforcement actions. Proper data 
management is essential for tracking trends, conducting investigations, 
and demonstrating accountability.
      Continuous Improvement: periodic review and updating of 
the compliance framework to adapt to changing circumstances, emerging 
risks, and evolving regulations.
      Resource Allocation: ensuring adequate resources 
(financial, human, technological) are allocated to support compliance 
monitoring and enforcement activities.
      Ethical Considerations: incorporate ethical principles 
and checks and balances into the framework to promote integrity, 
fairness, and respect.

    A robust compliance and enforcement framework should strike a 
balance between promoting compliance through education and support and 
deterring non-compliance through enforcement measures. It should also 
be adaptable to changing circumstances and responsive to emerging 
challenges. Ultimately, the goal is to foster a culture of compliance, 
uphold the rule of law, and protect the interests of all stakeholders.

    Question 2. Secretary McIlwain, as you said in your testimony, 
cleaner water contributes to higher property value, and abundant 
resources, and supports our economy. Could you elaborate on how clean 
water fosters job and economic market prosperity?
    Answer. It is very well known that water touches every aspect of 
life. Clean water is a vital component of economic growth and household 
welfare because it supports healthy ecosystems, and is essential and 
fundamental for life itself. Our economy depends on clean water for 
manufacturing, farming, tourism, recreation, energy production, and 
other economic sectors that need clean water to function and flourish. 
Clean water strengthens the State's fishing, tourism, and real estate 
industries, generating economic and recreational benefits estimated at 
billions of dollars each year.
    The best example is the importance of having a restored and clean 
Chesapeake Bay. The Chesapeake Bay is an important tourist and 
recreation attraction in the region. According to Pew \1\, countless 
tourists visit its thousands of miles of shoreline, which generates 
income and jobs for local residents of the area. Tourism and recreation 
activities include boating, fishing, wildlife watching, and more. About 
$2.03 billion in revenue and 32,025 jobs are generated each year in 
Maryland due to its recreational boating industry, the Chesapeake Bay 
Foundation quotes from an Economic Impact of Maryland Boating in a 2007 
report. Additionally, eight million wildlife watchers spent $636 
million, $960 million, and $1.4 billion in Maryland, Virginia, and 
Pennsylvania, respectively, on trip-related expenses and equipment in 
2006 (U.S. Department of the Interior, Fish and Wildlife Service, and 
U.S. Department of Commerce) (``The Economic Impact of the Bay''). 
Striped bass alone result in $500 million in economic activity related 
to fishing expenditures, travel, and lodging each year. In terms of 
real estate, clean water can increase the value of a single family home 
that is located 4,000 feet or closer to the shoreline by up to 25 
percent (``The Economic Impact of the Bay''), so cleaning up the 
Chesapeake Bay would help the economy in that way and many other ways.
---------------------------------------------------------------------------
    \1\ ``Cleaning Up the Chesapeake Bay.'' Pew Charitable Trusts: 
Environmental Initiatives. Feb. 2013. http://www.pewenvironment.org/
news-room/fact-sheets/cleaning-up-the-chesapeake-bay-
8589942050#sthash.LDt679FM.dpuf

    Question 3. Secretary McIlwain, in Florida, we have Biscayne Bay in 
my district, and numerous streams, rivers, lakes, and other water 
sources throughout the state. Many of our cities are located downstream 
and are heavily impacted by the actions of those in the upstream areas. 
How does upstream pollution endanger the well-being of downstream 
communities and economies?
    Answer. As mentioned in the previous response, clean water is vital 
to our health, communities, and economy. We need clean water upstream 
to have healthy communities downstream. The health of rivers, lakes, 
bays, and coastal waters depend on the streams and wetlands where they 
begin. Streams and wetlands provide many benefits to communities by 
trapping floodwaters, recharging groundwater supplies, filtering 
pollution, and providing habitat for fish and wildlife.
    Upstream waters (ephemeral, intermittent, and small perennial 
streams) form essential aquatic networks acting like capillaries that 
move all sorts of physical and chemical compounds--including 
pollutants--downstream. The conditions of all of the vital water 
resources, the success of restoration and protection efforts, including 
Maryland regulations for protecting resources and water quality, are 
strongly influenced by the condition of upstream waters. Continued 
progress toward success in conservation efforts relies on sustained 
protection of all upstream waters. Chesapeake Bay restoration efforts 
may suffer if upstream states lack similar authority and at least 
comparable standards to those of Maryland.

   Question from Hon. Garret Graves to Hon. Serena Coleman McIlwain, 
           Secretary, Maryland Department of the Environment

    Question 1. It is my understanding that the State of Maryland is 
currently using performance contracting for ecological restoration 
projects throughout the state. Could you please describe the benefits 
of this particular contracting mechanism and why the state of Maryland 
has embraced it?
    Answer. Performance Contracting, or Pay for Success (also referred 
to as pay for performance), is an innovative contracting approach that 
connects payment to the delivery of quantified and verified outcomes. 
The Pay for Success approach has many benefits. It leads to greater 
innovation and efficiency in project delivery, as well as greater 
certainty around project costs and outcomes. It also reduces upfront 
costs to governments and leverages the use of private capital to 
facilitate project delivery. It can transfer the costs for long-term 
stewardship to the contractor by including ongoing payments that are 
linked to the verification of sustained environmental outcomes. Pay for 
Success contracts can be structured to incorporate a range of benefits, 
including nutrient reductions, DEIJ, climate resilience, local job 
creation/promotion, habitat creation and carbon sequestration.
    Pay for Success contracts transfer much of the risk associated with 
project delivery (such as cost overruns, change orders, supply chain 
issues, etc.) onto the contractor by securing a unit delivery price at 
the beginning of the contract. This locks in the price per unit the 
government is willing to pay. Also, by paying for environmental 
outcomes the risk of funding ineffective projects is reduced--if 
outcomes are not delivered, then payments are reduced or eliminated.
    Pay for Success programs can also lead to more streamlined 
procurement processes, attracting additional contractors, engineers, 
landowners, and investors. It can lead to rapid, large-scale 
restoration by enabling the project design and implementation to be 
handled by the contractor. Publishing the outcomes of Pay for Success 
contracting creates transparency for the public taxpayer and 
contractors and can serve to further drive down costs and promote 
innovation in project delivery. However, the payment structure requires 
either interim or long-term financing depending on the structure of the 
contract, which can dissuade some contractors from bidding on a 
project.
    Maryland has experience using Pay for Success contracting in the 
Clean Water Commerce Program (a state funded pay for success program 
that pays for nitrogen reductions to restore the Chesapeake Bay), State 
Revolving Fund Program (including the Prince George's County P3 Clean 
Water Partnership Program), and Maryland State Highway Administration's 
Full Delivery Stream Restoration procurement. A new State law--The 
Conservation Finance Act--opens up additional opportunities for Pay for 
Success contracting in Maryland.
    Maryland is also engaging federal agencies like the Army Corps of 
Engineers (USACE), to modernize existing registration and mapping tools 
to better support pay for performance projects. For example, 
modernizing and expanding the USACE Regulatory In lieu fee and Bank 
Information Tracking System (RIBITS) to include carbon outcomes would 
provide consistent tracking and accounting of quantified and verified 
outcomes associated with ecosystem restoration in Maryland and across 
the Chesapeake Bay region.

  Questions from Hon. David Rouzer to Mickey Conway, Chief Executive 
   Officer, Metro Water Recovery, Denver, Colorado, on behalf of the 
              National Association of Clean Water Agencies

    Question 1. How has the Environmental Protection Agency (EPA) 
historically interpreted the Section 402(k) ``permit shield'' policy? 
How would utilities be affected if this interpretation no longer 
applied?
    Answer. CWA Section 402(k)--the NPDES ``permit shield'' provision--
stipulates that compliance with an NPDES permit constitutes compliance 
with the CWA itself. Under its longstanding ``permit shield'' policy, 
EPA has interpreted section 402(k) to mean that, as long as a permittee 
provides all necessary information throughout its application process, 
the limits included in its final NPDES permit lay out the extent of the 
permittee's obligations under the CWA. In other words, ``the burden 
[is] on permit writers rather than permittees to search through the 
applicable regulations and correctly apply them to a permittee through 
its permit. This means that a permittee may rely on its permit to know 
the extent of its enforceable duties.'' EPA, Consolidated Permit 
Regulations, 45 Fed. Reg. 33290, 33312 (May 19, 1980).
    In addition to reiterating that the onus is on permit writers to 
place all necessary limits in a permit, EPA's ``permit shield'' policy 
also clarifies that an NPDES permit authorizes the discharge of more 
than just the specific pollutants listed in or limited by the permit. 
Rather, an NPDES permit authorizes all of the following: (1) pollutants 
specifically limited in the permit or which the permit, fact sheet, or 
administrative record explicitly identify as controlled through 
indicator parameters; (2) pollutants for which the permit authority has 
not established limits or other permit conditions, but which are 
specifically identified as present in facility discharges during the 
permit application process; and (3) pollutants not identified as 
present, but which are constituents of waste streams, operations, or 
processes that were clearly identified during the permit application 
process.'' This ensures that a permit writer does not need to list 
every single pollutant that might be discharged for a discharge to be 
considered ``lawful,'' and ensures that permit holders are not 
subjected to unanticipated post-hoc enforcement efforts.
    The U.S. Supreme Court has held that the purpose of the section 
402(k) ``permit shield'' is to ``insulate permit holders from changes 
in various regulations during the period of a permit and to relieve 
permit holders of having to litigate the question of whether their 
permits are sufficiently strict. In short, Section 402(k) serves the 
purpose of giving permits finality.'' E.I. du Pont de Nemours & Co. v. 
Train, 430 U.S. 112 (1977). EPA's longstanding interpretation of 
section 402(k) has been critical to ensuring that utilities are able to 
avail themselves of this much needed finality by allowing utilities to 
rely on their NPDES permits to know the extent of their CWA obligations 
and to shield utilities from unwarranted post-hoc liability. This in 
turn allows utilities to maintain, upgrade, and operate the nation's 
critical stormwater and wastewater infrastructure in a manner that 
allows for advanced planning and consideration of key factors such as 
affordability and resiliency.

    Question 2. In your testimony, you discuss the city of San 
Francisco and litigation aimed at forcing EPA to remove ``cause or 
contribute'' boilerplate language from one of its National Pollutant 
Discharge Elimination System (NPDES) permits. Can you discuss how 
reforms aimed at requiring permit writers to use terms that clearly 
identify their specific pollutant(s) for compliance can help reduce 
unnecessary litigation and provide large and small cities with more 
regulatory certainty?
    Answer. As EPA has long noted, ``despite commonly held beliefs, 
water quality standards are not directly enforceable.'' Rather, under 
the Clean Water Act, water quality standards get translated by permit 
writers into enforceable limits--called effluent limitations--that are 
designed to ensure that a permitted discharge does not violate the 
water quality standards of the waterbody a permittee is discharging 
into. EPA's permitting regulations and guidance lay out detailed 
processes for how these water quality-based effluent limitations are 
developed for the various types of pollutants a permittee may 
discharge.
    These water quality-based effluent limitations are supposed to 
clearly identify what water quality standard(s) they are designed to 
address, which pollutant(s) they apply to, and what, exactly, a permit 
holder must do to be in compliance. This clarity not only helps ensure 
that adequate protections for the receiving waterbody are in place, it 
also provides utility permittees with the certainty needed to plan and 
invest in major clean water infrastructure projects. Clean Water Act 
compliance should not be either a hidden or a moving target--it should 
be clearly spelled out in a utility's NPDES permit.
    However, where permit writers instead use generic, boilerplate 
``cause or contribute'' language that fails to provide guidance to 
either permittees about what is expected of them or to permitting 
authorities and citizens about what constitutes a violation of a water 
quality standard, the careful permitting system Congress designed in 
CWA Section 402 is turned on its head, and utility permittees are 
subjected to unnecessary, after-the-fact litigation over what 
``compliance'' actually means.
    The threat of such litigation is antithetical to a city's ability 
to strategically plan for and undertake projects that will have the 
greatest environmental and human health benefits for communities. When 
``compliance'' can mean different things from one day to the next--or 
one courtroom to the next--running a utility that produces the best 
outcomes for its communities while keeping rates affordable and 
engaging in forward-looking planning becomes nearly impossible. Reforms 
aimed at ensuring that permit writers clearly lay out compliance 
requirements could help alleviate such issues.

    Question 3. Earlier this year, EPA finalized its revised Financial 
Capability Assessment (FCA) Guidance, a critical tool designed to gauge 
how much a community can afford to pay to meet its Clean Water Act 
(CWA) compliance requirements.
    After several years of collaborative work by EPA under the Obama 
and Trump Administrations with the water utility sector to revise and 
improvise this critical document, the Biden Administration's new final 
guidance does away with the progress made under the previous 
Administrations. Instead, the guidance appears to give environmental 
activists everything they asked for, while leaving the public clean 
water utilities that must implement it frustrated and disappointed.
    Can you discuss some of the water affordability challenges 
communities are facing? What is the importance of ensuring any FCA 
guidance truly looks at the impact of CWA mandates and related bill 
increases on low-income households?
    Answer. Currently countless American households, both urban and 
rural, are struggling to pay their increasing water and sewer bills all 
while public utilities are facing increased costs of regulatory 
compliance, maintaining aging infrastructure, inflation and supply 
chain issues to name a few. Other growing costs which will impact water 
bills, such as addressing emerging contaminants and PFAS, loom on the 
horizon and will make the water affordability challenge even greater.
    NACWA and its utility members partnered with other water sector and 
municipal groups for many years to advocate for an updated approach to 
EPA's Financial Capability Assessment Guidance that looks at the 
impacts of new CWA mandates and related bill increases on actual low-
income households within an impacted community, as opposed to more 
broad-brush comparisons of community and national level metrics that 
often serve to mask the actual impact on individual households. 
Congress has weighed in over several year including directing a report 
providing recommendations to improve the guidance.
    Unfortunately, despite years of good progress made with both the 
Obama and Trump Administration, EPA's new FCA Guidance released this 
past February fails to take this household level approach, meaning that 
the true impacts on these households--many in Environmental Justice 
communities--may not be fully considered and leaving them to continue 
paying a disproportionately higher amount of their income on clean 
water bills.
    The new Guidance also includes an arbitrary cap on the amount of 
time communities may be allowed to implement CWA mandates and a new 
requirement for communities to complete a complex economic analysis 
before regulators will consider providing extended compliance 
schedules. Both these elements will make it much more difficult, and 
expensive, for communities to address affordability challenges for 
their low-income residents.
    It is important for Congress to conduct oversight and call on EPA 
to rewrite this guidance in a manner that actually looks at CWA 
compliance through the lens of poor households and families who can't 
afford sudden and major rate increases.

    Questions from Hon. Grace F. Napolitano to Mickey Conway, Chief 
Executive Officer, Metro Water Recovery, Denver, Colorado, on behalf of 
            the National Association of Clean Water Agencies

    Question 1. What would be the consequence to your utility and other 
NACWA wastewater facilities of H.R. 2811, the House Republican proposal 
to eliminate roughly one-quarter of the annual investments in 
addressing the nation's water infrastructure challenge?
    Answer. NACWA greatly appreciates the investments made under the 
IIJA to help water utilities maintain and upgrade the critical clean 
water infrastructure that is critical to protecting the human health 
and environments of the communities we proudly serve.
    Even with those investments, over 90 percent of investment in water 
still comes from local ratepayers and states. Public clean water 
utilities and their communities are facing increasingly complex and 
costly challenges that require maintaining and growing investment, not 
reducing investment. These include reinvesting in aging infrastructure; 
managing escalating operations and maintenance costs and supply chain 
disruptions; attracting and retaining a skilled workforce; addressing 
new water quality impairments and regulations such as for per- and 
polyfluoroalkyl substances (PFAS) and nutrients; and investing in 
climate adaptation and system resiliency and security. It is a constant 
challenge for public clean water utilities as they work to meet these 
challenges and strive to provide the highest level of service while 
preserving water affordability for local ratepayers.
    In order to ensure that communities have the resources they need to 
make critical clean water investments and ensure regulatory compliance 
without placing undue financial burdens on the backs of ratepayers, it 
is imperative that the new investments passed into law by Congress in 
recent years be fully provided as promised in the years ahead.

    Question 2. What would be the impact to your ratepayers and average 
American families served by municipal wastewater facilities if they had 
to make up the difference for the cuts in clean water infrastructure 
spending proposed in H.R. 2811? How would your utility make up the 
difference in clean water funds forgone by enactment of H.R. 2811, or 
would this work simply not be carried out?
    Answer. As stated above, over 90 percent of investment in water 
still comes from local ratepayers and states. The increased federal 
investment provided by Congress in recent years is providing pivotal 
help to many local communities to meet their clean water investment 
needs without further overburdening customers. Without this federal 
investment, more communities would need to look to more costly market-
rate financing which would increase water rates for decades to come. 
Other utilities may need to forgo projects that have the potential to 
manage or reduce operational costs long term or meet related utility 
objectives, such as improving storm resilience. For these reasons we 
hope to see Congress' investment promises fulfilled in the years ahead.

    Question 3. How has the Bipartisan Infrastructure Law requirement 
that 49 percent of Clean Water State Revolving Fund be distributed as 
grants or principal forgiveness benefited the families your utility 
serves?
    Answer. Metro has not utilized directly the CWSRF dollars provided 
under IIJA to date. We are working with many of our regional 
communities to help them access these critical dollars.
    Generally speaking, the IIJA provision requiring that 49 percent of 
the dollars flowing out to the SRF programs to be allocated by the 
states as additional subsidy is particularly important for getting 
federal help to disadvantaged communities. The additional subsidy can 
be in form of forgivable loans or grants, rather than low-interest 
loans that need to be repaid, benefiting utilities that might not have 
the capacity for loan financing and targeting areas facing serious 
needs or financial hardship.
    Because the SRFs are run through the states--each of which has its 
own rules for applying additional subsidy--EPA has provided 
recommendations for how states should consider targeting the subsidy to 
reach potentially eligible areas and communities. Strengths of this 
guidance including encouraging states to look beyond singular metrics 
of disadvantage and consider various metrics such as unemployment, how 
water and sewer rates compare to lowest quintile income, and ensuring 
funds reach urban areas of poverty as well as rural and small 
communities.
    While EPA has laid out guidance, the task of implementation falls 
to the states. Given the significant influx of funding, NACWA strongly 
believes that states must be innovative in how they apply this 
additional subsidy, and we stand ready to serve as a resource in how 
states update their definitions. To date, we have heard from utilities 
how numerous states have updated their definitions of disadvantaged 
communities to be more inclusive. We recommend that Congress continue 
to monitor how additional subsidies are applied and remain open to 
potentially providing further direction to the programs as 
implementation advances. This will help ensure that IIJA addresses 
pervasive issues of equity and access to infrastructure funding.
    This is also an area where clean water utilities can help achieve 
the goals of IIJA. Particularly in the case of relatively large, 
regional sewer systems serving a range of communities within a service 
area. Public clean water utilities should be considered as potential 
partners to secure and implement federal funding. Public clean water 
agencies can help the small and disadvantaged cities and towns in their 
area secure federal assistance for which they otherwise may have 
struggled to identify as an opportunity, identify a project, apply, and 
administer funds. Regional clean water utilities can help provide the 
outreach, technical support, and potentially financial strength to help 
disadvantaged areas they serve realize the benefits of IIJA.
    One challenge to note is that because the additional subsidy is 
coming through the SRFs, in order to qualify, applicant communities 
need to demonstrate their ability to pay back the funds. This is the 
case even with the additional subsidization funding, for which the 
community receives loan forgiveness. This can be a challenge in some 
instances, for example, stormwater projects that may be eligible 
investments under the CWSRF but where a community may not have a sewer 
fee that can demonstrate the ability to repay a loan that is eligible 
for principal forgiveness. While the SRFs are a tremendous tool to 
deliver federal assistance to local communities, there is also an 
important role for purely ``grant'' dollars in the scope of future 
federal funding.

  Questions from Hon. David Rouzer to Brandon Farris, Vice President, 
   Energy and Resources Policy, National Association of Manufacturers

    Question 1. What sort of issues does the Environmental Protection 
Agency's (EPA)'s use of Section 404(c) preemptive and retroactive 
vetoes outside of the conventional Army Corps 404 process cause? How 
does this affect project certainty?
    Answer. It is important to have clarity and certainty that 
Nationwide Permits can be used to speed up the development of projects 
that support manufacturing and energy security. Congress should clarify 
that the EPA's authority under Section 404(c) is not to be used to pre-
emptively bar potential activities requiring a Clean Water Act Section 
404 permit before there is an applicant or a project; or for the EPA to 
make a veto determination under 404(c), an entity must apply for an 
actual Section 404 permit with the Army Corps.

    Question 2. How would extending the timeframe for Nationwide 
Permits (NWPs) from five to ten years create a more conducive 
environment for moving critical projects forward?
    Answer. In March 2022, the U.S. Army Corps of Engineers announced a 
formal review of Nationwide Permit 12 for Oil & Gas Pipeline 
activities. NWP 12 is a key permit for pipeline infrastructure 
projects, which often take significant capital and time to plan and 
construct. Extending the timeframe for an NWP would provide additional 
clarity and certainty for the financing and development of projects 
that support our energy industry.

    Question 3. Since the Corps' issuance and reissuance of NWP 12 is 
limited to activities that have ``no effect'' on listed species or 
designated critical habitat under the Endangered Species Act (ESA), 
what affect does consultation with agencies other than EPA have on 
projects that benefit from NWP 12?
    Answer. Because the scope of NWP 12 is limited to activities that 
have ``no effect'' on listed species or designated critical habitat 
under the Endangered Species Act, consultation with agencies other than 
the EPA can delay projects without achieving any of the goals of the 
ESA.

    Question 4. How would including judicial review timelines, as have 
been proposed in other judicial review provisions, for individual or 
general permits under NWP 12 improve project completion and certainty?
    Answer. Manufacturers appreciate the House's efforts on permitting 
reform in the Fiscal Responsibility Act, and the inclusion of a 120-day 
claims bar in the House-passed Limit, Save, Grow Act. We hope the bill 
sets the stage for more comprehensive permitting reform in months to 
come. Setting reasonable timelines for bringing legal challenges would 
significantly improve project certainty. Federal agency actions have 
routinely been challenged. In some instances, legal challenges were 
brought forward after significant financial investment in a project or 
a project had started construction. A lack of a timeline for judicial 
review introduces substantial project uncertainty for companies that 
rely on federal decision making.

  Question from Hon. Doug LaMalfa to Brandon Farris, Vice President, 
   Energy and Resources Policy, National Association of Manufacturers

    Question 1. Mr. Farris, I have a bill, H.R. 1586, the Forest 
Protection and Wildland Firefighter Safety Act, which will continue the 
current policy allowing aircraft to deploy fire retardant to fight and 
prevent wildfires. It is my understanding that the National Association 
of Manufacturers has members that, as the makers of aerial fire 
retardant and also the aircraft used to fight these fires, are quite 
familiar with this situation. As you may know, due to recent legal 
activity, the federal agencies in charge of fighting wildfires on our 
public lands are in danger of losing this absolutely essential tool. 
Can you tell us what the repercussions will be if the courts rule that 
aerial firefighting must be halted until a permit can be issued? 
Additionally, I have seen some half-measures proposed, designed to 
provide only temporary legal relief instead of a permanent solution, to 
fix this problem. Can you please explain why a more lasting solution, 
such as that found in H. R. 1586, is preferred?
    Answer. As you noted, manufacturers in America make aerial fire 
retardants as well as the aircraft used to fight wildfires. The 
devastation wildfires cause is severe, and the effects are widespread, 
with nearly 100 million people in North America experiencing very poor 
air quality due to the current wildfires in Canada.\1\ The agencies in 
charge of fighting wildfires need access to every tool in their arsenal 
for appropriate wildfire response. Lives and health are at risk if 
aerial firefighting is halted until a permit can be issued. Time is of 
the essence, and the longer a wildfire is allowed to burn, the greater 
the devastation. A more lasting solution is preferred to ensure that 
the people tasked with keeping us safe from wildfires have every tool 
at their disposal.

    \1\ [Editor's note: The paragraph above contains a footnote number, 
but a footnote was not provided.]