[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]
WATERS OF THE UNITED STATES IMPLEMENTATION POST-SACKETT DECISION:
EXPERIENCES AND PERSPECTIVES
=======================================================================
(118-69)
HEARING
BEFORE THE
SUBCOMMITTEE ON
WATER RESOURCES AND ENVIRONMENT
OF THE
COMMITTEE ON
TRANSPORTATION AND INFRASTRUCTURE
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTEENTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 11, 2024
__________
Printed for the use of the
Committee on Transportation and Infrastructure
GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT
Available online at: https://www.govinfo.gov/committee/house-
transportation?path=/browsecommittee/chamber/house/committee/
transportation
_______
U.S. GOVERNMENT PUBLISHING OFFICE
58-131 PDF WASHINGTON : 2025
COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
Sam Graves, Missouri, Chairman
Rick Larsen, Washington, Ranking
Member
Eleanor Holmes Norton, Eric A. ``Rick'' Crawford,
District of Columbia Arkansas
Grace F. Napolitano, California Daniel Webster, Florida
Steve Cohen, Tennessee Thomas Massie, Kentucky
John Garamendi, California Scott Perry, Pennsylvania
Henry C. ``Hank'' Johnson, Jr., Georgiaian Babin, Texas
Andre Carson, Indiana Garret Graves, Louisiana
Dina Titus, Nevada David Rouzer, North Carolina
Jared Huffman, California Mike Bost, Illinois
Julia Brownley, California Doug LaMalfa, California
Frederica S. Wilson, Florida Bruce Westerman, Arkansas
Mark DeSaulnier, California Brian J. Mast, Florida
Salud O. Carbajal, California Jenniffer Gonzalez-Colon,
Greg Stanton, Arizona, Puerto Rico
Vice Ranking Member Pete Stauber, Minnesota
Colin Z. Allred, Texas Tim Burchett, Tennessee
Sharice Davids, Kansas Dusty Johnson, South Dakota
Jesus G. ``Chuy'' Garcia, Illinois Jefferson Van Drew, New Jersey,
Chris Pappas, New Hampshire Vice Chairman
Seth Moulton, Massachusetts Troy E. Nehls, Texas
Jake Auchincloss, Massachusetts Tracey Mann, Kansas
Marilyn Strickland, Washington Burgess Owens, Utah
Troy A. Carter, Louisiana Rudy Yakym III, Indiana
Patrick Ryan, New York Lori Chavez-DeRemer, Oregon
Mary Sattler Peltola, Alaska Thomas H. Kean, Jr., New Jersey
Robert Menendez, New Jersey Anthony D'Esposito, New York
Val T. Hoyle, Oregon Eric Burlison, Missouri
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
Christopher R. Deluzio, Pennsylvania Mike Collins, Georgia
Mike Ezell, Mississippi
John S. Duarte, California
Aaron Bean, Florida
Celeste Maloy, Utah
Kevin Kiley, California
Vince Fong, California
Subcommittee on Water Resources and Environment
David Rouzer, North Carolina,
Chairman
Grace F. Napolitano, California,
Ranking Member
John Garamendi, California Daniel Webster, Florida
Emilia Strong Sykes, Ohio, Thomas Massie, Kentucky
Vice Ranking Member Brian Babin, Texas
Jared Huffman, California Mike Bost, Illinois
Frederica S. Wilson, Florida Doug LaMalfa, California
Patrick Ryan, New York Bruce Westerman, Arkansas
Val T. Hoyle, Oregon Brian J. Mast, Florida
Hillary J. Scholten, Michigan Jenniffer Gonzalez-Colon,
Julia Brownley, California Puerto Rico
Mark DeSaulnier, California Burgess Owens, Utah
Greg Stanton, Arizona Eric Burlison, Missouri
Chris Pappas, New Hampshire Derrick Van Orden, Wisconsin
Seth Moulton, Massachusetts Brandon Williams, New York
Troy A. Carter, Louisiana Mike Collins, Georgia
Eleanor Holmes Norton, Mike Ezell, Mississippi
District of Columbia John S. Duarte, California
Rick Larsen, Washington (Ex Officio) Celeste Maloy, Utah
Kevin Kiley, 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................... 4
Prepared statement........................................... 6
Hon. Rick Larsen, a Representative in Congress from the State of
Washington, and Ranking Member, Committee on Transportation and
Infrastructure, opening statement.............................. 7
Prepared statement........................................... 8
WITNESSES
Emma Pokon, Commissioner, Alaska Department of Environmental
Conservation, oral statement................................... 11
Prepared statement........................................... 12
Nicole Rowan, Director, Water Quality Control Division, Colorado
Department of Public Health and Environment, oral statement.... 13
Prepared statement........................................... 15
Courtney Briggs, Chairman, Waters Advocacy Coalition, on behalf
of the American Farm Bureau Federation, oral statement......... 19
Prepared statement........................................... 21
Vincent E. Messerly, President, Stream and Wetlands Foundation,
on behalf of the National Association of Home Builders, oral
statement...................................................... 27
Prepared statement........................................... 29
SUBMISSIONS FOR THE RECORD
Response to Waters Advocacy Coalition's Freedom of Information
Act Request, Submitted for the Record by Hon. Mike Collins..... 53
Submissions for the Record by Hon. David Rouzer:
Letter of September 11, 2024, to Hon. David Rouzer, Chairman,
and Hon. Grace F. Napolitano, Ranking Member, Subcommittee
on Water Resources and Environment, from Kristen
Swearingen, Vice President, Legislative and Political
Affairs, Associated Builders and Contractors............... 59
Letter of September 9, 2024, to the Committee on
Transportation and Infrastructure and the Subcommittee on
Water Resources and Environment, from Benjamin Davenport,
Executive Vice President, Idaho Mining Association......... 60
Letter of September 9, 2024, to Hon. David Rouzer, Chairman,
and Hon. Grace F. Napolitano, Ranking Member, Subcommittee
on Water Resources and Environment, from Alex Etchen, Vice
President, Government Relations, Associated General
Contractors of America..................................... 61
Letter of September 10, 2024, and Memo from Fall 2023 to Hon.
David Rouzer, Chairman, and Hon. Grace F. Napolitano,
Ranking Member, Subcommittee on Water Resources and
Environment, from Chad W. Lord, Senior Director, Government
Affairs, National Parks Conservation Association........... 62
Letter of September 11, 2024, to Hon. David Rouzer, Chairman,
and Hon. Grace F. Napolitano, Ranking Member, Subcommittee
on Water Resources and Environment, from Michele Stanley,
Executive Vice President and Chief Advocacy Officer,
National Stone, Sand & Gravel Association.................. 68
Letter of September 11, 2024, to Hon. David Rouzer, Chairman,
and Hon. Grace F. Napolitano, Ranking Member, Subcommittee
on Water Resources and Environment, from Rich Nolan,
President and Chief Executive Officer, National Mining
Association................................................ 69
Letter of September 6, 2024, to the Committee on
Transportation and Infrastructure and the Subcommittee on
Water Resources and Environment, from Ryan Anderson,
Commissioner, Alaska Department of Transportation and
Public Facilities.......................................... 71
Letter of September 6, 2024, to Hon. Sam Graves, Chairman,
and Hon. Rick Larsen, Ranking Member, Committee on
Transportation and Infrastructure, and Hon. David Rouzer,
Chairman, and Hon. Grace F. Napolitano, Ranking Member,
Subcommittee on Water Resources and Environment, from 24
State Attorneys General.................................... 72
Submissions for the Record by Hon. Grace F. Napolitano:
Statement of American Rivers................................. 76
Letter of September 10, 2024, to Hon. Sam Graves, Chairman,
and Hon. Rick Larsen, Ranking Member, Committee on
Transportation and Infrastructure, and Hon. David Rouzer,
Chairman, and Hon. Grace F. Napolitano, Ranking Member,
Subcommittee on Water Resources and Environment, from
Felice Stadler, Vice President, Government Affairs,
National Audubon Society................................... 82
Letter of September 10, 2024, to Hon. Sam Graves, Chairman,
and Hon. Rick Larsen, Ranking Member, Committee on
Transportation and Infrastructure, and Hon. David Rouzer,
Chairman, and Hon. Grace F. Napolitano, Ranking Member,
Subcommittee on Water Resources and Environment, from the
Clean Water for All Coalition.............................. 83
Letter of September 11, 2024, to Hon. David Rouzer, Chairman,
and Hon. Grace F. Napolitano, Ranking Member, Subcommittee
on Water Resources and Environment, from Jim Murphy, Senior
Director, Legal Advocacy, National Wildlife Federation..... 86
Letter of October 17, 2023, to Hon. Thomas R. Carper,
Chairman, and Hon. Shelley Moore Capito, Ranking Member,
Senate Committee on Environment and Public Works, from
farmers and agricultural professionals..................... 89
Letter of September 10, 2024, to Hon. Sam Graves, Chairman,
and Hon. Rick Larsen, Ranking Member, Committee on
Transportation and Infrastructure, and Hon. David Rouzer,
Chairman, and Hon. Grace F. Napolitano, Ranking Member,
Subcommittee on Water Resources and Environment, from
Protect Colorado Waters Coalition.......................... 90
APPENDIX
Questions from Hon. David Rouzer to Emma Pokon, Commissioner,
Alaska Department of Environmental Conservation................ 93
Questions from Hon. David Rouzer to Courtney Briggs, Chairman,
Waters Advocacy Coalition, on behalf of the American Farm
Bureau Federation.............................................. 96
Questions from Hon. David Rouzer to Vincent E. Messerly,
President, Stream and Wetlands Foundation, on behalf of the
National Association of Home Builders.......................... 98
September 6, 2024
SUMMARY OF SUBJECT MATTER
TO: LMembers, Subcommittee on Water Resources and
Environment
FROM: LStaff, Subcommittee on Water Resources and
Environment
RE: LSubcommittee Hearing on ``Waters of the United
States Implementation Post-Sackett Decision: Experiences and
Perspectives''
_______________________________________________________________________
I. PURPOSE
The Subcommittee on Water Resources and Environment of the
Committee on Transportation and Infrastructure will meet on
Wednesday September 11, 2024, at 10:00 a.m. ET in Room 2167 of
the Rayburn House Office Building to receive testimony at a
hearing entitled, ``Waters of the United States Implementation
Post-Sackett Decision: Experiences and Perspectives.'' The
hearing will examine implementation of the Administration's
conforming rule on the definition of the definition of ``waters
of the United States'' (WOTUS) under the Clean Water Act (CWA),
following the 2023 Supreme Court decision in Sackett v. EPA
(Sackett), 598 U.S. 651. The hearing will provide Members with
the opportunity to receive testimony from witnesses who have
experienced the regulatory impact of the conforming rule and
its implementation. Members will receive testimony from
witnesses representing the State of Alaska, the State of
Colorado, the American Farm Bureau Association, and the
National Association of Home Builders (NAHB).
II. ``WATERS OF THE UNITED STATES'' AND THE CLEAN WATER ACT
Congress enacted the 1972 amendments to the Federal Water
Pollution Control Act, commonly referred to as the Clean Water
Act (CWA), with the goal to ``restore and maintain the
chemical, physical, and biological integrity of the Nation's
waters.'' \1\ The CWA protects ``navigable waters,'' which is
defined in the CWA as the ``waters of the United States,
including the territorial seas.'' \2\
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\1\ CWA, Pub. L. No. 92-500, 86 Stat. 816.
\2\ Id. at Sec. 502(7).
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However, the CWA does not further define the term ``waters
of the United States'' (WOTUS). As such, the United States
Environmental Protection Agency (EPA) and the United States
Army Corps of Engineers (Corps) have attempted to define which
waters are subject to Federal regulation under the CWA. Since
the CWA grants authority to EPA and the Corps to implement the
Act, EPA and the Corps have promulgated several sets of rules
interpreting the agencies' jurisdiction over WOTUS and the
corresponding scope of CWA authority.
The definition of WOTUS governs the application of CWA
programs--including tribal and state water quality
certification programs, pollutant discharge permits, and oil
spill prevention and planning programs. For example, Section
303, which requires states to develop water quality standards
for their waters such as Total Maximum Daily Load (TMDL),
Section 311, which prohibits the discharge and mandates
reporting of oil and other hazardous substances into WOTUS, and
Section 401, which outlines state approval for Federal permits
that would affect a WOTUS, are all dependent on the definition
of WOTUS.\3\
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\3\ Id. at Sec. Sec. 303, 311, 401.
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In addition, the CWA prohibits the discharge of any
pollutant by any person into a WOTUS, unless in compliance with
one of the enumerated permitting provisions in the Act. The two
main permitting authorities in the CWA are Section 402 (the
National Pollutant Discharge Elimination System, or ``NPDES'')
for discharges of pollutants from point sources, and Section
404, for discharges of dredged or fill material.\4\ Both
Sections 402 and 404 govern discharges into ``navigable
waters,'' and thus are directly dependent on the definition of
WOTUS.
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\4\ Id. at Sec. Sec. 402(b) and 404.
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EPA runs its own NPDES permitting program, and 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.\5\ Nearly all states
have assumed administration of their own NPDES permitting
programs, with only three exceptions: Massachusetts, New
Hampshire, and New Mexico.\6\
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\5\ 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].
\6\ 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.\7\ 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.\8\
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\7\ CWA, supra note 1, Sec. 404(b); see also CRS Report RL30030,
supra note 5.
\8\ EPA, Permit Program under CWA Section 404, available at https:/
/www.epa.gov/cwa-404/permit-program-under-cwa-section-404.
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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.\9\ Currently, two states are approved to manage
their Section 404 program: Michigan and New Jersey.\10\ The
status of the approval of a state-managed program for the State
of Florida is under litigation.\11\
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\9\ 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.
\10\ Laura Gatz & Kate R. Bowers, Cong. Research Service (R46927),
Redefining Waters of the United States (WOTUS): Recent Developments,
(updated July 8, 2022) [hereinafter CRS Report R46927], available at
https://www.crs.gov/reports/pdf/R46927/R46927.pdf.
\11\ See EPA, State and Tribal Assumption of Section 404 of the
Clean Water Act, available at https://www.epa.gov/cwa404g/us-
interactive-map-state-and-tribal-assumption-under-cwa-section-404; see
also State of Florida, State 404 Program, available at https://
floridadep.gov/water/submerged-lands-environmental-resources-
coordination/content/state-404-program.
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The CWA also authorizes the Federal Government to levy
penalties upon those deemed to have violated its provisions.
Specifically, Section 309 of the CWA outlines the authority
given to bring civil and/or criminal punishment against those
who have violated the CWA.\12\ Civil and criminal penalties
vary based on the type of infringement.\13\ For example,
penalties for point source discharges into a WOTUS without, or
in violation of, a permit can be one year and/or $2,500-$25,000
per day for negligent violations, and three years and/or
$5,000-$50,000 per day.\14\
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\12\ CWA, supra note 1, Sec. 309, 33 U.S.C. Sec. 1319.
\13\ See id.; EPA, Criminal Provisions of Water Pollution,
available at https://www.epa.gov/enforcement/criminal-provisions-water-
pollution.
\14\ Id.
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III. PREVIOUS WOTUS RULES
The last three Presidential Administrations, through EPA
and the Corps, have each published in the Federal Register
regulatory changes to the definition of WOTUS.
In 2015, the Obama Administration published a rule, known
as the Clean Water Rule, which redefined WOTUS in the agencies'
regulations for the first time since the 1980s.\15\ The
regulatory changes to the definition of WOTUS incorporated in
the 2015 Clean Water Rule allowed the Corps and EPA to utilize
both the ``relatively permanent'' or ``significant nexus''
concepts, espoused in the 4-1-4 Supreme Court decision in
Rapanos v. United States (Rapanos).\16\
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\15\ Clean Water Rule: Definition of ``Waters of the United
States'' Final Rule, 80 Fed. Reg. 37054 (June 29, 2015).
\16\ See id.; Rapanos v. United States, 547 U.S. 715 (2006). These
concepts are discussed further below.
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Under the Trump Administration, EPA and the Corps rescinded
the 2015 Clean Water Rule, recodifying guidance from 2008 that
was in effect prior to the 2015 Rule.\17\ Then, in 2020, EPA
and the Corps published in the Federal Register another
definition of WOTUS in the Navigable Waters Protection
Rule.\18\ The Navigable Waters Protection Rule was structured
to focus the WOTUS definition primarily on relatively permanent
bodies of water that provide surface flow to navigable waters
or the territorial seas in a typical year, and moved away from
the ``significant nexus'' test.\19\
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\17\ See Exec. Order No. 13778, (Feb. 28, 2017), available at
https://www.govinfo.gov/content/pkg/DCPD-201700147/pdf/DCPD-
201700147.pdf; Definition of ``Waters of the United States''--
Recodification of Pre-Existing Rules, 84 Fed. Reg. 56626 (Oct. 22,
2019).
\18\ The Navigable Waters Protection Rule: Definition of ``Waters
of the United States,'' 85 Fed. Reg. 22250 (Apr. 21, 2020).
\19\ See CRS Report R46927, supra note 10.
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Shortly after taking office in January 2021, President
Biden signed an Executive Order revoking President Trump's
Executive Order, directing EPA and the Corps to revise and
rescind the Clean Water Rule.\20\
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\20\ Exec. Order No. 13990, (Jan. 20, 2021), available at https://
www.govinfo.gov/content/pkg/FR-2021-01-25/pdf/2021-01765.pdf.
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On December 30, 2022, EPA and the Corps released the
Revised Definition of the `Waters of the United States' Rule,
which went into effect on March 20, 2023.\21\ The 2022 WOTUS
definition was based largely upon the pre-2015 regulations,
while again authorizing CWA jurisdiction under either the
``relatively permanent waters'' or ``significant nexus'' test
concepts.\22\
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\21\ Revised definition of ``Waters of the United States'' Final
Rule, 88 Fed Reg. 3004 (Jan. 18, 2023).
\22\ Id.
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IV. SACKETT v. EPA
Since passage of the CWA, there has been a substantial
amount of litigation in the Federal courts on scope of CWA
jurisdiction, including numerous Supreme Court cases.
In 2006, the Supreme Court issued a 4-1-4 opinion in
Rapanos that did not produce a clear, legal standard on
determining jurisdiction under the CWA.\23\ The Rapanos
decision produced three distinct opinions on the appropriate
scope of Federal authorities under the CWA. Justice Scalia's
plurality opinion provided a ``relatively permanent/flowing
waters'' test with ``continuous surface connection.'' \24\
Writing alone, Justice Kennedy proposed a ``significant nexus''
test for WOTUS, concluding that a case-by-case basis for
determining navigable waters was appropriate.\25\ Justice
Stevens' dissenting opinion advocated for maintenance of
existing EPA and the Corps authority over waters and
wetlands.\26\
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\23\ Rapanos v. United States, 547 U.S. 715 (2006).
\24\ Id. at 739 and 742.
\25\ Id. at 782 (Kennedy, J., concurring).
\26\ See id. at 788 (Stevens, J., dissenting).
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In October 2022, the Court heard oral arguments in the
latest case surrounding the definition of WOTUS under the CWA
in Sackett. The petitioners in the Sackett case own a parcel of
land in Idaho which sits across the street from an area of
wetlands that drains into an unnamed tributary of a creek,
which in turn flows into Priest Lake.\27\ The Sacketts' efforts
to build on their parcel of land, around thirty feet from the
area of wetlands, had been the subject of a decades-long
dispute with EPA and the Corps regarding CWA jurisdiction and
regulatory process.\28\ The Ninth Circuit Court, using the
``significant nexus'' test, had upheld EPA's decision that the
Sackett property was subject to Federal jurisdiction under the
CWA.\29\
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\27\ Kate R. Bowers, Cong. Research Service Legal Sidebar
(LSB10707), Supreme Court Revisits Scope of ``Waters of the United
States'' (WOTUS) Under the Clean Water Act, (Mar. 11, 2022), available
at https://www.crs.gov/reports/pdf/LSB10707/LSB10707.pdf.
\28\ Id.
\29\ Sackett v. EPA, 8 F. 4th 1075, 1091-1093 (9th Cir. 2021).
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In May 2023, the Court decided unanimously that the CWA did
not apply to the Sackett property but differed on the reasoning
5-4.\30\ The majority in Sackett rejected the ``significant
nexus'' test penned by Justice Kennedy in Rapanos, instead
ruling in favor of the ``relatively permanent'' test espoused
in the Rapanos plurality opinion.\31\ While concurring in
judgment, four justices disagreed with the majority's holding
that wetlands are jurisdictional under the CWA only if there is
a continuous surface connection to other covered jurisdictional
waters.\32\
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\30\ Sackett v. EPA, 598 U.S. 651 (2023).
\31\ Kate R. Bowers, Cong. Research Service Legal Sidebar
(LSB10981), Supreme Court Narrows Federal Jurisdiction Under Clean
Water Act, (June 21, 2023), available at https://www.crs.gov/Reports/
LSB10981.
\32\ Id.
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V. CONFORMING RULE AND IMPLEMENTATION
While the Biden Administration's original rule, nor any
other specific prior regulation was specifically brought before
the Court, the majority opinion in Sackett rejected key
jurisdictional interpretations such as ``significant nexus''
reflected in the Biden Administration's original rule.\33\
Immediately following the Sackett decision, the Corps paused
processing of approved jurisdictional determinations.\34\
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\33\ See id.
\34\ See E.A. Crunden, et. al., Wetlands approvals paused after
Supreme Court decision, E&E News, (June 2, 2023), available at https://
subscriber.politicopro.com/article/eenews/2023/06/01/wetlands-
approvals-paused-after-supreme-court-decision-00099717; see also,
Review of Fiscal Year 2024 Budget Request: Agency Perspectives (Part I)
Hearing Before the Subcomm. on Water Resources and Environ. of the H.
Comm. on Transp. and Infrastructure, 118th Cong., (June 22, 2023)
(Statement of Hon. Michael L. Connor, in response to questioning by
David Rouzer, Chairman, Subcomm. on Water Resources and Environ. of the
H. Comm. on Transp. and Infrastructure).
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On August 29, 2023, EPA and the Corps issued a final rule
titled ``Revised Definition of `Waters of the United States';
Conforming,'' amending the initial Biden Administration rule
post-Sackett.\35\ Due to prior ongoing litigation over the
initial January 2023 Biden Administration rule, the conforming
rule went into place on September 8, 2023, in 23 states, the
District of Columbia, and United States territories.\36\ In the
other 27 states, EPA and the Corps are regulating WOTUS
consistent with the pre-2015 regulatory regime.\37\
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\35\ Revised Definition of ``Waters of the United States'';
Conforming, 88 Fed. Reg. 61964 (Sept. 8, 2023).
\36\ Id.; see also EPA, Definition of ``Waters of the United
States'': Rule Status and Litigation Update, available at https://
www.epa.gov/wotus/definition-waters-united-states-rule-status-and-
litigation-update.
\37\ Id.
LFigure 1 shows the operative definition of WOTUS currently in effect
in each state, with green representing states where the amended 2023
rule is in effect and purple representing where the pre-2015 regime is
in effect.\38\
\\
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\38\ Id.
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On September 27, 2023, EPA and the Corps issued a joint
coordination memorandum outlining how EPA and the Corps would
coordinate on jurisdictional determinations, which was to be in
effect for nine months.\39\ On June 25, 2024, the memorandum
was extended an additional nine months.\40\ EPA and the Corps
each maintain online resources with additional implementation
materials.\41\
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\39\ EPA and Corps, Joint Coordination Memorandum to the Field
between the U.S. Department of the Army, U.S. Army Corps of Engineers
(Corps) and the U.S. Environmental Protection Agency (EPA), (Sept. 27,
2023), available at https://www.epa.gov/system/files/documents/2023-10/
2023-joint-coordination-memo-amended-2023-rule_508c.pdf
\40\ EPA and Corps, Extension of Joint Coordination Memoranda to
the Field between the U.S. Department of the Army, U.S. Army Corps of
Engineers and the U.S. Environmental Protection Agency (EPA), (June 25,
2024), available at https://www.epa.gov/system/files/documents/2023-10/
2023-joint-coordination-memo-amended-2023-rule_508c.pdf.
\41\ See Corps, Regulatory Program and Permits Juris Info,
available at https://www.usace.army.mil/Missions/Civil-Works/
Regulatory-Program-and-Permits/juris_info/; see also EPA, Current
Implementation of Waters of the United States, available at https://
www.epa.gov/wotus/current-implementation-waters-united-states.
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Some states and stakeholders have raised concerns with the
pace of implementation of the conforming WOTUS rule, and
whether EPA and the Corps are in compliance with the ruling in
Sackett.\42\ Other stakeholders have expressed dissatisfaction
with the Sackett ruling and called for states and the Biden
Administration to evaluate other authorities to address the
effects of Sackett.\43\
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\42\ See e.g. Sam Hess, States, Industry Launch Broad Legal Attack
On EPA's Amended WOTUS Rule, InsideEPA, (Feb. 6, 2024), available at
https://insideepa.com/daily-news/states-industry-launch-broad-legal-
attack-epa-s-amended-wotus-rule.
\43\ See e.g. Sam Hess, Groups Urge Officials To Expand Wetlands
Protections In Wake of Sackett, InsideEPA, (June 4, 2024), available at
https://insideepa.com/daily-news/groups-urge-officials-expand-wetlands-
protections-wake-sackett.
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VI. WITNESSES
LEmma Pokon, Commissioner, Alaska Department of
Environmental Conservation
LNicole Rowan, Director, Water Quality Control
Division, Colorado Department of Public Health and Environment
LCourtney Briggs, Chairman, Waters Advocacy
Coalition, on behalf of the American Farm Bureau Federation
LVincent E. Messerly, P.E., President and CEO,
Stream and Wetlands Foundation, on behalf of the National
Association of Home Builders
WATERS OF THE UNITED STATES IMPLEMENTATION POST-SACKETT DECISION:
EXPERIENCES AND PERSPECTIVES
----------
WEDNESDAY, SEPTEMBER 11, 2024
House of Representatives,
Subcommittee on Water Resources and Environment,
Committee on Transportation and Infrastructure,
Washington, DC.
The subcommittee met, pursuant to call, at 10 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.
Before we go further, I think it would be appropriate to
take a quick moment of silence in memory of all those who
passed and sacrificed on 9/11. If you will join me in a moment
of silence.
[Moment of silence observed.]
Mr. Rouzer. 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 it to [email protected].
Again, that is [email protected].
I now recognize myself for the purposes of an opening
statement for 5 minutes.
OPENING STATEMENT OF HON. DAVID ROUZER OF NORTH CAROLINA,
CHAIRMAN, SUBCOMMITTEE ON WATER RESOURCES AND ENVIRONMENT
Mr. Rouzer. For more than half a century, the Clean Water
Act has worked to improve the quality of our Nation's
waterways. In our continued pursuit to protect and improve the
quality of our Nation's waters, it is imperative that the
regulatory framework under the Clean Water Act works as
Congress intended it to work, allowing the demands of the 21st
century to be met.
To do so, we must have environmental protection and
economic development--this critical balance that protects the
environment without unnecessarily hampering our economy and
private property rights. To achieve this, we must also balance
the role of the Federal Government with that of the States and
municipalities. The Clean Water Act was never envisioned for
the Federal Government to have control over every ditch and mud
puddle. It left room for States to protect their waters as they
best see fit.
So, consider this as well: Our competitors in China, as
well as elsewhere in the world, they don't care about
regulations or environmental permitting. When they want to
build it, they just do it, with little, if any, regard to the
environment.
Now, while we do not want to adopt their mentality--nor
would we--we should not put meaningless delays on critical
infrastructure projects like manufacturing, housing, or very
critical energy projects.
As I have stated many times before, regulations should be
simple and easy to follow. The benefit of that is, they should
carry out the intent of the law in a clear and transparent
manner, making them easy to enforce. There should be no
subjectivity or wiggle room for any bureaucrat to substitute
their own biases or interpretations.
But, unfortunately, that has certainly not been the case
with the Clean Water Act.
Now, there is no greater example of bureaucratic overreach
than the nightmare of complying with and understanding the
definition of a water of the United States, or WOTUS, as we
call it. This definition determines the scope of jurisdictional
waters under the Clean Water Act, affecting water-quality
certification programs, pollutant discharge permits, and
oilspill prevention.
Now, a good example of all this is in North Carolina.
Pharmaceutical company Novo Nordisk, the worldwide leader in
treating and preventing a wide range of diseases, including
diabetes, announced a $4 billion investment for a site
expansion, bringing more than 1,000 jobs to the State. In
October, they requested a jurisdictional determination, or JD,
as we call it, which never came. They were told to apply for a
permit and to modify it once a JD was issued. They have since
applied for a permit without determination. However, the permit
review process can take more than 1 year.
Novo Nordisk cannot conduct onsite avoidance and
minimization analysis before they know what parcel of property
must be avoided. Nor can they conduct an offsite alternatives
analysis without a clear concept of how their site works
against other sites that may or may not have similar issues.
And this is just one example of many instances across the
country where economic investment and job creation--and, in
this case, public health as well--are all stalled due to this
vague process.
The Supreme Court's ruling in Sackett v. EPA last year
provided a decisive win for America's farmers, small
businesses, and property owners. Yet, despite the Court's
clarity, there remains a distinct incongruence between the
ruling and the latest definition of a WOTUS from this
administration, which has led to a new round of legal
challenges and additional confusion.
When Assistant Secretary of the Army for Civil Works
Michael Connor testified before the subcommittee last December,
he reported a backlog of more than 4,000 jurisdictional
determinations that need to be made. While the administration
claims some progress has been made in approving these, the
inconsistent and piecemeal approach it is taking in
implementing its WOTUS rule is causing serious delays on a
variety of different projects around the Nation.
Sackett struck down the ``significant nexus'' test and held
that a WOTUS must have a continuous surface connection to
traditional navigable waters. That ruling was over 1 year ago,
and we just passed the 1-year mark since the administration
issued its revised rule.
Farmers, homebuilders, businesses, manufacturers, and many
other hard-working Americans rely on the Corps and EPA for
predictable, workable, and stable WOTUS regulations. The
administration has not yet delivered.
So, in summation, the administration's implementation is
not in accordance with the Sackett ruling generally, nor is it
consistent project to project where JDs have been issued. So, I
remain concerned about the lack of transparency and lack of
consistency with which this revised definition has been
implemented.
We are all still waiting for clear and consistent guidance
on which everyone can rely. The decision to approach WOTUS on a
site-specific basis, without clear training and universal
application, has served only to muddy the waters--no pun
intended--of a very clear and straightforward Supreme Court
ruling.
So, I look forward to hearing from our witnesses today
about their experiences and challenges with WOTUS
implementation since the Sackett decision and what
recommendations they have for us in Congress so we can work to
provide surety to Americans who rely on clear implementation of
this important rule.
[Mr. Rouzer's prepared statement follows:]
Prepared Statement of Hon. David Rouzer, a Representative in Congress
from the State of North Carolina, and Chairman, Subcommittee on Water
Resources and Environment
For more than half a century, the Clean Water Act has worked to
improve the quality of our nation's waterways. In our continued pursuit
to protect and improve the quality of our nation's waters, it is
imperative that the regulatory framework under the Clean Water Act
works as Congress intended it to work, allowing the demands of the 21st
century to be met.
To do so we must have environmental protection and economic
development--this critical balance that protects the environment
without unnecessarily hampering our economy and private property
rights. To achieve this, we must also balance the role of the federal
government with that of the states and municipalities. The Clean Water
Act was never envisioned for the federal government to have control
over every ditch and mud puddle, and left room for states to protect
their waters as they best see fit.
Our competitors in China, as well as elsewhere in the world, do not
care about regulations or environmental permitting. When they want to
build, they just do it, with little if any regard to the environment.
While we do not want to adopt their mentality--nor would we--we should
not put meaningless delays on critical infrastructure projects like
manufacturing, housing, or energy projects.
As I have stated many times before, regulations should be simple
and easy to follow. They should carry out the intent of the law in a
clear and transparent manner, making them easy to enforce. There should
be no subjectivity or wiggle room for any bureaucrat to substitute
their own biases or interpretations. Unfortunately, that's not the case
with the Clean Water Act.
There is no greater example of bureaucratic overreach than the
nightmare of complying with and understanding the definition of a
``water of the United States'' or ``WOTUS.'' This definition determines
the scope of jurisdictional waters under the Clean Water Act, affecting
water quality certification programs, pollutant discharge permits, and
oil spill prevention.
In North Carolina, pharmaceutical company Novo Nordisk, a leader in
treating and preventing a wide range of diseases including diabetes,
announced a four-billion-dollar investment for a site expansion,
bringing over one thousand jobs to the state. In October, they
requested a jurisdictional determination, or JD, which never came. They
were told to apply for a permit and to modify it once a JD was issued.
They have since applied for a permit without determination. However,
the permit review process can take over a year.
Novo Nordisk cannot conduct on-site avoidance and minimization
analysis before they know what parcel of property must be avoided. Nor
can they conduct an off-site alternatives analysis without a clear
concept of how their site works against other sites that may or may not
have similar issues. This is just one example of many instances across
the country where economic investment and job creation--and in this
case, public health as well--are stalled due to this vague process.
The Supreme Court's ruling in Sackett vs. EPA last year provided a
decisive win for America's farmers, small businesses, and property
owners. Yet, despite the Court's clarity, there remains a distinct
incongruence between the ruling and the latest definition of a WOTUS
from this administration, which has led to a new round of legal
challenges and additional confusion.
When Assistant Secretary of the Army for Civil Works Michael Connor
testified before the Subcommittee last December, he reported a backlog
of more than 4,000 jurisdictional determinations that need to be made.
While the Administration claims some progress has been made in
approving these, the inconsistent and piecemeal approach it is taking
in implementing its WOTUS rule is causing serious delays on a variety
of different projects across the nation.
Sackett struck down the ``significant nexus'' test and held that a
WOTUS must have a continuous surface connection to traditional
navigable waters. That ruling was over a year ago, and we just passed
the one year mark since the Administration issued its revised rule.
Farmers, home builders, businesses, manufacturers, and many other hard-
working Americans rely on the Corps and EPA for predictable, workable,
and stable WOTUS regulations. The Administration has not yet delivered.
In summation, the Administration's implementation is not in
accordance with the Sackett ruling generally; nor is it consistent
project to project where JDs have been issued. I remain concerned about
the lack of transparency and lack of consistency with which this
revised definition has been implemented. We are all still waiting for
clear and consistent guidance on which everyone can rely. The decision
to approach WOTUS on a site-specific basis without clear training and
universal application has served only to muddy the waters of a very
clear and straightforward Supreme Court ruling.
I look forward to hearing from our witnesses today about their
experiences and challenges with WOTUS implementation since the Sackett
decision and what recommendations they have for us in Congress so we
can work to provide surety to Americans who rely on clear
implementation of WOTUS.
Mr. Rouzer. I now recognize 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, for yielding that
time to me.
For the past 25\1/2\ years, I have made protection and
preservation of water a primary focus of my time in Congress.
In the arid West, where annual droughts have become an
unfortunate consequence of a warming climate, I have worked to
make our communities more resilient to climate change, such as
ensuring my communities are prepared for their current and
future water needs. I have worked with local officials to
promote the conservation, recycling, and reuse of every drop of
water available.
Knowing of these ongoing challenges that may soon face
every community in the United States, I grow frustrated with
the heated and often misguided rhetoric on the scope of waters
protected by the Clean Water Act. In my view, we get lost on
questions of who is best suited to protect our water resources,
rather than thinking about the importance of rivers, streams,
lakes, and wetlands for current and future needs.
Mr. Chairman, clean water was not always a partisan issue,
and no issue has more support among American families than the
protection of the Nation's waters. Yet, in recent years, this
issue of comprehensive Clean Water Act protections has become
so politicized that it has become increasingly difficult to
find any commonalities.
For this, I cite the example, this issue is prominently
highlighted in the extreme ``Project 2025'' manifesto. It has
been the focus of two failed Congressional Review Act efforts
to overturn vital clean water protections. And, recently,
decades-old water protections have fallen to a Supreme Court
that, time and again, substitutes its own conservative
philosophies for the established legal precedent or clear
statements of congressional intent.
In the aftermath, we are left with a Nation less prepared
to protect its precious water resources and less capable of
ensuring the long-term health and resiliency of our
communities, our neighbors, and our future generations.
History has shown that the current State-by-State approach
of protecting rivers, streams, and wetlands is likely to fail,
as it did before the enactment of the Clean Water Act.
Without minimum levels of protection, States will be
negatively impacted by pollution from upstream sources if
neighboring States choose not to put the same priority on
protecting water resources.
Without minimum levels of protection, farmers, businesses,
and communities may no longer rely on sufficient, safe, and
sustainable supplies of water to meet our quality-of-life
needs, our economic and agricultural needs, and our day-to-day
survival, especially in arid regions of the West.
Without minimum levels of protection, American families may
be forced to pay more for safe and reliable resources of water
for their homes--if such resources even remain available.
Without minimum standards of protection, businesses will
face different requirements and standards in every State or
community, likely increasing the complexity and cost of doing
business, which will, again, result in higher prices for
American families.
Mr. Chairman, in my remaining time in Congress, I remain
committed to protecting clean water for more people, not less.
I believe the Supreme Court purposely chose to substitute its
own philosophy over decades-old, legally grounded efforts to
protect water quality.
That is why I joined with Ranking Member Larsen,
Congressman Beyer, and Congresswoman Stansbury in introducing
the Clean Water Act of 2023. I believe this bill will restore
the minimum levels of protections struck down by the
conservative Court and can put back into place the predictable
Federal-State partnership which protected our rivers, streams,
and wetlands for over five decades, all while providing
predictability and certainty to American businesses.
To me, the answer is clear: We should recognize the
familiarity and workability of the historic Clean Water Act and
get on with the preservation of the health of our economy as
well as that of our communities, of our environment, and our
water-dependent futures.
Mr. Chairman, I yield back the balance of my time.
[Mrs. Napolitano's prepared statement follows:]
Prepared Statement of Hon. Grace F. Napolitano, a Representative in
Congress from the State of California, and Ranking Member, Subcommittee
on Water Resources and Environment
Thank you, Mr. Chairman, for yielding me this time.
For the past 26 years, I have made the protection and preservation
of water a primary focus of my time in Congress.
In the arid west, where annual droughts have become an unfortunate
consequence of a warming planet, I have worked to make our communities
more resilient to climate change, such as ensuring my communities are
prepared for their current and future water needs.
I have worked with local officials to promote the conservation,
recycling, and reuse of every drop of water available.
Knowing of these ongoing water challenges that may soon face every
community, I grow frustrated with the heated and often-misguided
rhetoric on the scope of waters protected by the Clean Water Act.
In my view, we get lost on questions of who is best suited to
protect our water resources, rather than talking about the importance
of rivers, streams, lakes and wetlands for current and future needs.
Mr. Chairman, clean water was not always a partisan issue, and no
issue has more support among American families than the protection of
our nation's waters.
Yet, in recent years, the issue of comprehensive Clean Water Act
protections has become so politicized that it has become increasingly
difficult to find any commonalities.
For example, this issue is prominently highlighted in the extreme
Project 2025 manifesto.
It has been the focus of two failed Congressional Review Act
efforts to overturn vital clean water protections.
And, recently, decades-old water protections have fallen to a
Supreme Court that, time-and-again, substitutes its own conservative
philosophies for established legal precedent or clear statements of
Congressional intent.
In the aftermath, we are left with a nation less prepared to
protect its precious water resources and less capable of ensuring the
long-term health and resiliency of our communities, our neighbors and
future generations.
Mr. Chairman, history has shown that the current, state-by-state
approach to protecting rivers, streams and wetlands is likely to fail
as it did before enactment of the Clean Water Act.
Without minimum levels of protection, states will be negatively
impacted by pollution from upstream sources if neighboring states
choose not to put the same priority on protecting water resources.
Without minimum levels of protection, farmers, businesses and
communities may no longer rely on sufficient, safe and sustainable
supplies of water to meet our quality-of-life needs, our economic and
agricultural needs and our day-to-day survival, especially in the arid
regions of the country.
Without minimum levels of protection, American families may be
forced to pay more for safe and reliable sources of drinking water for
their homes, if such sources even remain available.
Without minimum standards of protection, businesses will face
differing requirements and standards in every state or community,
likely increasing the complexity and cost of doing business--which
will, again, result in higher prices for American families.
Mr. Chairman, in my remaining time Congress, I remain committed to
protecting clean water for more people, not less.
I believe the Supreme Court purposefully chose to substitute its
own philosophy over decades-old, legally grounded efforts to protect
water quality.
That is why I joined with Ranking Member Larsen, Congressman Beyer,
and Congresswoman Stansbury, in introducing the Clean Water Act of
2023.
I believe this bill will restore the minimum levels of protections
struck down by the conservative Supreme Court and put back into place
the successful and predictable federal-state partnership which
protected our rivers, streams, and wetlands for over five decades--all
while providing predictability and certainty to American businesses.
To me, the answer is clear. We should recognize the familiarity and
workability of the historic Clean Water Act and get on with the
preservation of the health of our economy as well as our communities,
our environment and our water-dependent futures.
I yield back the balance of my time.
Mr. Rouzer. The gentlelady yields back.
I now recognize Ranking Member Larsen for up to 5 minutes.
OPENING STATEMENT OF HON. RICK LARSEN OF WASHINGTON, RANKING
MEMBER, COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
Mr. Larsen of Washington. Thank you, Mr. Chair and Ranking
Member Napolitano, for this hearing and update on the waters of
the U.S. and the Clean Water Act.
My home State of Washington is defined by its clean water,
from Puget Sound to the hundreds of lakes and thousands of
miles of rivers and streams. Washingtonians know that
protecting these rivers, streams, and wetlands takes work and
that the health of our water bodies are intertwined.
Our waters and water-related economy depend on the historic
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
Washington State; it is true across the country.
When Congress passed the Clean Water Act over 50 years ago,
Members recognized the effectiveness and importance of
comprehensive pollution-prevention measures--stopping pollution
before it happens rather than simply cleaning it up. The Clean
Water Act was enacted on an overwhelming and bipartisan basis.
Before this law, rivers and lakes served as little more
than open sewers. Lake Erie was pronounced ``dead,'' and Ohio's
Cuyahoga River literally caught on fire.
Thanks to the Clean Water Act, the Cascade River in my
district was recently designated as an Outstanding Resource
Water by the State of Washington, which now protects the river
from any future activities or development that would degrade
its water quality.
In passing the Clean Water Act, Congress specifically noted
that a State-by-State, do-it-alone approach was, quote,
``inadequate in every vital aspect,'' end quote, and left
waters severely polluted and expensive to restore.
For decades, then, Republicans and Democrats shared these
bipartisan principles to defend clean water, maintain a strong
Federal-State partnership to protect 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.
After the Sackett decision, the robust Federal protections
for our Nation's waters have been eliminated for more than 50
percent of wetlands and up to 70 percent of streams.
History has shown that a lack of strong Federal water-
quality protections makes it difficult and expensive for States
to protect their waters if neighboring States adopt a lesser
standard. States are now faced with a decision on how to handle
pollution of the countless nonnavigable streams, lakes, and
wetlands once protected by the Clean Water Act.
Some States will meet this challenge by establishing new
State-level water-quality standards for unprotected wetlands
and streams, as the State of Colorado has done. Other States
will choose to do nothing, or worse, pull back on State-level
protections, like the State of North Carolina, leaving critical
waters completely unprotected.
Without uniform national protections, downstream States
will be negatively impacted by pollution from upstream sources
if neighboring States choose not to pass new protections.
Last Congress, though, we did pass the Bipartisan
Infrastructure Law, affirming our commitment to improving
water-quality infrastructure. The BIL included significant
investments in water infrastructure, providing $13.8 billion in
Federal dollars for upgrading 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. Such a large Federal investment was a downpayment to
address the backlog of water infrastructure needs across the
country.
The Sackett decision reduces the effectiveness of these
investments and reduces the Federal role in the successful
partnership that has been the Clean Water Act. If we are to
maintain the same historic protections, States will have to
step up and spend more resources protecting water quality.
Unfortunately, States will be doing so from scratch,
without the decades of experience from the EPA and the Army
Corps of Engineers. In this post-Sackett world, we must find
ways to leverage Federal experience in assisting States that
are stepping up to maintain water-quality protections.
But Congress can do its job as well and legislate a
solution. Passing the Clean Water Act of 2023, a bill I
introduced in partnership with Ranking Member Napolitano, would
restore the historic, bipartisan protections that the Sackett
decision removed.
So, I want to 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 home state of Washington is defined by its clean water, from
Puget Sound to the hundreds of lakes and thousands of miles of rivers
and streams.
Washingtonians know that protecting these rivers, streams and
wetlands takes work, and that the health of our water bodies are
intertwined.
Our waters and our water-related economy depend on the historic
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 Washington state, and it is true
across the nation.
When Congress passed the Clean Water Act over 50 years ago, Members
recognized the effectiveness and importance of comprehensive pollution
prevention measures--stopping pollution before it happens rather than
simply cleaning it up.
The Clean Water Act was enacted on an overwhelming and bipartisan
basis. Before this law, rivers and lakes served as little more than
open sewers--Lake Erie was pronounced ``dead,'' and Ohio's Cuyahoga
River literally caught on fire.
Thanks to the Clean Water Act, the Cascade River in my district was
recently designated as an Outstanding Resource Water by the State of
Washington, which now protects the river from any future activities or
development that would degrade water quality.
In passing the CWA, Congress specifically noted that a state-by-
state, do-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 defend 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.
After the Sackett decision, the robust federal protections for our
nation's waters have been eliminated for more than 50 percent of
wetlands and up to 70 percent of streams.
History has shown that a lack of strong federal water quality
protections makes it difficult and expensive for states to protect
their waters if neighboring states adopt a lesser standard.
States are now faced with a decision on how to handle pollution of
the countless, non-navigable streams, lakes and wetlands once protected
by the Clean Water Act.
Some states will meet this challenge by establishing new state-
level water quality standards for unprotected wetlands and streams, as
the State of Colorado has done.
Other states will choose to do nothing, or worse, pull back on
state-level protections, like the State of North Carolina, leaving
critical waters completely unprotected.
Without uniform national protections, downstream states will be
negatively impacted by pollution from upstream sources if neighboring
states choose not to pass new protections.
Last Congress, we passed the Bipartisan Infrastructure Law,
affirming our commitment to improving infrastructure. The BIL included
significant investments in water infrastructure--providing $13.8
billion in federal dollars for upgrading 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.
Such a large federal investment was a downpayment to address the
backlog of water infrastructure needs across the country.
The Sackett decision reduces the effectiveness of these investments
and reduces the federal role in the successful partnership that has
been the Clean Water Act. If we are to maintain the same historic
protections, states will have to step up and spend more resources on
protecting water quality.
Unfortunately, states will be doing so from scratch, without the
decades of experience of EPA and the Army Corps of Engineers.
In this post-Sackett world, we must find ways to leverage federal
experience in assisting states that are stepping up to maintain water
quality protections.
Congress can do its job, as well, and legislate a solution. Passing
the Clean Water Act of 2023, a bill I introduced in partnership with
Ranking Member Napolitano, would restore the historic, bipartisan
protections that the Sackett decision removed.
Thank you to the witnesses for joining us today, and I look forward
to your testimony.
Mr. Rouzer. The gentleman yields back.
I ask unanimous consent to enter into the record a series
of letters regarding WOTUS implementation from the Associated
Builders and Contractors, dated September 11, 2024; Idaho
Mining Association, dated September 9, 2024; Associated General
Contractors of America, dated September 9, 2024; National Parks
Conservation Association, September 10, 2024; National Stone,
Sand, and Gravel Association, dated September 11, 2024;
National Mining Association, dated September 11, 2024; State of
Alaska Department of Transportation and Public Facilities,
dated September 6, 2024; and, finally, from 24 State attorneys
general, led by West Virginia, dated September 6, 2024.
Without objection, so ordered.
[Hon. Rouzer's submissions for the record are on pages 59-
72.]
Mr. Rouzer. I would now like to welcome our witnesses and
thank them for being here today.
First, we have Emma Pokon--or is it ``Pokon''?
Ms. Pokon. Either is just fine.
Mr. Rouzer. Well, which do you prefer, ma'am?
Ms. Pokon. I think I say it ``Pokon.''
Mr. Rouzer. ``Pokon''--commissioner of the Alaska
Department of Environmental Conservation; Nicole Rowan,
director of the Water Quality Control Division at the Colorado
Department of Public Health and Environment; Ms. Courtney
Briggs, chairman of the Waters Advocacy Coalition, on behalf of
the American Farm Bureau Federation; and Vince Messerly,
president of the Stream and Wetlands Foundation, on behalf of
the National Association of Home Builders.
So, briefly, I would like to take a moment to explain our
lighting system to our witnesses. Fairly self-explanatory.
Green means go. Yellow means you have about 45 seconds to 1
minute left. And red means, of course, conclude your remarks as
quickly as you can.
So, with that--oh, I also ask unanimous consent that the
witnesses' full statements be included in the record.
Without objection, so ordered.
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.
As your written testimony has been made part of the record,
the subcommittee asks you to limit your oral remarks to 5
minutes.
And, with that, Commissioner Pokon, you are recognized for
5 minutes.
TESTIMONY OF EMMA POKON, COMMISSIONER, ALASKA DEPARTMENT OF
ENVIRONMENTAL CONSERVATION; NICOLE ROWAN, DIRECTOR, WATER
QUALITY CONTROL DIVISION, COLORADO DEPARTMENT OF PUBLIC HEALTH
AND ENVIRONMENT; COURTNEY BRIGGS, CHAIRMAN, WATERS ADVOCACY
COALITION, ON BEHALF OF THE AMERICAN FARM BUREAU FEDERATION;
AND VINCENT E. MESSERLY, PRESIDENT, STREAM AND WETLANDS
FOUNDATION, ON BEHALF OF THE NATIONAL ASSOCIATION OF HOME
BUILDERS
TESTIMONY OF EMMA POKON, COMMISSIONER, ALASKA DEPARTMENT OF
ENVIRONMENTAL CONSERVATION
Ms. Pokon. Thank you, Chairman Rouzer, Ranking Member
Napolitano, Ranking Member Larsen, and members of the
subcommittee. I appreciate the opportunity to testify today.
My name is Emma Pokon. I serve as the commissioner of the
Alaska Department of Environmental Conservation.
To start today, I want to emphasize the importance of this
topic to the State of Alaska. Our State has 900,000 miles of
navigable rivers and streams, 22,000 square miles of lakes,
27,000 miles of coastline, and more wetlands than every other
State in the Union combined. At about 130 million acres, it is
estimated around 63 percent of the wetlands in the Nation. And
all of that is before you get to glaciers and groundwater.
If you want to build a home, a road, a mine, or really
anything in the State, you will likely impact a water of some
sort. And where there is an impact to a water body, Alaska DEC
is going to be working to ensure that impact doesn't compromise
the water-quality standards we have set to protect human health
and the environment.
Under the Federal Clean Water Act, Alaska DEC implements
the section 402 discharge permitting program, evaluates section
404 dredge and fill permits for section 401 certification, and
assesses water quality throughout the State to ensure water
bodies that fail to meet State water-quality standards have
plans developed to address that impairment.
Importantly, I also have broad authority under State
statute to establish and protect water-purity standards. If you
want to discharge to water in the State of Alaska, you need
authorization from my team regardless of whether it is going
into a traditional navigable water body, a tributary, an
adjacent wetland, an isolated surface water, or groundwater.
In fact, in all 50 States, State agencies work diligently
to do their part to protect waters in their jurisdictions. Many
of these States, Alaska among them, apply the same water-
quality standards to all waters within their boundaries.
You can see, then, a lack of Federal regulation does not
necessarily mean no regulation, no Government oversight at all.
If EPA doesn't control an activity affecting water, State law
and policymakers can make the judgment call about what level of
protection is appropriate for their residents.
And, frankly, we are better suited to make those judgment
calls. We have better visibility on the totality of
circumstances for our residents. We are also more accessible to
our residents, so there are better opportunities for the
feedback loops that make democracy work.
But the Federal agencies do seem reluctant to trust States.
Nationally, more than 1 year after Sackett was decided and the
agencies published a revised rule, EPA and the Corps have still
failed to address the ``indistinguishable'' concept and the
vagueness concerns articulated by the Court.
Instead, we have seen worrying ``Chicken Little'' rhetoric
from the administration. They have characterized the decision
as a terrible threat to water. The White House itself has gone
as far as declaring that the Court decided the case
incorrectly, essentially challenging fundamental constitutional
checks and balances.
Rather than developing a standard that can be understood
and implemented by the regulated community and State partners,
the agencies appear intent on leveraging uncertainty and
threats of heavy civil and criminal liability to effectively
maintain sweeping control across the country.
If major elements of the Supreme Court guidance go
unaddressed, we can anticipate continuing conflict and pendulum
swings in implementation. That is not good for anyone.
Without stability, States don't have certainty around what
resources to consider committing to new or existing programs
that regulate State-only waters. And the public we serve will
continue to either go through unnecessary and expensive
permitting exercises, getting approvals from the incorrect
authority, or, as the Court feared, choosing to forgo
productive activities on their own lands entirely.
In closing, I would first remind everyone that States
exist, we are here, and we are ready to do our jobs to protect
State waters at the level deemed appropriate by our elected
legislatures and chief executives.
And, second, I would posit that the field of water-quality
regulation would be best served by accepting the totality of
the guidance provided by the United States Supreme Court and
working with States to achieve our common objectives of a
predictable, respectful, and rule-of-law-driven regulatory
framework.
Thank you.
[Ms. Pokon's prepared statement follows:]
Prepared Statement of Emma Pokon, Commissioner, Alaska Department of
Environmental Conservation
Dear Chairman Graves, Chairman Rouzer, Ranking Member Larsen, and
Ranking Member Napolitano:
Thank you for the invitation to provide testimony on the
implementation of the Clean Water Act, specifically the scope of
statute as defined by the term ``Waters of the United States'' (WOTUS),
following the United States Supreme Court decision in Sackett.
This topic is important to the State of Alaska. We have roughly
900,000 miles of navigable rivers and streams; 22,000 square miles of
lakes; 27,000 miles of coastline; and, at about 130 million acres, more
wetlands than every other state in the union combined. And all of that
is before considering glaciers and groundwater. Anyone looking to build
a home, a road, or a mine in the state will likely impact a water of
some sort.
Alaska's Department of Environmental Conservation (DEC) regulates
pollution across media--from soil contamination to air emissions to
water discharges. Under the federal Clean Water Act, DEC implements the
Section 402 discharge permitting program, evaluates Section 404 dredge
and fill permits for Section 401 certification, and assesses water
quality throughout the state to ensure water bodies that fail to meet
state water quality standards have plans developed to address that
impairment.
Importantly, DEC also possesses broad authority under state statute
to establish and protect water purity standards. Anyone looking to
discharge wastewater in the state of Alaska needs authorization from
DEC--regardless of whether the discharge goes to a traditional
navigable water body, a tributary, an adjacent wetland, an isolated
surface water, or groundwater. In fact, in all 50 states, state
agencies work diligently to do their part to protect waters in their
jurisdictions. Many of these states, Alaska among them, generally apply
the same water quality standards to all waters within their boundaries
regardless of whether they are under federal jurisdiction.
Thus, a reduced scope of federal authority does not necessarily
mean activity will be free of regulatory oversight. State policymakers
can make judgment calls about what level of protection is appropriate
for their residents. And states are often better situated to make those
judgment calls. State officials have more complete visibility on
circumstances for residents, are more accessible, and may have more
nuanced appreciation for unique ecosystem issues and concerns.
To illustrate, many factors make Alaska's circumstances unique
compared to other states and regions of the country. There's the sheer
geographic size and volume of water bodies and wetlands. And, as a
younger state, Alaska remains largely undeveloped in terms of
infrastructure and resource extraction. Our state is also in the
enviable position of having had landscape level planning to establish
state and federal conservation units that will remain undeveloped even
as other resource rich areas--often on federal, State, or Alaska Native
Corporation owned lands--could progress to production. In this context,
Alaskan lawmakers and elected officials might make different judgment
calls than the federal government or more industrialized and developed
states.
But federal agencies are reluctant to trust states; instead, they
continue to grope for complete authority over all waters. Nationally,
more than a year after Sackett was decided and the agencies published a
revised rule, EPA and the Corps have still failed to address the
``indistinguishable'' concept and the vagueness concerns articulated by
the Supreme Court. Rather than developing a standard that can be
understood and implemented by the regulated community and state
partners, the agencies appear intent on leveraging uncertainty and the
risk of civil and criminal liability to effectively maintain sweeping
authority in their own hands.
As long as major elements of the Supreme Court guidance go
unaddressed, conflict and pendulum swings in implementation will likely
continue. Without stability, states will struggle to appropriately
adjust existing programs. Nor will states have the time to seek
additional authorities from their legislatures. And the public we serve
will continue either going through unnecessary and expensive permitting
exercises, getting approvals from the incorrect authority, or, as the
Court feared, choosing to forego productive activities on their land.
Federal policymakers must remember that states exist. We're here,
and we're ready to do our jobs to protect state waters. Moreover,
working with states to achieve a stable regulatory framework would best
serve the field of water quality regulation.
Mr. Rouzer. Ms. Rowan, you are recognized for 5 minutes.
TESTIMONY OF NICOLE ROWAN, DIRECTOR, WATER QUALITY CONTROL
DIVISION, COLORADO DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT
Ms. Rowan. Thank you, Chairman Rouzer, Ranking Member
Napolitano, Ranking Member Larsen, and distinguished
subcommittee members for the opportunity to testify before you
today.
My name is Nicole Rowan, and I serve as the director of the
Colorado Department of Public Health and Environment's Water
Quality Control Division. Since 1975, our division has
implemented the point source discharge permitting program under
section 402 of the Clean Water Act.
I am here to discuss the implications of the Sackett v. EPA
decision for the State of Colorado.
The Sackett decision significantly impacted the arid and
semi-arid States in the West. In Colorado, for example,
approximately half of our streams are not relatively permanent,
and around half of our wetlands do not meet the Supreme Court's
``continuous surface connection'' test.
However, these wetlands and seasonal streams are vital to
our environment and economy. They play a crucial role in flood
and wildfire mitigation, water filtration, and habitat for
wildlife. Natural systems act as a first defense against
pollution, filtering out contaminants before reaching larger
water bodies. They also support key sectors of our economy:
agriculture, recreation, and tourism.
As a headwater State, our actions to protect water quality
have far-reaching implications for our downstream neighbors.
The Sackett decision had immediate implication for Colorado
businesses. Some homebuilders and contractors that no longer
needed permits from the Corps put their permits on hold because
the State, lacking a dredge and fill permitting program, could
not authorize these activities. However, placing fill material
in Colorado waters was not allowed under State statute without
a permit.
Colorado sought to remedy this challenge by issuing an
enforcement discretion policy shortly after the Sackett
decision. This informed the regulated community that the State
would not penalize those without a permit who notified us of
their projects and implemented best management practices from
the Corps' nationwide permits.
Some larger projects, however, did not qualify for
discretion under the policy. Colorado had to act quickly to
allow these projects to proceed.
Shortly after the Supreme Court heard oral argument for
Sackett, Colorado Governor Jared Polis convened a task force to
examine options for a State dredge and fill program. The task
force had representatives from agriculture, water supply,
construction, mining, oil and gas development, local
government, and the conservation community. All agreed that
Colorado needed a program to fill a gap left by Sackett.
The task force proposed four different approaches, ranging
from continuing to use enforcement discretion to full
assumption of the 404 program. These four approaches were
presented to a broader audience of stakeholders, who were asked
to provide written comments to inform State legislation.
During the Colorado General Assembly's 2024 regular
session, legislation was introduced authorizing our division to
issue permits for dredge and fill activity for all ephemeral
and intermittent streams and all wetlands in the State, which
went further than just regulating the gap of waters created by
Sackett. However, this approach provides certainty to the
regulated community by eliminating a ``significant nexus''
determination.
Through a series of over 45 stakeholder meetings with
nearly 500 participants, we drafted clear exemptions and
exclusions to this permitting regime that ultimately resulted
in bipartisan support for the legislation from groups like
Earthjustice and the Sierra Club, as well as the Colorado
Chamber of Commerce, Colorado Mining Association, and the
State's largest water advocacy organization representing over
400 water user interests, including water supply, agriculture,
and local government.
Governor Polis signed House bill 1379 into law on May 30,
making Colorado the first State to enact legislation in
response to Sackett. The bipartisan legislation ensures that
Federal 404 standards will continue while also addressing
Colorado's unique needs. This approach provides much needed
regulatory certainty and also demonstrates that bipartisan
solutions are achievable at the State level.
Thank you for your attention and for allowing us to share
Colorado's success story.
[Ms. Rowan's prepared statement follows:]
Prepared Statement of Nicole Rowan, Director, Water Quality Control
Division, Colorado Department of Public Health and Environment
Thank you, Chairman Rouzer, Ranking Member Napolitano, Chairman
Graves, Ranking Member Larsen, and distinguished subcommittee members,
for the opportunity to testify before you today. My name is Nicole
Rowan, and I serve as the Director of the Colorado Department of Public
Health and Environment's Water Quality Control Division. We are the
primary water quality protection program in the state. Since 1975, we
have implemented a delegated Section 402 program under the federal
Clean Water Act (or ``federal Act'') and a Section 401 water quality
certification program. Our 250-person division regulates 11,000
businesses across Colorado to ensure that they can operate effectively
while protecting the state's water resources.
I am submitting this written testimony on behalf of the State of
Colorado to accompany my oral testimony concerning Colorado's proactive
response to the U.S. Supreme Court's decision in Sackett v. EPA (May
2023). Colorado led the nation to establish a state dredge and fill
program in response to the Sackett decision through legislation. Our
program reinstates water quality protections that had been in place for
50 years at the federal level prior to Sackett, and also addresses a
number of Colorado-specific priorities. While we take pride in this
success story, we also want to take this opportunity to emphasize the
resulting significant financial burden on states like Colorado that
wish to continue wetland and water quality protection at the pre-
Sackett level, as well as the entities regulated by those states.
As you know, the U.S. Supreme Court`s decision in Sackett v. EPA
significantly narrowed the scope of waterways and wetlands historically
protected under the Clean Water Act. The Court's decision altered the
decades-long status quo that acknowledged the interconnectivity of all
water sources, regardless of navigability or permanence. The Sackett
decision saddled states with the burden of filling the gaps in
longstanding, uniform federal protection--to the extent states choose
to do so at all. The decision will undeniably result in a patchwork of
regulatory schemes across the nation to address water quality
protection, which is counter to the intent and purpose of the federal
Clean Water Act since wetlands serve to protect both seasonal and
permanent waterways that eventually flow across state borders. The
decision also greatly undermines the principle of cooperative
federalism that is the cornerstone of the Clean Water Act--through
which the federal government is responsible for setting uniform,
protective nationwide standards that states may choose to implement in
different ways with federal assistance and oversight.
I. Implications of the Sackett Decision for Colorado
From a proportional standpoint, the Sackett decision has some of
the greatest implications for the arid and semi-arid states in the
West, such as Colorado. This is because approximately 50% of Colorado's
streams are seasonal and thus do not satisfy the ``relatively
permanent'' test under Sackett to be considered ``waters of the United
States.'' Further, because of Colorado's dry climate and topography,
over 50% of the state's wetlands do not have a ``continuous surface
connection'' to relatively permanent waters, although the vast majority
of these wetlands are vital to protecting downstream waters. Colorado
is also home to many fens, which are a special kind of wetland in our
mountainous regions that take thousands of years to form. Fens are
especially effective in filtering pollution from downstream waters and
also act as carbon sinks.
The impacts of the Sackett decision in Colorado are particularly
stark because water in our state is increasingly scarce, and yet vital
to our prosperity. As the state's water needs expand, the health of our
waterways becomes even more important to support our economy and
growing population. Indeed, Colorado's wetlands and seasonal streams
provide countless opportunities for outdoor recreation, including
rafting and kayaking, hunting and fishing, and observing wildlife.
Colorado also takes great pride in its agricultural economy, which
relies on clean and predictable water supplies. Wetlands, in
particular, provide broad public benefits, including erosion control,
flood control, groundwater recharge, minimization of wildfire impacts,
and water quality enhancement through filtration of pollutants.
Further, as a headwaters state where most of our water originates high
in the Rocky Mountains through snowfall, the 17 downstream states that
depend on water originating in Colorado through interstate compacts are
also affected by the quality of our water.
II. Colorado's Bipartisan Response to the Sackett Decision
For all of these reasons, the Sackett decision and subsequent
change to the regulatory definition of ``waters of the United States''
made it imperative for Colorado to take immediate action to fill the
gap left in oversight of dredge and fill activities. Since 1975,
Colorado has administered an EPA-approved point source discharge
permitting program under Section 402 of the federal Act. The state,
however, did not establish a permitting program to regulate discharges
of dredged or fill material. Instead, along with 47 other states,
Colorado has historically relied on the U.S. Army Corps of Engineers'
(``USACE'') Section 404 permitting program to protect its waterways
from the impacts of dredge and fill activities. Through Colorado's
Section 401 authority, Colorado has worked cooperatively with the USACE
for nearly 50 years to ensure that activities being conducted under
individual 404 permits do not adversely impact water quality. Without
the 404 permit trigger, however, Colorado lacked a program designed to
protect its wetlands and waterways from the impacts of dredge and fill
activities.
Indeed, the Sackett decision put certain projects in Colorado on
hold and left those project proponents with no way to legally move
forward with construction or maintenance activities. Like the federal
Act, Colorado's Water Quality Control Act prohibits the discharge of
pollutants (including dredged and fill material) into state waters
without first obtaining a permit with effluent limitations designed to
meet water quality standards established by the Colorado Water Quality
Control Commission. Colorado cannot issue 402-type permits for
discharges of dredged or fill material because such discharges, by
their nature, exceed water quality standards. For this reason, after
the Sackett decision, project proponents in Colorado risked being in
violation of state law (i.e., discharging pollutants into state waters
without a permit) for conducting any dredge and fill activities in
waters that were no longer under federal jurisdiction.
Three years before the announcement of the Sackett decision,
Colorado undertook significant efforts to examine ``gap-filling''
options for water quality protection. In response to the Navigable
Waters Protection Rule published in April 2020, the Colorado Department
of Public Health and Environment led a stakeholder process to discuss
legislative solutions for filling a similar gap in federal dredge and
fill protection of our state's waterways and wetlands. That stakeholder
effort began with monthly meetings and eventually evolved into weekly
meetings during Colorado's 2021 legislative session. Although state
dredge and fill legislation was not ultimately passed during that
session, because of these outreach efforts, much of the foundation had
already been laid by the time the Sackett decision was announced.
Colorado's proactive approach continued in anticipation of the
Sackett decision. Shortly after the Supreme Court heard oral argument
for the Sackett case in October 2022, Governor Polis convened a task
force to examine options for a state-administered dredge and fill
program. The task force included representatives from several important
sectors within the state: agriculture, water supply, construction,
industry and commerce (including mining and oil and gas development),
local governments, and the conservation community. Representatives from
the Governor's Office, the State Attorney General's Office, and various
executive agencies, including Colorado's Department of Public Health
and Environment, Department of Agriculture, Department of Natural
Resources, and Department of Transportation, also participated. The
task force met seven times from February 2023 to July 2023.
All members of Governor Polis's task force agreed that Colorado
needed a program to fill the gap in dredge and fill protection left by
the Sackett decision. The task force proposed four possible approaches
(including the pros and cons of each) for Colorado to address dredge
and fill activities in the post-Sackett landscape: (1) an enforcement
discretion approach--a temporary option that would allow dredge and
fill activities to continue until a more permanent solution could be
agreed upon, involving installation of best management practices in
exchange for no enforcement for discharging without a permit; (2) a
``gap waters'' approach, which would focus on protecting waters and
wetlands previously protected under the ``significant nexus'' test from
the Court's Rapanos decision and corresponding EPA guidance issued in
2008; (3) a Colorado ``state waters'' program, which would protect all
``state waters,'' as that term is defined in state statute, including
wetlands, that do not fall under federal jurisdiction; and (4) full
assumption to administer the federal Section 404 program. The task
force agreed that it would be important to continue the longstanding
exemptions and exclusions found in the definition of ``waters of the
United States'' and the 404 permitting program framework, while taking
the opportunity to provide additional clarity and adding exemptions and
exclusions to address Colorado-specific needs. In July 2023, these four
approaches, along with the exemptions and exclusions, were presented in
a series of sector-specific meetings open to a broader audience of
interested stakeholders. The Task Force did not endorse or recommend
any particular one of these approaches. Stakeholders were asked to
provide written comments on the options to the Governor's Office by
October 2023, which would be considered in crafting legislation to be
introduced in Colorado's 2024 legislative session.
The Governor's Office and the Departments considered a myriad of
written comments to assist the bill sponsors, Speaker of the House
Julie McCluskie, Chair of the House Agriculture, Water and Natural
Resources Committee Representative Karen McCormick, Chair of the Senate
Agriculture and Natural Resources Committee Dylan Roberts, and Joint
Budget Committee Member Barbara Kirkmeyer, in crafting legislation to
authorize a state dredge and fill program. In January 2024, soon after
Colorado's legislative session began, the House sponsors and the
Department hosted a hybrid informational meeting to announce the
proposed framework of the program and continuing opportunities for
robust stakeholder involvement as details were being considered. Nearly
400 people attended that meeting, demonstrating a high level of
interest in the program. Shortly thereafter, a draft bill was shared
with stakeholders, kicking off three and half months of negotiating and
fine-tuning bill language with representatives from the various
sectors. This back-and-forth continued both before and after the bill
was officially introduced as House Bill 24-1379. During this period,
the bill sponsors held numerous in-person meetings and remained in
constant contact with all stakeholders to consider various proposals.
This process resulted in dozens of amendments to the introduced bill,
demonstrating the high level of cooperation that went into the final
product.
Incorporating input and specific language from the various
stakeholders ultimately made the legislation stronger and more focused
on Colorado's unique interests. The collaboration and expertise of
several state agencies were also key factors in the bill's success,
along with the partnership of Colorado's diligent and well-organized
conservation coalition. Colorado Governor Jared Polis signed the bill
into law on May 30, 2024, making Colorado the first state in the
country to enact legislation in direct response to the Sackett
decision. Colorado could not have achieved this accomplishment without
bipartisan buy-in and collaboration from all stakeholders. All
stakeholders were willing to work together to achieve the common goal
of protecting Colorado's valuable water resources, with each sector
having unique concerns and perspectives to contribute.
III. Colorado's Dredge and Fill Program Framework and Continued
Stakeholder Involvement
The resulting legislation established Colorado's Dredge and Fill
Protection Program within the Colorado Water Quality Control Act, which
protects all ``state waters'' from the impacts of dredge and fill
activities. Consistent with the wishes of the regulated community, the
Colorado program is based on the longstanding federal Section 404
permitting principles of avoidance and minimization of adverse impacts,
and mitigation requirements to compensate for unavoidable impacts. The
legislation also requires project proponents seeking to construct
reservoirs under state-issued individual dredge and fill permits to
develop a fish and wildlife mitigation proposal in consultation with
the Division of Parks and Wildlife. The Colorado Parks and Wildlife
Commission then evaluates the proposal and transmits its mitigation
recommendation to the Colorado Water Conservation Board, which may
affirm, modify, or amend the Commission's mitigation recommendation.\1\
This requirement has been in place since 1987 for reservoirs being
constructed under federal Section 404 permits, and Colorado felt it was
important to maintain these same protections for projects that no
longer fall under USACE jurisdiction.
---------------------------------------------------------------------------
\1\ Colorado Revised Statutes, Sec. 37-60-122.2 (2024).
---------------------------------------------------------------------------
The legislation directs the division to administer USACE's existing
nationwide and regional permits to protect ``state waters'' that are no
longer covered under the federal Section 404 permitting program.
Colorado defines ``state waters'' as ``any and all surface and
subsurface waters which are contained in or flow through the state,
including wetlands . . . .'' \2\ This includes all ephemeral and
intermittent streams and other water features (unless otherwise
excluded), even if they are isolated from other state waters.
Colorado's point source discharge program and dredge and fill program
are purposefully designed to protect any and all state waters that do
not otherwise fall under federal jurisdiction. The broad scope of our
water quality protection programs provides regulatory certainty in
light of the ever-changing federal definition waters of the United
States.
---------------------------------------------------------------------------
\2\ Colorado Revised Statutes, Sec. 25-8-103(19) (2024). The
division has historically included wetlands in its administration of
the state's point source discharge program, but Colorado took the
opportunity in House Bill 24-1379 to specifically include ``wetlands''
in the statutory definition of state waters.
---------------------------------------------------------------------------
While the scope of protection under the legislation is broad, it
also eliminates the need for a significant nexus determination and
provides numerous exemptions for certain activities and exclusions for
specified types of waterbodies, including those that have been long-
recognized under the federal definition of waters of the United States
and the section 404 framework, but with added clarity. For example, the
federal permitting exemption for ``normal farming activities'' in
section 404 of the Clean Water Act has created confusion for years. The
federal exemption includes ``upland soil and water conservation
practices'' (e.g. erosion control) in its list of normal farming
practices, but the term has never been defined in statute or
regulation. At the request of agriculture stakeholders, Colorado
included a detailed definition of the term, which also recognizes that
farmers and ranchers implement these types of practices daily, thereby
reducing nonpoint source pollution and improving water quality.
Colorado's legislation also expands and clarifies the federal
statutory exemption for ``construction and maintenance of farm ponds,
stock ponds, or irrigation ditches or the maintenance of drainage
ditches'' to better align with Colorado's extensive use of ditches and
acequias for irrigation and drainage. The state provision, crafted in
partnership with our agriculture stakeholders, exempts:
Construction or maintenance of farm ponds, stock ponds, farm
lagoons, springs, recharge facilities located in uplands, and
irrigation ditches or acequias, or maintenance of a drainage
ditch, roadside ditch, or a ditch or canal conveying wastewater
or water. Construction of new work or to extend, expand, or
relocate an irrigation ditch or acequia for municipal or
industrial purposes is not an exempt activity . . . .
The provision goes on to include detailed definitions of the terms
``construction,'' ``maintenance,'' ``irrigation ditches,'' and
``acequias,'' which, again, were agreed upon by representatives from
Colorado's farming and ranching sectors.
We also crafted additional exemptions and exclusions to address the
specific concerns of the various sectors, including common-sense
provisions to allow for certain infrastructure and water supply
projects to be constructed and maintained in a more efficient manner.
For example, a permitting exemption was included for dredging and other
maintenance activities in off-channel reservoirs, which does not exist
at the federal level.
The legislation directs Colorado's Water Quality Control Commission
to adopt rules governing certain aspects of the program such as: (1)
procedures and guidelines for the division's issuance of individual
permits for larger projects and incorporation of the federal 404(b)(1)
guidelines as the framework of those permits; (2) procedures for
consultation with relevant state and local agencies in developing
individual permit terms; (3) compensatory mitigation requirements for
projects that meet certain impact thresholds; (4) rules for the
issuance of general permits to promote efficiency for activities in
response to wildfire or other natural disasters, voluntary ecological
restoration activities, and activities impacting isolated state waters;
and (5) fee amounts to assist with covering the cost of administering
the program. The Department recently initiated a new stakeholder effort
that will continue until the rulemaking hearing, scheduled for December
2025. Meetings will be held with stakeholders on a monthly basis to
discuss all aspects of the regulation and to receive comments, even
before the formal rulemaking process begins in August 2025.
IV. The Resulting Financial Burden on Colorado and Other States
While Colorado considers the passage of House Bill 24-1379 to be a
major bipartisan success for the protection of our valuable water
resources, administering a program to fill the gap in protection left
by the Sackett decision will result in a significant fiscal impact for
the state--just to maintain the longstanding status quo of prior
federal protection. The Department anticipates spending approximately
$500k-$600k per year and hiring four full-time employees. In order to
sustain the program, a portion of the program costs will be passed to
the regulated community through cash fees, which they are not used to
paying at the federal level.
Later this year, Colorado anticipates receiving a grant through
EPA's Wetland Program Development Grant (``WPDG'') program, which will
allow the Department to hire contractors to assist with program
development. While these resources are valuable, funding for the WPDG
program has remained flat for more than a decade, maintained at
approximately $14.5 million per year. When adjusted for inflation, FY23
funding levels are at a 22% reduction from ten years ago. Additionally,
these grants are for program development and not ongoing administration
of programs. By upending the 50-year status quo, the Sackett decision
left states to establish and administer fully protective dredge and
fill programs. More than ever, states will need to rely upon federal
assistance to protect their wetlands and downstream water resources.
V. Conclusion
In conclusion, while Colorado has taken significant steps to
address the regulatory gaps left by the Sackett decision, our
experience underscores the critical need for sustained federal support
and collaboration. The proactive measures we have implemented,
including the creation of a state dredge and fill program, reflect our
commitment to maintaining the high standards of water quality that
Coloradans--and those downstream--rely upon. However, the financial and
administrative burdens placed on states by this decision are
substantial and ongoing. As we continue to navigate the complex and
evolving landscape of water regulation, it is imperative that the
federal government remains an engaged partner, providing both financial
assistance and consistent regulatory frameworks to ensure that states
can effectively protect their water resources. Only through such
cooperative efforts can we uphold the foundational principles of the
Clean Water Act and safeguard the health of our nation's waters for
future generations.
Mr. Rouzer. Thank you very much.
Ms. Briggs.
TESTIMONY OF COURTNEY BRIGGS, CHAIRMAN, WATERS ADVOCACY
COALITION, ON BEHALF OF THE AMERICAN FARM BUREAU FEDERATION
Ms. Briggs. Chairman Rouzer, Ranking Member Napolitano, and
members of the subcommittee, thank you for the opportunity to
testify today.
My name is Courtney Briggs, and I serve as chairman of the
Waters Advocacy Coalition, also known as WAC, and as senior
director of government affairs at the American Farm Bureau
Federation.
WAC is a multi-industry coalition representing a cross-
section of the Nation's construction, transportation, real
estate, mining, manufacturing, forestry, agriculture, energy,
wildlife conservation, recreation, and public health and safety
sectors--all vital to a thriving national economy and providing
much needed jobs in local communities.
It is an honor to be here on behalf of our trade
associations and the thousands of members and millions of jobs
we collectively support.
Our members are committed to protecting our natural
resources while maintaining their businesses. They live in the
communities where they work and understand their responsibility
in keeping our waterways healthy.
However, the Biden administration's interpretation and
implementation of WOTUS lacks clarity and certainty for
landowners and businesses and stretches the Federal
Government's jurisdictional reach beyond the limits of what is
legal.
Over the last few years, we have seen the Biden
administration offer a new WOTUS definition, the Supreme Court
hand down a highly consequential decision in Sackett, and then
the agencies respond with a conforming rule and numerous agency
memos.
Despite a clear ruling in Sackett, there have been no clear
directions from the agencies about which water features are
regulated by the Federal Government and which are left to the
States. Instead, the agencies are making up the rules as they
go.
They have failed to clarify the meaning of ``relatively
permanent'' and ``continuous surface connection,'' which are
crucial terms for defining the scope of Federal jurisdiction.
It seems the agencies want to leave these terms undefined,
allowing them to exploit the gray areas that persist in a post-
Sackett world. By leaving these terms undefined, the agencies
gain unchecked power to regulate land and natural resources,
creating murky waters for regulated entities.
In this ambiguous regulatory regime, American businesses
and landowners are left guessing where the line of jurisdiction
lies, despite the severe penalties for Clean Water Act
compliance--either $64,000 per day for every day of
noncompliance or jail time.
It is, thus, all too easy for our members to unknowingly
break the law. To put it simply, WAC members are tired of
playing the agencies' never-ending guessing games.
The agencies have also neglected to provide clear
implementation guidance to stakeholders. Instead, WAC members
began hearing feedback that secret implementation guidance was
being distributed by Corps headquarters to the districts with
strict instructions not to share publicly.
The agencies' refusal to release this secret guidance
forced many WAC members to submit FOIA requests. The agencies
responded with substantially redacted texts, stating that the
guidance was deliberative. How can something that is being used
on the ground to make determinations that directly impact
regulated parties be deliberative?
The agencies' implementation improv is putting our members'
projects and the communities that rely on them at risk. This is
a flagrant abuse of power and a blatant disregard for
Government transparency.
Rather than offering clear guidance, the agencies are
relying on memos haphazardly placed on their website with
little public notice. Each memo gives a small snippet as to how
they are implementing this rule, leaving stakeholders to play
connect-the-dots, with their livelihoods on the line.
Many of the concepts outlined in these memos run counter to
the decision in Sackett. The agencies offer no mechanism for
appealing the memos, no opportunity for public comment. These
memos are effectively rulemakings hiding in plain sight.
It is unacceptable that 1\1/2\ years since Sackett the
agencies continue to flout the Court's ruling and hold project
proponents and States hostage in regulatory limbo.
Our Nation's job creators, small businesses, farmers,
landowners, and even States remain in the dark about how the
rule is being implemented. This is especially concerning given
the serious penalties for even negligent Clean Water Act
violations, such as simply moving dirt in the wrong place.
The agencies seem more interested in charting their own
course than adhering to the Supreme Court's decision.
Thank you so much for the opportunity to testify today, and
I look forward to your questions.
[Ms. Briggs' prepared statement follows:]
Prepared Statement of Courtney Briggs, Chairman, Waters Advocacy
Coalition, on behalf of the American Farm Bureau Federation
Chairman Rouzer and Ranking Member Napolitano, thank you for the
opportunity to testify today. My name is Courtney Briggs, and I serve
as Chairman of the Waters Advocacy Coalition (WAC) and as Senior
Director of Government Affairs at the American Farm Bureau Federation
(AFBF).
WAC is a multi-industry coalition representing a cross-section of
the nation's construction, transportation, real estate, mining,
manufacturing, forestry, agriculture, energy, wildlife conservation,
recreation, and public health and safety sectors--all of which are
vital to a thriving national economy and provide much-needed jobs in
local communities. It is an honor to be here representing the 45 trade
associations, and the hundreds of thousands of members collectively
across the country, that make up WAC. I am also here representing the
thousands of hard-working farm and ranch families that produce the
abundant food, fiber, and renewable fuel that our nation and the world
depend on.
Our members are committed to protecting our natural resources while
also maintaining profitable businesses. They live in the communities
where they work and understand their responsibility in keeping our
waterways healthy. I have a unique understanding of this mindset, as it
is imbedded into the business philosophy of almost every farmer and
rancher across this country. They know they cannot grow crops or raise
animals without clean water and healthy soil, and they must leave the
land in better condition than they received it. I think we can all
agree that this is our collective goal, but the Biden Administration's
interpretation of WOTUS lacks clarity and certainty for landowners and
pushes the scope of the federal government's jurisdictional reach to
the outer bounds of what is legal under the Clean Water Act (CWA). The
U.S. Environmental Protection Agency (EPA) and the Army Corps of
Engineers' (the agencies) failure to faithfully implement the Sackett
decision has real-life consequences for important infrastructure and
development projects, and is impacting real people in the communities
that you all represent.
Flip Flopping of WOTUS is Unfair to Landowners
WAC and its members support the objectives of federal environmental
statutes such as the CWA. What we cannot support is the continuing
ambiguity of the line separating federal and state jurisdiction, which
is an issue that has created confusion for landowners, regulators, and
the general public for decades. We have lived in a world of regulatory
uncertainty due to near-constant rulemakings that swing the pendulum
back and forth, redefining the scope of the CWA. We have seen ``waters
of the United States'' (WOTUS) definitions change with each new
Administration and guidance documents offered and then rescinded,
generating more questions than answers. Landowners, small businesses,
and American families are the ones who suffer the most with these
constant changes.
Like clockwork, in early 2023, the agencies swung the regulatory
pendulum and finalized a new definition of WOTUS that greatly expanded
the federal government's role in regulating land use. WAC was highly
critical of the agencies' decision to move forward with this rulemaking
because the Supreme Court was set to imminently hand down a highly
consequential decision in Sackett v. EPA. Shortly after the 2023 rule
went into effect, the Court handed down a decision that reinforced
property owners' rights and ensured adherence to the congressional
intent of the CWA. The Court also respected the CWA's cooperative
federalism framework, as well as the states' primary authority and
responsibility to regulate non-federal waters within their borders.
All nine Supreme Court justices agreed that the Biden
Administration's use of the controversial ``significant nexus test''
was illegitimate, and a majority of the Court agreed that EPA's
interpretation of ``adjacency'' was overly broad. In an opinion
authored by Justice Alito, the Court reprimanded the agencies for
illegally expanding their regulatory reach. WAC celebrated this legal
victory because our members thought it would inject more clarity and
certainty into the regulatory process. Unfortunately, we were wrong.
On Sept. 8, 2023, the Corps and the EPA published a final rule
revising the regulatory definition of WOTUS under the CWA to try to
conform the definition to the Sackett decision. This ``conforming
rule'' failed to provide any more context to specific terms that are
serving as the linchpin for determining the scope of the federal
government's authority. It became obvious that the agencies were going
to exploit the gray areas that still exist in a post-Sackett world to
try to expand their regulatory reach. Leaving these terms undefined and
interpreting them expansively and in a freewheeling manner since
Sackett has given the agencies the latitude to regulate land use
however they please.
Why Words Matter: Relatively Permanent and Continuous Surface
Connection
With the death of ``significant nexus'' in Sackett, the Court
agreed that the agencies must solely follow the ``relatively
permanent'' test; a regulatory test originally authored by Justice
Scalia in Rapanos v. United States. As its name suggests, the test
states that a relatively permanent water that is connected to a
traditional interstate navigable water can be regulated as a
``navigable water'' (i.e., as a WOTUS). Likewise, an adjacent wetland
can be jurisdictional if it has a ``continuous surface connection'' to
a traditional interstate navigable water or a relatively permanent
water connected thereto.
In the aftermath of the Rapanos decision, the agencies drafted
interpretive guidance (2008 Guidance) where they interpreted
``relatively permanent'' to mean flowing year-round or having
continuous flow at least seasonally. In practice, the agencies
unlawfully swept in even ephemeral water features that carried flow
only after precipitation events (and far too many intermittent features
as well). The agencies interpreted ``seasonally'' to mean generally
three months, or possibly even less time depending on what part of the
country the water feature is located in. The agencies purported to rely
on a footnote in Rapanos to support this interpretation, but on its
face, that footnote discussed the possibility that a river flowing for
290 days (closer to 10 months) would not necessarily be excluded under
the relatively permanent test. In other words, whether jurisdiction can
be exercised over rivers, streams, and tributaries that flow
continuously for 290 days is a case-by-case basis inquiry. The agencies
inverted what Justice Scalia intended and instead concluded that any
feature that flows for continuously for at least 90 days is
automatically jurisdictional. See Rapanos, 547 U.S. at 732 n.5. It goes
without saying that not necessarily excluding 290 days of continuous
flow cannot possibly equate to automatically including 90 days of
continuous flow.
The new rule makes the relatively permanent standard even more
expansive than the 2008 guidance. The new rule abandons the seasonal
concept and does not use any bright line tests (days, weeks, or months)
or any concepts of flow regime (ephemeral, intermittent, perennial).
The rule vaguely says relatively permanent tributaries have flowing or
standing water year-round or continuously during certain times of the
year and they do not include tributaries with flowing or standing water
for only a short duration in direct response to precipitation. As an
example, the agencies suggest that consecutive storm events, or even a
single strong storm event, is enough to create relatively permanent
flow. This subtle change will greatly expand what areas the agencies
can assert jurisdiction over under the relatively permanent test.
Because the agencies have tied the relatively permanent standard to
the ditch exclusion, the broader the relatively permanent standard
gets, the fewer ditches will be excluded from jurisdiction. Under both
the 2008 guidance and the 2023 rule, ditches are excluded only if they
do not carry relatively permanent flow. Again, because the relatively
permanent test has expanded, fewer ditches will meet the requirement in
the exclusion.
Likewise, the 2023 rule also expands which wetlands (and ``other
waters'') are jurisdictional by virtue of having a continuous surface
connection to a relatively permanent water. The agencies interpret
``continuous surface connection'' to mean a physical connection that
does not need to be a continuous surface hydrologic connection, and
wetlands need not directly abut a relatively permanent water. Under the
2008 guidance, however, wetlands would only meet the ``continuous
surface connection'' test if they directly abut a relatively permanent
tributary (e.g., are not separated by uplands, a berm, dike, or similar
feature). The new rule, by contrast, abandons this directly abutting
requirement and instead provides that wetlands have a continuous
surface connection even if they are separated from a relatively
permanent impoundment of a tributary by a natural berm, bank, dune, or
similar natural landform so long as that break does not sever a
continuous surface connection and provides evidence of a continuous
surface connection. Wetlands also meet the continuous surface
connection requirement if they are located some distance away from a
relatively permanent tributary but connected by some linear feature
such as a ditch, swale, or pipe. The picture becomes clear that the
agencies are moving in the wrong direction.
It is worth noting that, ultimately, the question is not whether
tributaries or ephemeral streams are ``important'' or may as a
scientific matter have some connection with downstream navigable
waters, see, e.g., 86 Fed. Reg. at 69,390; rather, the question is
whether they should be considered as falling within the bounds of
federal jurisdiction. As with so many other categories in the 2023
rule, the agencies collapse that distinction.
Alito's Decision in Sackett
While the decision in Sackett did not pinpoint a specific flow
metric to be used to determine the meaning of relatively permanent, it
did give us more context as to what a regulated feature should look
like. Sackett ``conclude[d] that the Rapanos plurality was correct: the
CWA's use of `waters' encompasses `only those relatively permanent,
standing or continuously flowing bodies of water `forming
geographic[al] features' that are described in ordinary parlance as
`streams, oceans, rivers, and lakes.' '' The Rapanos plurality, in
turn, repeatedly distinguished between ``continuously present, fixed
bodies of water'' and ``ordinarily dry channels through which water
occasionally or intermittently flows.'' Indeed, the Rapanos plurality
explained that, as a matter of ``commonsense,'' the phrase ``waters of
the United States'' excludes ``channels containing merely intermittent
or ephemeral flow.''
Equally important, in Sackett, Justice Alito wrote that, to be
jurisdictional, a ``wetland [must] ha[ve] a continuous surface
connection with [a relatively permanent] water . . . making it
difficult to determine where the `water' ends and the `wetland'
begins.'' Additionally, the Court held ``that the Clean Water Act
extends to only those wetlands that are as a practical matter
indistinguishable from waters of the United States.'' In further
elaborating what it means to have a ``continuous surface connection,''
Justice Alito noted that ``temporary interruptions in surface
connection may sometimes occur because of phenomena like low tides or
dry spells.'' Read in context, Justice Alito clearly had in mind that,
to be jurisdictional, wetlands must typically have a continuous surface
hydrologic connection to a relatively permanent water, not just some
ordinarily dry physical connection like a ditch, pipe, or swale that
might span hundreds (or even thousands) of feet.
WOTUS Implementation Concerns
Immediately after the Sackett decision was handed down, the Corps
notified the public that they would be pausing the issuance of approved
jurisdictional determinations (AJDs) indefinitely. During the summer of
2023, landowners' only option to move forward on a project was to
accept a preliminary jurisdictional determination (PJD). PJDs force
landowners to concede that their land is a WOTUS and accept the
permitting and mitigation requirements--often unnecessarily. Many
projects with specific production windows had their backs against a
wall and saw this as the only option, especially in weather-dependent
industries such as construction. The directives in Sackett gave the
agencies the ability to move forward with most AJDs over that summer
but the Corps chose to take the summer off.
In September 2023, the agencies released two joint elevation
coordination memos to the field that established a process by which the
agencies will coordinate on CWA jurisdictional matters to ``ensure
accurate and consistent implementation'' of the 2023 rule or the pre-
2015 regulatory regime, depending on which regulatory framework is
applicable.\1\ The memos also outline procedures and specific timelines
under which the agencies can review and provide comment on certain
draft AJDs. Again, these elevation memos only discuss the process for
how the agencies will handle the approved jurisdictional determinations
that are elevated to Corps and EPA headquarters to be decided by
bureaucrats in Washington, D.C., and it fails to provide any actual
information for landowners to understand how the Corps intends to
implement the rule on the ground.
---------------------------------------------------------------------------
\1\ U.S. Env't. Prot. Agency and U.S. Army Corps of Eng'rs, Joint
Coordination Memorandum to the Field between the U.S. Department of the
Army, U.S. Army Corps of Engineers (Corps) and the U.S. Environmental
Protection Agency (EPA) on the Pre-2015 Regulatory Regime (Sep. 27,
2023), https://www.epa.gov/system/files/documents/2023-10/2023-joint-
coordination-memo-pre-2015-regulatory-regime_508c.pdf; U.S. Env't.
Prot. Agency and U.S. Army Corps of Eng'rs, Joint Coordination
Memorandum to the Field between the U.S. Department of the Army, U.S.
Army Corps of Engineers (Corps) and the U.S. Environmental Protection
Agency (EPA) on the January 2023 Rule, As Amended (Sep. 27, 2023),
https://www.epa.gov/system/files/documents/2023-10/2023-joint-
coordination-memo-amended-2023-rule_508c.pdf.
---------------------------------------------------------------------------
It has been exactly one year since the issuance of the elevation
coordination memos and unfortunately, many of WAC's members are still
experiencing significant challenges. Our members have experienced
blatant disregard for the timelines specified by the agencies. Some of
our members have draft AJDs that were elevated for local or
headquarters coordination twelve months ago and still have not been
resolved. Our members have compared this process to a ``black box,''
with many receiving no communication from the agencies on the status or
any questions or comments the agencies have regarding their draft AJDs.
We also understand that some Corps Districts have completely stopped
issuing AJDs--putting important projects and the communities that rely
on them at risk. Within WAC, we have many examples of these challenges
that we are willing to share with the Committee without attribution.
Shortly after the release of the elevation coordination memo, WAC
members from various industry sectors and regions of the country also
began to hear about internal guidance, directives, and training
documents regarding implementation that the Corps developed but has not
made available to the public. One of these documents includes internal
headquarters-level guidance dated around September 2023 that includes
information germane to, among other issues, assessing whether an arid
west drainage is relatively permanent. We also understand the agencies
have been providing regular training and information to District Office
staff regarding implementation of the final rule post-Sackett. Through
our contacts within the environmental consulting community, we heard
firsthand of this ``secret'' implementation guidance. We were
astonished by the blatant lack of transparency from the federal
government.
Agency Implementation Memos Defy Sackett
The calls from various landowners, industry sectors and states to
provide more information on implementation reached a fever pitch
earlier this year and the agencies quietly released two ``Headquarters
Field Memos Implementing the 2023 Rule, as Amended'' on the WOTUS
Implementation section of EPA's website. The agencies subsequently
released three additional ``Headquarters Field Memos Implementing the
Pre-2015 Regulatory Regime Consistent with Sackett'' on a separate part
of EPA's website. Unfortunately, the agencies not only failed to
prominently feature these updates or provide any notification to the
public about their existence, but they also neglected to offer any
guidance on how these memos should be interpreted or applied. As of
Sept. 5, 2024, the agencies have released 10 total policy memoranda,
four related to draft AJDs completed under the 2023 rule and six
related to draft AJDs completed under the pre-2015 regulatory regime.
Unfortunately, these field memoranda functionally expand the scope of
federal jurisdiction in violation of Sackett.
Much of what little direction the agencies have provided the
regulated community and public in the form of these memos directly
conflicts with Sackett and operates as quasi-rulemakings in disguise,
in violation of the Administrative Procedure Act (APA). These memoranda
are precisely the kind of regulatory overreach the APA was designed to
prevent. According to the APA, a ``rule'' is an agency statement of
general or particular applicability intended to implement, interpret,
or prescribe policy, or to describe organizational practice. Yet, the
agencies have been issuing ``Memos to the Field'' and telling
stakeholders that EPA regional and Corps District Offices should use
them for jurisdictional determinations whenever they see a similar fact
pattern. It's like pouring muddy water into clear streams and
pretending no one will notice--these memos are clearly being used to
set broad policy under the guise of specific guidance on WOTUS
regulations.
Furthermore, the agencies have asserted that these memoranda are to
be incorporated into the WOTUS interpretation lexicon. While on paper,
they attempt to sidestep rulemaking responsibilities by claiming these
memos are not legally binding, this is merely an effort to disguise
what they truly are: rulemakings hiding in plain sight. The agencies
offer no mechanism for appealing these memos, nor any opportunity for
public comment before they are issued. As a result, the public is left
navigating murky waters with politically charged, legally flawed
documents that decision-makers rely on, leaving them in a state of
legal limbo with no recourse.
For example, the agencies instructed the North Dakota field office
to reconsider, post-Sackett, whether a wetland separated by a 15-foot
``dirt track road and a seasonally plowed field''--and lacking a
``culvert to maintain a connection'' to a navigable feature--is still
jurisdictional. The agencies asserted that physically separate wetlands
may be treated as one jurisdictional wetland based on various factors,
even without a hydrologic connection, revealing a clear intent to evade
Sackett's holdings.
As another example, a recently released memorandum directs the
Buffalo District to evaluate whether a small wetland (only 0.030 acres)
connected solely by a non-relatively permanent stream and another
wetland over approximately 195 feet, still qualifies as jurisdictional
under the CWA, despite the lack of a continuous surface connection to a
navigable water. The agencies suggest that these disconnected features
can collectively form a single jurisdictional wetland, demonstrating a
clear intent to sidestep the Sackett ruling's requirement for a direct
and continuous surface connection. Additionally, this memo vaguely
discusses their understanding of ``indistinguishable'' when they state
that the term is ``not alone determinative of whether adjacent wetlands
are `waters of the United States.' '' They also add that ``Sackett does
not require the agencies to prove that wetlands and covered waters are
visually identical.''
The agencies' failure to provide clear direction to the public is
creating significant uncertainty on the ground and delaying important
projects. It is worth noting again that landowners need clarity from
the agencies on how they are interpreting and implementing the rule
because the CWA carries severe civil and criminal penalties for even
negligent violations. Landowners can be fined up to $64,000/per day or
receive jail time for any CWA violations. These penalties can devastate
small businesses, so landowners must understand how this rule is
implemented. Leaving them in the dark will only open them up to
unknowingly violating the law. Due to the agencies' veil of secrecy,
landowners are denied their constitutional rights of due process and
fair notice.
WAC Letter and Freedom of Information Act Request
Given the lack of transparency surrounding the elevation
coordination memo, the agencies' implementation memos, and the secret
field guidance, WAC sent a letter to agency leaders sharing our
member's implementation challenges and asking for answers on how the
agencies are implementing the rule. It has been six months since we
sent the letter, and we have yet to receive a response from either
agency. This lack of response only exacerbates the frustration felt by
our members, further codifying the belief that the agencies do not
actually want our members to have a working understanding of
implementation. This motivated WAC and many individual WAC members to
pursue our last available option toward gaining this vital information:
a Freedom of Information Act (FOIA) request.
Several months after the initial FOIA request, the government
provided a 1,128-page response. Unfortunately, a large majority of the
documents and text were redacted and labeled as ``deliberative'' under
a misapplication of FOIA Exemption 5 (deliberative process privilege).
However, the agencies' FOIA response confirmed two important things: 1)
the secret implementation guidance does exist and has been disseminated
to Corps districts and 2) Corps districts were explicitly instructed by
headquarters not to share this information with the public.\2\
Shockingly, the SharePoint that outlines the secret implementation
guidance was redacted from the response. It defies logic that the
implementation guidance that is currently being used on the ground is
considered ``deliberative.''
---------------------------------------------------------------------------
\2\ U.S. Department of the Army, Office of Counsel, Waters Advocacy
Coalition FOIA Request No. FP-24-012628.
---------------------------------------------------------------------------
Failed Public Outreach
In the wake of Sackett, the agencies have repeatedly promised to
engage stakeholders on implementation recommendations. In a July 13,
2023, hearing before the House Transportation and Infrastructure
Committee's Subcommittee on Water Resources and Environment, then-EPA
Assistant Administrator Radhika Fox told Congress the Agency would
``host implementation discussions with a range of stakeholders . . . if
there are ongoing questions after that rulemaking is complete.'' \3\
When asked about next steps on WOTUS implementation during a Dec. 5,
2023, hearing before the same subcommittee, Assistant Secretary of the
Army for Civil Works Michael Connor similarly promised Congress that
the Corps would ``continue to engage with the public and then look as
we get into next year doing guidance documents.'' \4\
---------------------------------------------------------------------------
\3\ Hearing on Agency Perspectives of FY24 Budget Requests: Hearing
Before the H. Comm. on Transp. and Infrastructure, 118 Cong. (July 13,
2023).
\4\ Hearing on Water Resources Development Acts: Status of Past
Provisions and Future Needs: Hearing Before the H. Comm. on Transp. and
Infrastructure, 118 Cong. (Dec. 5, 2023).
---------------------------------------------------------------------------
However, 1.5 years after the Sackett decision and exactly one year
after the publication of the final ``conforming'' rule, the agencies
have only recently attempted to engage with the public or answer any
implementation-related questions from the regulated community. For
example, many of our associations participated in the agencies'
listening sessions on Feb. 27 and 28, 2024, and raised implementation
questions during those meetings that went unanswered. Many of our
associations also asked these questions in stakeholder meetings with
EPA's Office of Water on March 22, 2024. Unfortunately, the agencies
did not respond to our questions during the listening session or at any
point thereafter. Our members need this information to ensure that they
are complying with the law. Engaging with the regulated community
aligns with EPA's \5\ and the Corps' \6\ own policies promoting
meaningful public engagement and involvement. It also reflects the
White House's direction to the heads of all federal agencies to broaden
public engagement in the regulatory process. We encourage a more robust
and ongoing discussion to ensure clear and consistent WOTUS
implementation.
---------------------------------------------------------------------------
\5\ See U.S. Env't. Prot. Agency, Meaningful Engagement Policy
(Sept. 2024), available at https://www.epa.gov/environmentaljustice/
epas-meaningful-engagement-policy .
\6\ See U.S. Army Corps of Eng'rs , Fact Sheet: Collaboration &
Public Participation Center of Expertise, available at https://
www.iwr.usace.army.mil/Portals/70/docs/CPCX/PIS_Fact_
Sheet.pdf. (``Public participation and collaboration are becoming an
integral part of the U.S. Army Corps of Engineers' missions. Effective
involvement and collaboration achieves more sustainable project
solutions and helps projects stay on schedule. Experience has proven
that open, ongoing and two-way communication between the Corps and the
communities we serve reduces project risks and improves internal and
external customer satisfaction.'' See also 2021-2025 Strategic Plan:
USACE Collaboration and Public Participation Center of Expertise,
available at https://www.iwr.usace.army.mil/Portals/70/docs/CPCX/
\6\ See Memorandum from Richard L. Revesz, Adm'r., Office of
Management and Budget; Memorandum for the Heads of Executive
Departments and Agencies on ``Broadening Public Participation and
Community Engagement in the Regulatory Process'' at 1 (July 19, 2023),
available at https://www.whitehouse.gov/wp-content/uploads/2023/07/
Broadening-Public-Participation-and-Community-Engagement-in-the-
Regulatory-Process.pdf
---------------------------------------------------------------------------
How is this Different from Significant Nexus?
As we have already established, the Supreme Court unanimously drove
a stake into the heart of the significant nexus test. However, through
the agency implementation memos we have pieced together a few aspects
of what we anticipate is published in the secret Corps guidance. First,
the agencies are merely requiring a physical connection, as opposed to
a hydrologic connection in order to establish jurisdiction, which is
inconsistent with both the Rapanos and Sackett decisions. Second, they
have confirmed that they will use non-relatively permanent features,
such as a dry ditch or a low spot in a farm field, to satisfy a
continuous surface connection. Third, in their most recent
implementation memo the agencies completely disregard Justice Alito's
direction that adjacent wetlands need to be ``indistinguishable'' from
a WOTUS. Gutting the meaning behind this consequential term greatly
expands the regulatory reach afforded to the agencies. Finally, it is
clear that the agencies want to continue a case-by-case regulatory
regime that is akin to how the significant nexus test operated.
Considering all of this in combination, it begs the very important
question: As a practical matter, how is this fundamentally different
from the significant nexus test that the Court struck down? After
Sackett, many of us in the WAC community expressed concern that the
agencies were going to creatively compile polices that achieved the
same goals as the significant nexus test. Unbelievably, it seems that
is exactly what is transpiring.
Cooperative Federalism
Cooperative federalism is one of the clear objectives of the CWA.
Section 101(b) of the CWA states that it is Congressional policy to
preserve the primary responsibilities and rights of states to prevent,
reduce, and eliminate pollution, to plan the development and use of
land and water resources, and to consult with the Administrator with
respect to the exercise of the Administrator's authority under the CWA.
Congress was emphatic that the states have a role to play in protecting
our nation's water. This means that there is a clear point where
federal jurisdiction ends and state jurisdiction begins. In the past,
we have seen regulatory definitions of WOTUS, such as the Obama
Administration's rule, that would have usurped state's authority--
thereby violating one of the clear intentions of the law. It is
important that this balance is preserved.
However, the uncertainty as to where the jurisdictional line lies
makes it very difficult for states to understand what is under their
authority. We have heard from leadership of the Environmental Council
of the States and directly from many individual states that they share
the exact same concerns that WAC has articulated over the last year. We
have heard members of the environmental community reference ``gap
waters'' that exist in a post-Sackett world, but how are they able to
identify those? The agencies have not provided a clear interpretation
of relatively permanent or continuous surface connection, have not
offered the secret implementation guidance and are flouting the
decision from Sackett. Again, how can states stand up a regulatory
program with all these critical pieces missing?
Conclusion
Given the need for clear regulations to protect water resources, it
is unacceptable that 1.5 years since the Sackett decision and more than
a year after the agencies finalized their revised 2023 WOTUS rule, the
agencies continue to mislead Congress and the public, slow-walk
compliance with the Sackett decision, and hold project proponents and
states hostage in regulatory limbo by failing to make decisions. As a
result of the uncertainty, our nation's job creators, small businesses,
farmers, landowners, and even states remain in the dark about how the
rule is being implemented. This is especially concerning given the
serious criminal and civil penalties for even negligent CWA violations,
such as simply digging in the wrong place.\7\ This represents a total
failure of leadership and lack of government transparency.
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\7\ 33 U.S.C. Sec. 1319(c)-(d).
Mr. Rouzer. Mr. Messerly.
TESTIMONY OF VINCENT E. MESSERLY, PRESIDENT, STREAM AND
WETLANDS FOUNDATION, ON BEHALF OF THE NATIONAL ASSOCIATION OF
HOME BUILDERS
Mr. Messerly. Good morning, Chairman Rouzer, Ranking Member
Napolitano, and members of the subcommittee. I appreciate the
opportunity to appear before you today on behalf of the
National Association of Home Builders.
My name is Vince Messerly. I am president of the Stream and
Wetlands Foundation, based in Lancaster, Ohio, and we are a
mitigation bank sponsor and in-lieu fee program sponsor.
During the past year, the implementation of the revised
WOTUS rule post-Sackett has been a tremendous letdown for
homebuilders and wetland consultants. Particularly, this has
been frustrating on two fronts: The agencies are not faithfully
adhering to the Supreme Court's holdings, and the regulated
public has been stiff-armed in the implementation guidance.
We must be clear, Sackett was not a controversial decision.
All nine Justices agreed that the agencies exceeded their
Federal authority. The ``significant nexus'' test clearly
overstepped the Clean Water Act.
For decades, NAHB has advocated for a clear and predictable
WOTUS. Housing production is linked to successful permitting.
As a mitigation banker, I work in partnership with homebuilders
to navigate the Clean Water Act. Our purpose is twofold:
safeguarding the environment, while allowing the creation of
housing.
Housing attainability is at an all-time record low.
According to NAHB's ``Priced Out'' study, nearly 80 percent of
households are unable to afford the median price of a new home.
The picture becomes more stark when you consider that for every
$1,000 increase in a new home's price, an additional 106,000
households are priced out of the market.
Uncertainty and delays in permitting, especially as it
relates to WOTUS, needlessly increase housing costs and turns
the American Dream into just that--only a dream.
Here is how the EPA and the Army Corps missed the mark on
the revised WOTUS rule.
Instead of relying on the ``significant nexus'' test, the
agencies are now relying on undefined regulatory terms
``relatively permanent waters'' and ``continuous surface
connections.'' They left these terms undefined in the preamble
before and after the Sackett decision. These undefined terms
are being used to connect isolated wetlands to WOTUS via
unregulated streams or features such as ditches, swales, pipes,
et cetera.
This has morphed into a game of Twenty Questions for
homebuilders and other project applicants asking: How far away
is just too far to document connectivity? The uncertainty and
confusion are having significant impacts on the homebuilding
and infrastructure projects. Based on the agencies' 10
coordination memos, we can gather 195 feet is a relatively
short distance and could be used to determine jurisdiction,
while in another example 2 miles away is just too far.
The Court was clear: To assert jurisdiction, a wetland must
be adjacent to WOTUS. And to be adjacent, wetlands must be
indistinguishable from the waters of the United States, meaning
there must be no clear demarcation. Yet the agencies are
tracing connectivity between features that are clearly
distinguishable.
Last December, Congressman Duarte shared before the
subcommittee during a hearing with Michael Connor of the Army
Corps of Engineers his personal experience with swales being
wrongly used to establish connectivity.
As for transparency, during the same hearing, Mr. Connor
said that the agencies' implementation guidance will be a
public process. Unfortunately, that has not manifested. The
agencies issued a final post-Sackett rule invoking the APA
``good cause'' exemption, which precluded public comments
because it was deemed unnecessary.
Given that our members are unclear on the WOTUS regs, NAHB
has sent a FOIA request to the Army Corps requesting
implementation guidance. Over 6 months later, NAHB finally
received a formal response with reams of redacted information,
and some of the only unredacted information we received were
multiple copies of the same slide deck used for public
seminars.
Regrettably, these webinars were one-sided. We were invited
to participate, but our lingering questions surrounding WOTUS
implementation were completely sidestepped.
Moreover, during a March 22nd stakeholder meeting with NAHB
and others, EPA was asked whether their coordination memos were
nationally binding. This is a critical issue because, under the
APA, nationally binding documents must be open for public
comment. As we tried to proceed for an answer, the EPA simply
ended the conversation.
To boost housing production and improve affordability, the
residential construction industry needs a clear and predictable
section 404 permitting process. This predictability can be
achieved if Congress codifies the definitions of ``relatively
permanent waters'' and ``continuous surface connections'' or,
alternatively, tells the regulated community what features do
not fall under these definitions.
Thank you again for the opportunity. We look forward to
working with you, and I am glad to answer questions.
[Mr. Messerly's prepared statement follows:]
Prepared Statement of Vincent E. Messerly, President, Stream and
Wetlands Foundation, on behalf of the National Association of Home
Builders
Introduction
Chairman Rouzer, Ranking Member Napolitano, and members of the
Subcommittee, I appreciate the opportunity to appear before you today
on behalf of the National Association of Home Builders (``NAHB''). My
name is Vince Messerly, and I am the president of the Streams and
Wetlands Foundation, a non-profit wetlands mitigation bank based in
Ohio. I also serve as Vice Chairman of NAHB's Environmental Issues
Committee.
NAHB's membership includes more than 140,000 member firms, involved
in the home building, remodeling, multifamily construction, land
development, property management, subcontracting and light commercial
construction industries. NAHB members construct approximately 80% of
all new housing in the United States each year.
As a mitigation banker, I have the opportunity to collaborate hand-
in-glove with home builders and developers to accomplish two bedrock
goals: creating housing opportunities and safeguarding the environment.
Our team develops and monitors wetland bank projects to ensure high
quality aquatic resources are restored and receive long-term
protection. Builders undergoing the Clean Water Act (CWA) 404
permitting process purchase wetland bank credits to offset their
construction activity on wetlands. This dynamic has supported over
1,500 permit applicants, facilitating an estimated $3 billion in
economic development and infrastructure projects, while also
protecting, enhancing, or restoring more than 4,000 acres of wetlands,
riparian corridors, and upland buffers.
Because of this experience, I have a unique understanding of the
CWA regulatory process and how the inefficiencies impact home building
in the real world. The Sackett Supreme Court decision crystallized the
intent of the CWA and corrected the goalposts. On September 8th, 2023,
the U.S. Environmental Protection Agency and U.S. Army Corps of
Engineers (hereafter ``the Agencies'') released their revised
definition of the Clean Water Act term ``waters of the United States''
(``WOTUS'') to comply with Sackett. As the one-year mark has passed,
NAHB regrets to share with the Subcommittee that the revised rule's
implementation has been a letdown. The Agencies failed on two fronts--
WOTUS is not being implemented according to the Supreme Court's
holdings, and the understanding of the regulatory process continues to
be as clear as mud.
The residential construction industry, and others in the regulated
community, continue to experience prolonged and opaque permitting
processes, which makes it more difficult for home builders to provide
homes or apartments at a price point attainable for most households.
Consequently, builders and developers operating under an unpredictable
regulatory environment will make home building inefficient and costly,
ultimately exacerbating our nation's housing crisis.
Housing Attainability:
Before examining Sackett and the Agencies' WOTUS implementation, it
is crucial to contextualize the immense housing challenges Americans
are experiencing. Predictability and certainty in the CWA 404
permitting regime are crucial because housing production is linked to
successful permitting. Our nation is facing a fever-pitched housing
attainability crisis. The root cause of this crisis is
straightforward--there is a dearth of supply in the single-family and
multifamily markets, both for-rent and for-sale. NAHB's economists
estimate that there is over a 1.5-million-unit housing shortage in the
U.S.\1\ Unfortunately, this has forced a majority of Americans to
remain on the sidelines, unable to access the American Dream of
homeownership and the ability to build economic success.
---------------------------------------------------------------------------
\1\ Single-Family Starts will Rise in 2024 but Supply-Side
Challenges Persist, https://www.nahb.org/news-and-economics/press-
releases/2024/02/single-family-starts-will-rise-in-2024.
---------------------------------------------------------------------------
According to NAHB's ``Priced Out Estimates'' study for 2024, 77% of
households are unable to afford the median price of a new home which
sits at $495,750.\2\ Lowering costs is pivotal because prospective
homebuyers are highly elastic to price changes. The study further
demonstrates that for every $1,000 increase in the median price of a
new home, an additional 106,031 households would be priced out of the
market. Indeed, constrained inventory is fueling the housing
affordability crisis.
---------------------------------------------------------------------------
\2\ Na Zhao, Nearly 77% of U.S. Households Cannot Afford a Median-
Priced New Home, https://www.nahb.org/-/media/NAHB/news-and-economics/
docs/housing-economics-plus/special-studies/
2024/special-study-households-cannot-afford-a-median-priced-new-home-
april-2024.pdf?rev=cb6f4
f7d507341cb9ece97b90b6709c3.
---------------------------------------------------------------------------
Permitting delays and regulatory uncertainty needlessly increases
housing costs by reducing housing supply. As someone who has navigated
the CWA 404 wetland permitting process, regulators do not need to deny
a permit to halt a housing project, simply delaying the process, or
worse failing to provide clear regulatory guidance is more than enough
to cause a developer or builder to abandon a project--no matter how
desperately needed housing might be in a community.
The challenges surrounding WOTUS permitting become stark when you
consider the time and cost to obtain a CWA section 404 permit. A 2002
study found that it takes an average of 788 days and, adjusted for
inflation, $471,836 to obtain an individual permit and 313 days and
$50,233 for a ``streamlined'' nationwide permit. Over $1.7 billion is
spent annually by the private and public sectors obtaining wetlands
permits.\3\ Importantly, these ranges do not consider the cost of
mitigation, which can be exorbitant. When considering these
implications--from housing attainability to CWA section 404
permitting--it is clear why we need to have proper implementation of
the WOTUS rule, which is why Sackett sought to address long-running
concerns over federal overreach.
---------------------------------------------------------------------------
\3\ Sunding, D., & Zilberman, D. (2002). The economics of
environmental regulation by licensing: An assessment of recent changes
to the wetland permitting process. https://digitalrepository.unm.edu/
nrj/vol42/iss1/5/
---------------------------------------------------------------------------
The Sackett Decision
In May 2023, the United States Supreme Court decided the case
Sackett v. Env't Prot. Agency.\4\ The Sacketts own a 0.63-acre vacant
lot in a residential subdivision near Priest Lake, Idaho. To the north,
the lot is bounded by a county road, and on the other side of the road
there is a drainage ditch. To the south, the lot is bounded by another
road and a row of houses sit south of that road; those houses have
frontage on Priest Lake.
---------------------------------------------------------------------------
\4\ Sackett v. Env't Prot. Agency, 598 U.S. 651 (2023).
---------------------------------------------------------------------------
The government asserted jurisdiction over a wetland area on the
Sacketts' lot pursuant to the Clean Water Act. The question in the
Sackett case was whether that wetland area was a ``water of the United
States'' and therefore jurisdictional. All nine justices agreed that
the government had improperly asserted jurisdiction over the wetland,
and five justices established a test for determining when the
government may assert Clean Water Act jurisdiction over wetlands.
The Court began its opinion by explaining that the Clean Water Act
can have ``crushing'' consequences on property owners, even those that
inadvertently contravene its requirements.\5\ (The EPA threatened
Michael and Chantell Sackett with fines of $40,000 per day because they
unknowingly backfilled their property). The Court then provided a
history of its previous CWA cases. In United States v. Riverside
Bayview Homes, Inc.\6\, the Court allowed the Corps of Engineers to
assert jurisdiction over wetlands that actually abutted a navigable
water.\7\ Then in Solid Waste Agency of Northern Cook Cty. v. Army
Corps of Engineers \8\ (SWANCC), the Court held that isolated ponds not
adjacent to open waters did not fall under the jurisdiction of the CWA.
Furthermore, the Sackett Court explained that after the SWANCC decision
``[t]he agencies never defined exactly what they regarded as the `full
extent of their authority.' They instead encouraged local field agents
to make decisions on a case-by-case basis. What emerged was a system of
`vague' rules that depended on `locally developed practices.' '' \9\
---------------------------------------------------------------------------
\5\ Sackett, 598 U.S. at 660.
\6\ United States v. Riverside Bayview Homes, Inc., 474 U.S. 121
(1985).
\7\ Sackett, 598 U.S. at 665.
\8\ Solid Waste Agency of Northern Cook Cty. v. Army Corps of
Engineers, 531 U.S. 159 (2001).
\9\ Sackett, 598 U.S. at 665-66.
---------------------------------------------------------------------------
Finally, the Sackett Court addressed Rapanos v. United States.\10\
In Rapanos, no opinion garnered five votes. In describing the Rapanos
plurality opinion, the Sackett Court wrote that the CWA:
---------------------------------------------------------------------------
\10\ Rapanos v. United States, 547 U.S. 715 (2006).
May fairly be read to include only those wetlands that are ``as
a practical matter indistinguishable from waters of the United
States,'' such that it is ``difficult to determine where the
`water' ends and the `wetland' begins.'' 547 U.S., at 742, 755,
126 S.Ct. 2208 (emphasis deleted). That occurs when wetlands
have `a continuous surface connection to bodies that are
`waters of the United States' in their own right, so that there
is no clear demarcation between `waters' and wetlands.' '' \11\
---------------------------------------------------------------------------
\11\ Sackett, 598 U.S. at 678 (quoting Rapanos).
Additionally, in Rapanos, a concurring opinion determined that
``jurisdiction under the CWA requires a `significant nexus' between
wetlands and navigable waters and that such a nexus exists where `the
wetlands, either alone or in combination with similarly situated lands
in the region, significantly affect the chemical, physical, and
biological integrity' of those waters.'' \12\
---------------------------------------------------------------------------
\12\ Id. at 667 (quoting J. Kennedy's concurring opinion in
Rapanos).
---------------------------------------------------------------------------
As the Sackett Court explained, even after three Supreme Court
opinions addressing the jurisdiction of the CWA many property owners
were in a ``precarious position because it is often difficult to
determine whether a particular piece of property contains waters of the
United States.'' \13\
---------------------------------------------------------------------------
\13\ Id. at 669 (internal quotations omitted).
---------------------------------------------------------------------------
After analyzing the wording of the CWA and these three previous
cases, the Court ruled that the Sacketts' wetlands were not
jurisdictional. The Court rejected the ``significant nexus'' test and
clarified that for the government to assert jurisdiction over a wetland
that wetland must be adjacent to a ``water of the United States.'' And
to be adjacent, wetlands must be ``indistinguishably part of a body of
water that itself constitutes ``waters'' under the CWA.'' \14\
Moreover, ``[w]etlands that are separate from traditional navigable
waters cannot be considered part of those waters, even if they are
located nearby.'' \15\ Thus, the Court held that:
---------------------------------------------------------------------------
\14\ Sackett, 598 U.S. at 676.
\15\ Id. at 20
The CWA extends to only those wetlands that are ``as a
practical matter indistinguishable from waters of the United
States.'' Rapanos, 547 U. S., at 755 (plurality opinion)
(emphasis deleted). This requires the party asserting
jurisdiction over adjacent wetlands to establish ``first, that
the adjacent [body of water constitutes] . . . `water[s] of the
United States,' (i.e., a relatively permanent body of water
connected to traditional interstate navigable waters); and
second, that the wetland has a continuous surface connection
with that water, making it difficult to determine where the
`water' ends and the `wetland' begins.'' Id., at 742.'' \16\
---------------------------------------------------------------------------
\16\ Sackett, 598 U.S. at 678-79.
Sackett Aftermath
Following the Sackett decision, the Agencies immediately instituted
a nationwide freeze in processing any requested jurisdictional
determination (JD), or issuance of CWA 404 wetlands permits based upon
already issued AJDs until the Agencies could amend (i.e., fix) their
Revised Definition of Waters of the United States \17\ rule to comply
with the Sackett ruling. The resulting three-month suspension of the
CWA 404 permitting program halted home building and infrastructure
projects around the country. Assistant Secretary of the Army Civil
Works Mr. Michael Connor announced over 4,000 projects seeking approved
jurisdictional determinations (AJDs) were backlogged before this
Subcommittee on December 5th, 2023.\18\
---------------------------------------------------------------------------
\17\ Revised Definition of ``Waters of the United States,'' 88 Fed.
Reg. 3004 (Jan. 18, 2023).
\18\ Water Resources Development Acts: Status of Past Provisions
and Future Needs: House Water Resources and Environment Subcommittee of
the Transportation and Infrastructure Committee, 118th Cong. (2023).
https://transportation.house.gov/calendar/eventsingle.aspx?
EventID=406974
---------------------------------------------------------------------------
NAHB members reported that the Agencies' staff encouraged project
proponents, who were seeking AJDs, to instead agree to accept
preliminary jurisdictional determinations (PJDs) to avoid delays in
Corps field staff processing AJDs, which compounded ongoing confusion
over the Sackett ruling. It is crucial to highlight--when a property
owner accepts a PJD, they are agreeing to not have the Agencies make a
CWA jurisdictional determination, and instead presume all aquatic
features (i.e., wetlands, streams, drainage ditch, pond, etc.) are
jurisdictional and therefore require a permit. As a result, landowners
were coaxed into surrendering to the PJD route, which is more likely to
trigger additional permitting requirements, including being forced to
pay for compensatory mitigation.
Nearly three months after Sackett, the Agencies released regulatory
text amendments amendment to the WOTUS rule on August 13, 2023 \19\,
and purported to have complied with the Sackett opinion. Surprisingly,
the actual changes to the regulatory text of the WOTUS definition were
quite limited. To highlight the major change--the Agencies removed
references to the ``significant nexus'' test under three of the rule's
five jurisdictional categories--tributaries, adjacent wetlands, and
Intrastate lakes and ponds.\20\ For each of those three jurisdictional
categories where the ``significant nexus'' test was removed, what now
remains is an equally confusing and vague standard. This new test
requires federal regulation if the water feature in question is
``relatively permanent,'' or has ``continuous surface connection''
between itself and a downstream jurisdictional feature--both of which
were left undefined.
---------------------------------------------------------------------------
\19\ Amendments to 40 CFR 120.2 and 33 CFR 328.3, https://
www.epa.gov/system/files/
documents/2023-08/
Regulatory%20Text%20Changes%20to%20the%20Definition%20of%20Waters
%20of%20the%20United%20States%20at%2033%20CFR%20328.3%20and%2040%20CFR
%20120.2.pdf.
\20\ Id. at 3
---------------------------------------------------------------------------
On September 8, 2023, the Agencies issued their Revised Definition
of ``Waters of the United States''; Conforming (hereafter ``the
Conforming Rule'').\21\ Frustratingly, the Agencies again refused to
define ``continuous surface connection'' or ``relatively permanent''
despite the Sackett Court's repeated admonishment for expansive
interpretations of regulatory authority to regulate non-navigable
isolated wetlands as ``adjacent wetlands.'' In a deeply disturbing
choice, the public and regulated industries were intentionally
prohibited from commenting on the rule or the flaws with the existing
preamble. The Conforming Rule was finalized using the APA ``good
cause'' exemption \22\ because the Agencies determined public comment
was unnecessary. As a matter of government transparency and public
participation, this is highly problematic.
---------------------------------------------------------------------------
\21\ 88 Fed. Reg. 61964 (Sept. 8 2023).
\22\ Congressional Research Service: The Good Cause Exception to
Notice and Comment Rulemaking: Judicial Review of Agency Action (2019).
https://crsreports.congress.gov/product/pdf/R/R44356.
---------------------------------------------------------------------------
Because the Agencies used the ``good cause'' exemption, they
continued to rely on the preamble from their January 2023 rulemaking.
For example, they asserted within the preamble the concept of
``relatively permanent'' when determining whether a feature meets the
``tributary'' jurisdictional category, which stretches beyond the
Supreme Court's understanding of the concept (i.e., free flowing
rivers, streams, creeks, etc.). This means the Agencies can claim
evidence of a ``relatively permanent tributary'' by simply being ``able
to trace evidence of a flow path downstream''.\23\
---------------------------------------------------------------------------
\23\ 88 Fed. Reg. 3079 (January 18, 2023).
---------------------------------------------------------------------------
This evidence includes ephemeral flows \24\, which is flowing water
from a ``concentrated period of back-to-back precipitation events.''
\25\ Furthermore, the Agencies claim ``a tributary may flow through
another stream that flows infrequently, and only in direct response to
precipitation, and the presence of that stream is sufficient to
demonstrate that the tributary flow to a paragraph (a)(1) water.'' \26\
Perhaps one of most egregious assertions within the preamble concerns
the concept of ``continuous surface connection'' in the context of
jurisdictional tributaries is that ``[t]ributaries are not required to
have a surface flowpath all the way down to the paragraph (a)(1) water
and the flowpath may include subsurface flow.'' \27\
---------------------------------------------------------------------------
\24\ Id. at 3084.
\25\ Id. at 3086, 3087.
\26\ Id. at 3084.
\27\ Id. at 3084.
---------------------------------------------------------------------------
The Sackett decision made clear the Agencies only have authority
under the CWA to take jurisdiction over ``relatively permanent''
waterbodies and wetlands that are indistinguishable from those waters.
The Conforming Rule intentionally failed to provide any regulatory
definition of what constitutes a ``relatively permanent'' waterbody and
ignores the concept of ``indistinguishability.'' Unlike the WOTUS
regulatory definition finalized under Navigable Waters Protection Rule
\28\, the Conforming Rule neglects to exclude from federal jurisdiction
all ``ephemeral features,'' which only possess water following a
rainfall event, but instead claims within the preamble that ephemeral
features could have ``relevantly permanent'' flow.
---------------------------------------------------------------------------
\28\ 85 Fed. Reg. 22250 (April 21, 2020).
---------------------------------------------------------------------------
The Conforming Rule rendered more confusion and uncertainty in the
residential construction industry. The Agencies refused to provide a
clear regulatory definition of either ``relatively permanent''
waterbodies, or ``continuous surface connection'', and avoided
collaboration with the public on implementation guidance. In response,
NAHB submitted a Freedom of Information Act (``FOIA'') on October 11th,
2023, request seeking information concerning how the Agencies were
interpreting and enforcing the final Conforming Rule in the field.
Specifically, the NAHB FOIA request sought:
Copies of administrative guidance documents,
Training materials provided to Corps district offices,
Implementation guidance from the Agencies headquarters
staff to Corps district offices, and
Questions from all Corps district offices to Agencies
headquarters staff concerning implementation of the Conforming Rule.
Despite FOIA's statutory deadline that requires a response within
30 days, over six months passed before NAHB received a formal response.
The Agencies' FOIA response included 1,500 pages--over half of which
was redacted citing a FOIA exemption for internal deliberative
documents. Among the unredacted documents were multiple copies of the
same public webinars and factsheets. This unsatisfactory response
forced NAHB to submit a FOIA administrative appeal to the Agencies
concerning the heavily redacted documents and liberal use of the
``Exemption 5''.\29\ Specifically, NAHB is challenging the Agencies'
assertion that documents related to the implementation or enforcement
of a final rule can still be considered deliberative and internal.
---------------------------------------------------------------------------
\29\ Department of Justice: FOIA Guide, 2004 Edition: Exemption 5.
https://www.justice.gov/archives/oip/foia-guide-2004-edition-exemption-
5.
---------------------------------------------------------------------------
Finally, in June 2024, the Agencies updated \30\ the coordination
memorandum which was first released in September, 2023.\31\ Together
those memos string together a process by which the Corps and EPA would
coordinate jurisdictional determinations. They do not provide any
clarity to the regulated community concerning when a feature is or is
not a ``water of the United States.'' Instead, the memos established an
internal elevation process between Corps districts, EPA Regional
Offices, and the Agencies headquarters staff to review before
finalizing any approved jurisdictional determinations (AJDs) for either
adjacent wetlands or intrastate lakes and ponds. Not surprisingly,
several of the pending AJDs subject to internal elevation and review by
Agencies headquarters staff concern interpreting and applying the
undefined concepts of ``relevantly permanent'' and ``continuous surface
connection'' when making jurisdictional determinations for non-
navigable adjacent wetlands, ephemeral tributaries, and isolated ponds.
---------------------------------------------------------------------------
\30\ Michael L. Connor, Assistant Secretary of the Army; Bruno
Pigott, Acting Assistant Administrator U.S. Environmental Protection
Agency, Extension of Joint Coordination Memoranda to the Field Between
the U.S. Department of the Army, U.S. Army Corps of Engineers and the
U.S. Environmental Protection Agency (June 25, 2024).
\31\ Michael L. Connor, Assistant Secretary of the Army; Radhika
Fox, Assistant Administrator U.S. Environmental Protection Agency,
Joint Coordination Memorandum to the Field Between the U.S. Department
of the Army, U.S. Army Corps of Engineers (Corps) and the U.S.
Environmental Protection Agency (EPA) (Sept. 27, 2023).
---------------------------------------------------------------------------
Examples of the Agencies' Overreach After Sackett
It is unfortunate that the Agencies have returned to the playbook
that they used after the SWANCC decision. They are encouraging ``local
field agents to make decisions on a case-by-case basis.'' And, to no
surprise, what has emerged is ``a system of `vague' rules.'' \32\ The
Agencies are asserting federal jurisdiction over isolated wetlands by
relying upon man-made non-jurisdictional features like roadside
drainage ditches, pipes, culverts, and swales. The Agencies claim these
theoretical connections are enough to claim jurisdiction over isolated
wetlands, even when it is clear where the jurisdictional water ends,
and the wetland begins.\33\
---------------------------------------------------------------------------
\32\ Sackett, 598 U.S. at 665-66.
\33\ Sackett, 598 U.S. at 678-79.
---------------------------------------------------------------------------
For example, in Corpus Christi, Texas, the Agencies have asserted
jurisdiction over a wetland that is connected to a jurisdictional water
only by a non-jurisdictional 115-foot-long ephemeral drainage
ditch.\34\ Moreover, the ditch runs through two culverts before
reaching the jurisdictional waterbody. The Agencies provide that
wetlands can be considered adjacent ``when a channel, ditch, swale,
pipe, or culvert (regardless of whether such feature would itself be
jurisdictional) serves as a physical connection that maintains a
continuous surface connection between an adjacent wetland and a
relatively permanent water.'' \35\ In this matter, the Agencies
asserted jurisdiction because ``[t]he 115-foot length of the physical
connection via the ditch and the culverts is relatively short.'' \36\
---------------------------------------------------------------------------
\34\ Russel Kaiser, U.S. Environmental Protection Agency; Milton
Boyd, U.S. Department of the Army, Memorandum on SWG-2023-00284 (June
25, 2024).
\35\ Id. at 2.
\36\ Id. at 4.
---------------------------------------------------------------------------
Yet, in Sackett the Court held that the CWA extends to ``only''
those wetlands that are ``as a practical matter indistinguishable from
waters of the United States.'' \37\ Furthermore, it stated that a
wetland cannot be considered part of water of the United States ``even
if they are located nearby.'' \38\ In the above example, the wetland in
question is clearly distinguishable from the water of the United
States--there is no evidence that it is difficult to determine where
the waterbody ends and the wetland begins. Additionally, the Agencies
asserted jurisdiction because the distance between the wetland and
waterbody is ``relatively short''--in other words ``nearby.'' A clear
contravention of Sackett.
---------------------------------------------------------------------------
\37\ Sackett, 598 U.S. at 678. (emphasis added).
\38\ Id. at 676.
---------------------------------------------------------------------------
Similarly, in Camden-Wyoming, Delaware, the Agencies asserted
jurisdiction over two wetlands--Wetland #6 and Wetland #8.\39\ Wetland
#6 is 70 feet away from a jurisdictional waterbody and connected to it
by a non-jurisdictional 70-foot pipe. Wetland #8 is 350 feet away from
a jurisdictional waterbody and connected to it by a non-jurisdictional
350-foot swale.\40\
---------------------------------------------------------------------------
\39\ Russel Kaiser, U.S. Environmental Protection Agency; Milton
Boyd, U.S. Department of the Army, Memorandum on NAP-2023-01223 (June
25, 2024).
\40\ Id. at page 3.
---------------------------------------------------------------------------
Again, the Agencies misread Sackett. They implausibly assert that
``Under Sackett, the word `indistinguishable' is not a separate element
of adjacency, nor is it alone determinative of whether adjacent
wetlands are ``waters of the United States''; rather, the term (among
others the Supreme Court uses) informs the application of the
``continuous surface connection'' requirement.'' \41\ However, the
Court stated, ``In sum, we hold that the CWA extends to only those
wetlands that are `as a practical matter indistinguishable from waters
of the United States.' '' \42\ This is not an offhand comment or a
minor point, but the ``holding'' of the Sackett decision. And it
provides that the CWA extends ``only'' to those wetlands that are
``indistinguishable'' from jurisdictional waters. With respect to
Wetland #6 there is a wetland, then a pipe and then a jurisdictional
water. Clearly, the Agencies could distinguish between the wetland and
the jurisdictional water because there is a 70-foot pipe between them.
Similarly, with respect to Wetland #8 the Agencies could distinguish
where the wetland ended, and the jurisdictional water began--because
there is a 350-foot swale between them. Finally, with respect to both
wetlands the Agencies claim the distances to the jurisdictional waters
are ``relatively short.'' But as the Sackett Court stated, even
wetlands that are ``nearby'' cannot be considered part of the
jurisdictional water.\43\
---------------------------------------------------------------------------
\41\ Id. at 2.
\42\ Sackett, 598 U.S. at 678.
\43\ Sackett, 598 U.S. at 676.
---------------------------------------------------------------------------
Lastly in Snow, Ohio, the Agencies have asserted jurisdiction over
a wetland that is connected to a jurisdictional waterbody through a 95-
foot non-jurisdictional stream and then 100 feet of a second wetland
that abuts the jurisdictional waterbody.\44\ As with the other examples
above, the Agencies pay no mind to Sackett's holding that to assert
jurisdiction over a wetland, the Agencies must prove that it is
indistinguishably part of the jurisdictional water body. In this
example, the Agencies could distinguish the wetland in question, a non-
jurisdictional stream, a second wetland, and the jurisdictional
waterbody.\45\ In violation of Sackett, the Agencies declare that 195
feet is a ``relatively short'' distance.\46\
---------------------------------------------------------------------------
\44\ Stacey Jensen, U.S. Environmental Protection Agency; Milton
Boyd, U.S. Department of the Army, Memorandum on LRB-2023-00451 (Sept.
3, 2024).
\45\ Id. at 4.
\46\ Stacey Jensen, U.S. Environmental Protection Agency; Milton
Boyd, U.S. Department of the Army, Memorandum on LRB-2023-00451
(September 3, 2024).
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While these are only four examples, it is evident that the Agencies
are not faithfully implementing the Court's directives. If home
builders and the residential construction industry cannot understand
the regulatory framework under which to operate, how can we expect to
achieve housing production to address our national affordability
crisis? Safeguarding the environment and building homes do not have to
be mutually exclusive.
Conclusion
Thank you, Chairman Rouzer and Ranking Member Napolitano, for
convening this important hearing and allowing NAHB to share our views
on how the Agencies' WOTUS implementation post-Sackett is impacting our
industry's ability to increase the production of quality, affordable
housing. NAHB stands ready to work with you and members of the
Subcommittee to achieve thoughtful, effective policies to address these
concerns and expand the availability of attainable, affordable housing
for all Americans.
NAHB commends Chairman Rouzer and this Subcommittee for
spearheading H.R. 7023, the Creating Confidence in Clean Water
Permitting Act. This was a welcome step in improving the process. As we
continue to move forward, NAHB urges Congress to consider the following
improvements to the CWA Section 404 permitting:
If the Agencies continue to refuse to provide regulatory
definitions for either ``relatively permanent'' water (RPW) or
``continuous surface connection'' (CSC), Congress must step in and
either define these terms, or conversely identify features that cannot,
by statute, be considered either a RPW or CSC such as:
+ Ephemeral features that only flow in direct response to a
rainfall event cannot be an RPW.
+ Man-made features (i.e., pipes, ditches, culverts, etc.) used
to connect otherwise isolated wetlands to jurisdictional features.
+ Groundwater, including shallow subsurface flow.
Obtaining AJDs is an essential step during CWA 404
permitting process. Congress must ensure that the Agencies prioritize
responding to AJD requests. As stated in this written testimony, the
regulated community is being maneuvered toward the PJD route. This is
concerning because property owners are surrendering their land to
federal regulation in an effort to receive quicker permitting. PJDs are
also non-binding which means that they are not appealable nor subject
to judicial review. Homebuilders must accept their permit as is or
refuse the permit and abandon their project--costing upwards of
hundreds of thousands of dollars in sunk development costs.
The past three presidential administrations have turned
project proponents into regulatory ping pong victims. With each
administration crafting their own WOTUS rule, home builders who may
have held AJDs from a prior administration, have had their validity
denied not because of changes in the environmental conditions found on
their property, but rather due to court rulings or changes in
administration's priorities. NAHB recommends that regulatory changes to
the definition of WOTUS should not invalidate an AJD during its
lifespan. Further, we recommend that AJDs be durable for 10 years, as
envisioned in the Creating Confidence in Clean Water Permitting Act.
I appreciate the opportunity to discuss these critical issues.
Mr. Rouzer. Thank you very much.
And I thank all of you for your great testimony.
Ms. Pokon, I appreciated hearing your testimony about the
important role that States play in regulating and implementing
water-quality standards. And as mentioned in my own opening
statement, this is the key part of the Clean Water Act that
many people choose to ignore.
What has the State of Alaska's experience been post-
Sackett, and what are you hearing from the Army Corps of
Engineers in Alaska?
Ms. Pokon. Thank you, Chairman.
We certainly have been watching the 401 certifications come
through to kind of get a sense for if there has been a change
in the Army Corps of Engineers' implementation of the 404
program. And, not seeing any clear indicators, we have met with
our district office. The message that was delivered to us was
essentially that, in Alaska, nothing has changed. Nothing.
They did tell us--we pressed for some specifics, like, are
there some general principles that are being applied? Is there
something you can share with us about what the standard is? And
it sounded like--well, they repeated that they are determining
it on a case-by-case basis.
They did share that, for the North Slope of Alaska, which
is an area about the size of Utah, that they consider much of
that area to be jurisdictional because of permafrost wetlands.
Now, those wetlands aren't forming because of relationship with
a jurisdictional water, those wetlands are forming because the
upper layer of permafrost is melting.
And so, you have this massive area that, just by virtue of
being a wetland that is adjacent to a wetland that is adjacent
to a wetland is adjacent to a wetland that is then abutting a
navigable water body.
There doesn't seem to be any limit to this contagion, that
as long as on the surface there is an ecosystem that can be
characterized as a wetland--there are saturated soils--the
Corps of Engineers will claim jurisdiction over that.
They also made some comments that called into question
whether or not they are even looking for surface water or
whether or not they are looking for any flow of water to
indicate connectivity of the water between the wetland and a
jurisdictional water.
Mr. Rouzer. Thank you very much. I wish we had more time.
Ms. Briggs, you talked about the challenges that your
membership is facing. Of course, agriculture is taking it on
the chin on any number of fronts that you look at.
Can you talk a little more specific to that and how this is
such a challenge for our American farmers who are feeding and
trying to clothe not only us but the rest of the world?
Ms. Briggs. Yes. Thank you, Mr. Chairman, for the question.
And I will remind everyone that food security is national
security. So, our farmers and ranchers have the most important
job in the world.
WOTUS continues to be an issue--the problems that I already
outlined, the lack of clarity with the rulemaking, and now no
implementation guidance. They are not giving our members the
roadmap on how they are expected to follow the law. That is
really all my members want to know: What is in, and what is
out?
But a lot of people like to say, ``Well, farmers have all
of these exemptions. Isn't that nice? And they don't have to
comply with the Clean Water Act.'' That is absolutely not true,
because the exemptions that have been provided are not clear.
An exemption is only as good as how clear it is.
So, I don't understand how the agencies are hiding the ball
on implementation. I don't understand why they will not come
back and clarify these terms post-Sackett. And our farmers are
really hurting out there because of it.
Mr. Rouzer. Yes.
Mr. Messerly, you touched on regulations and the cost to
building a home, which obviously translates to cost to
homebuyer.
How much extra cost are people paying for when they
purchase a home just simply due to regulation, beyond just
WOTUS but WOTUS included?
Mr. Messerly. Well, thank you, Chairman Rouzer. Good
question. Cost--and as a mitigation sponsor, we can speak
towards that.
So, just as a for-example, in Ohio, the typical applicant
mitigates at a ratio of two times of what they impacted. A
simple nationwide permit, which is impacts of less than one-
half acre, would require 1 acre of mitigation. An acre of
mitigation in Ohio would be about $70,000, on average,
sometimes a little more, sometimes a little less. So, when you
apply that to the cost of a small business project or a
residential construction project, that cost can be
overwhelming.
That cost for the mitigation does not include those costs
that are affiliated with retaining an attorney, an engineer, a
surveyor, a wetlands biologist, not to mention the time of
processing the permit. A substantial amount of time passes.
These are things that the permit applicants have to bear the
cost of upfront, and that can really be stifling. And by that I
mean, that is not something they have a loan for. This is
something they are paying out of pocket until they secure that
permit and the project can be implemented.
There are a lot of permit applicants that never get
submitted. They die before they ever get there just because of
the overwhelming cost.
Mr. Rouzer. Yes. Those that scream about affordable
housing--and we all want the most affordable housing possible--
are the same ones who put all the regulations in place that
keep it from being affordable.
Anyhow, just an editorial comment.
I yield to my good friend, Mrs. Napolitano.
Mrs. Napolitano. Thank you, Mr. Chair.
Ms. Rowan, you testified the impacts of the Sackett
decision are particularly stark in many Western States, such as
Colorado, where water is both increasingly scarce and vital to
long-term economic, environmental, and social health of our
communities.
I believe that every-State-go-it-alone approach is
inconsistent with congressional intent on the Clean Water Act
and will likely result in increased costs and decreased water
quality available for our communities.
What are your perspectives? Do you agree?
Ms. Rowan. Thank you, Ranking Member Napolitano. Yes, we
agree.
Colorado's a headwater State, and our water flows to 17
downstream States, and protecting water quality is very
important.
I think an example of that, a recent example, is our work
with the State of Kansas. We have been working to address
salinity issues across the Arkansas River--``Our Kansas
River,'' as they call it in Kansas--on both sides of the State
line, particularly focused on protecting agriculture.
Mrs. Napolitano. And my State is currently dependent on
other upstream States for much of its municipal agriculture and
industrial water supply.
I applaud your State's efforts but recognize that not all
States prioritize or invest in protecting interstate sources of
water. What is the likely consequence if bordering States face
different priorities on protecting what are, in essence, shared
multistate water resources?
Ms. Rowan. Thank you, Ranking Member Napolitano.
I think one thing that we have appreciated about Federal
standards and other parts of the Clean Water Act that we
implement is that there is a consistent and uniform Federal
standard and it provides some level of protection.
I think what we hear from businesses is having a uniform
standard is good for business, and it provides the certainty
that the regulated community needs.
Mrs. Napolitano. Thank you.
What is the economic impact to American families,
businesses, and farmers if existing sources of potable water
fail to be protected, or worse, are eliminated due to neglect,
destruction, or pollution?
Ms. Rowan. Thank you.
I think one of the things that we have been really focused
on in Colorado is making sure that those impacts don't occur.
And that is why we were so quick to stand up enforcement policy
and work to pass this legislation in Colorado.
Mrs. Napolitano. Thank you.
I believe the question of who should ultimately be
responsible for protecting rivers, streams, and wetlands has
become hyper-politicized, and some parties now are unwilling to
engage in meaningful conversations involving this decades-old
issue. You have done a wonderful job on that.
Yet you discuss the success of your State in negotiating
with often-competing sectors within your State, including the
agriculture, water supply, construction industry, and the
conservation community.
Any advice for us in Congress to promote a meaningful
dialogue on this issue?
Ms. Rowan. Thank you, Ranking Member Napolitano.
I think we worked incredibly hard on getting common ground
across a variety of different interest groups, and one of the
key stakeholders of our process was Colorado's agricultural
community.
One of the things that we did in the legislation was to
adopt the 2020 Navigable Waters Protection Rule related to
prior converted cropland, which was a big desire by our
agricultural community.
We also worked very hard to define exclusions and
exemptions for irrigation ditches, which are the lifeblood of
agriculture in Colorado.
Mrs. Napolitano. Thank you.
Mr. Chair, I would like to introduce into the record----
Mr. Rouzer [interrupting]. Without objection.
Mrs. Napolitano [continuing]. Letters from American Rivers,
Audubon Society, Clean Water for All, National Wildlife
Federation, Southern Environmental Law Center, and Protect
Colorado Water Coalition.
Mr. Rouzer. Without objection, so ordered.
[Hon. Napolitano's submissions for the record are on pages
76-90.]
Mrs. Napolitano. Thank you.
I yield back.
Mr. Rouzer. The gentlelady yields back.
I now recognize Mr. Bost.
Mr. Bost. Thank you, Mr. Chairman.
So, now here we are, a year into the Biden administration's
new WOTUS ruling, and nothing has changed. There has been no
regulatory clarity, no real guidance, no communication with the
public. While the administration may be OK with this, there are
serious implications for landowners and industry stakeholders.
Ms. Briggs, you noted in your written testimony that
landowners can be fined up to $64,000 per day or receive jail
time for any clean water violation. I will repeat that again:
$64,000 or jail time. That is not small change for a simple
mistake or a misunderstanding. That is devastating to any
landowner or small business.
Now, Ms. Briggs, from a farming perspective, can you speak
to the challenges that the farmers have faced under this
administration's poorly amended WOTUS rule and how easy it may
be for a landowner to make a simple mistake and be in violation
and look at $64,000 a day and jail time?
Ms. Briggs. Yes. I mean, after the Biden administration's
rulemaking came out, then after Sackett, then after the
conforming rule, we heard--it was at a fever pitch, the amount
of confusion and concern and uncertainty that we were hearing
from our members.
And it is incredibly easy for our members right now, under
this regulatory regime, to unknowingly break the law and be
subject to all of those penalties that can, frankly, put a
member out of business. I mean, we represent so many small
businesses who don't have the ability to absorb those kind of
costs. And it is $64,000 per day for every noncompliance on the
farm field. So, that can add up quickly, and it can be
absolutely devastating.
But with this level on uncertainty, it is unfair to our
landowners. And, again, I just don't understand why the
agencies won't come out, clearly tell landowners what the rules
of the road are.
It is like--I like to take my kids to the pool every now
and then, and it is like that pool sign where it says all the
rules. And it is, you know, no jumping, no splashing, no glass.
And then at the bottom, it says, if you violate these rules,
then you will lose your membership to the pool.
Well, imagine that is the sign for our landowners, but all
of the rules have been blacked out, and at the bottom it says,
you could be subject to $64,000 a day or jail time. It just
doesn't square.
Mr. Bost. Well, welcome to our world, because it is every
administrative body under this administration.
At any rate, Mr. Messerly, based on your testimony and what
I am hearing from my constituents, I think we can both agree
that the permitting process here is a mess. It is costly. It is
slow. It is killing infrastructure projects. Thousands of small
projects die before the builders even had the chance to apply
for their permit. And a simple nationwide permit to impact just
one-half acre of wetland can easily cost upwards of hundreds of
thousands of dollars.
You have shared that, at your nonprofit, you have worked
with over 1,500 permit applicants developing infrastructure
projects. Can you share with us real-world examples where WOTUS
permitting has significantly delayed or even caused a
permitting applicant to just walk away?
Mr. Messerly. Good question. And I would be glad to share.
I don't have clearance from particular permit applicants to
share any names or anything, but it happens quite often.
Usually, it is small-business owners that call, and they just
never even bother to apply after they talk with me and find out
what the cost is.
But there are times where it is even large companies that
want to develop projects. One project stands out in my mind,
northeast Ohio. The applicant wanted to impact wetlands to
build a large commercial operation. Their siting criteria
needed it to be near an interstate highway, needed it to be
within a certain distance of the public. They wanted to site it
in an urban area for traffic, for business.
And that particular project, it was determined that this, I
will say, moderate-quality wetland that was surrounded by a
railroad, industrial park, and an urban arterial highway was
too good. It was determined to be regionally important and
therefore could not be impacted.
The applicant withdrew the permit, built the project about
100 miles away--different city, different community. The
community lost out on the job creation.
Mr. Bost. I think what we are seeing here today--and I know
my time is up, Mr. Chairman.
But what we are seeing here today is what we have known for
a long time about our WOTUS rule. It is ridiculous, not being
able to know where the Government lies and what in the world
they can do to you and when they can do it. And that is a
shame, because it stifles growth and scares many of our
landowners.
Thank you.
With that, I will yield back.
Mr. Rouzer. Mr. Larsen.
Mr. Larsen of Washington. Thank you, Mr. Chair.
First off, I appreciate the concerns Members have about a
lot of things that Congress does and the Supreme Court does and
the administration does, but we don't need to be overstating
impacts.
In fact, in nearly 3 years, the Bipartisan Infrastructure
Law has provided $480 billion to 60,000 projects that benefit
every congressional district in the country. The AGC was here a
few weeks back to testify that nearly every county in the
country has a project being built because of the Bipartisan
Infrastructure Law. The numbers I just cited are corroborated
by ARTBA, the road builders.
So, to make broad statements that projects are getting
killed every day because of WOTUS does not actually line up
with the facts. I know fact-checking around here gets a
little--people a little dicey, but those are facts. I am sure
folks will have some things they want to say about what I said
here, and that is OK, but let's not overstate the challenges or
overstate the problem itself.
Because there is another set of the problem that the
Sackett decision brings, and that is undermining just the basic
principle of cooperative federalism that Ms. Rowan discussed in
her testimony. Before the Clean Water Act adoption in 1972, an
individual State's efforts to protect the health of its waters
could be undermined by the actions of its neighboring States.
And so, Ms. Rowan, what challenges did Colorado face in
protecting its water resources from interstate pollution?
Ms. Rowan. Thank you, Ranking Member Larsen.
We are a headwater State, and so, water from Colorado flows
to downstream States, 17 of them. And protecting our water
quality within Colorado but also in the water that is delivered
downstream is of critical importance, and it is something we
take very seriously.
Mr. Larsen of Washington. Have any of these States written
a thank-you letter to Colorado for protecting the cleanliness
of their waters yet?
Ms. Rowan. Thank you, Ranking Member Larsen. No, we haven't
received any letters to that----
Mr. Larsen of Washington [interrupting]. Would you
substitute a thank-you letter for them taking action in their
own State to increase their water-quality programs?
Ms. Rowan. Thank you, Ranking Member Larsen. You know----
Mr. Larsen of Washington [interrupting]. You don't need to
thank me for anything.
Ms. Rowan [continuing]. We closely collaborate with a
number of our States through implementing the 402 program, and
have for years, and have regular dialogue. We do have an active
partnership right now with the State of Kansas really focused
on----
Mr. Larsen of Washington [interrupting]. Yes, you mentioned
that.
Ms. Rowan. Yes.
Mr. Larsen of Washington. Well, I wouldn't want to replace
a thank-you letter with these States actually taking actions as
opposed to doing nothing because Sackett passed and using
Sackett as the excuse to not protect their waters.
And it just seems to me, returning to a pre-Sackett system
of uniform Federal protections would be better than a patchwork
approach, which is what we have.
But if we are stuck with it for now, how can the Federal
Government better assist States to protect their wetlands and
downstream water resources, Ms. Rowan?
Ms. Rowan. Thank you, Ranking Member Larsen.
I think we do appreciate some Federal standards. It does
provide some level of protection for States to shoot for. And
that uniformity is appreciated. And, again, we think that this
provides regulatory certainty to our industries and development
and economy in Colorado.
Mr. Larsen of Washington. Yes.
My first hearing on--and I mention this all the time to the
committee--my first hearing on the waters of the U.S. was back
in, I think, 1824. No, it wasn't that long ago. It was in the
mid-2000s, I think. And anyone who thinks that this hearing is
going to resolve this issue today or even that the Sackett
decision is the last word on this, I just don't think history
backs that up, frankly, right now, either congressional
history, administration history, or Supreme Court history.
Had the Supreme Court then decided to give us one decision
instead of two decisions, with Rapanos and with SWANCC, then we
probably wouldn't be here. But they did. And I just think we
will be at it again. And I look forward to the next 19 hearings
we have on WOTUS to resolve this.
Thank you very much.
I yield back.
Mr. Rouzer. Fun, fun, fun. Mr. LaMalfa.
Mr. LaMalfa. Thank you, Mr. Chairman. I appreciate the
opportunity to have this hearing, whether it takes us 1 or 19
more because, indeed, the Clean Water Act and many other
environmental measures have been weaponized to stop people from
doing most things.
Look at the Sackett decision itself. They wanted to build a
stock pond on their own land and were thwarted for many years
and much pain. And if you want to look at a Clean Water Act
problem, I would invite the panelists and everybody else to
take a look at the Klamath River post-dam removal and how nasty
and mucky and silty that river is with little regard towards
what would really happen. They were just so hot to get those
dams out.
Anyway--so, I guess this would be tilted towards Ms. Briggs
and Mr. Messerly as well. In my home State of California, where
it is near impossible to build housing in areas where it makes
sense, open areas like that, except for in flood plains and
where agricultural land is, because there doesn't seem to be
any critters there that they care about.
So, Mr. Messerly, for example, in Butte County, we have
something called meadowfoam, and they seem to think there are
several different species of meadowfoam. So, if it grows in
what's called a vernal pool, it holds water for a few minutes
after a rain, that is a wetland, and that is an endangered
species. Meanwhile, they are growing meadowfoam up in Oregon as
a seed oil plant, and so, you have this. But prime areas where
housing could be built outside of flood plains and outside of
agricultural land is unusable.
So, speak about what you might know about California's
situation on trying to build housing, especially since houses
in California are starting to average $500,000, $600,000 in
most cases to build anything, if you can build it, such as
around Chico, California, which they got shut down once again.
Mr. Messerly. Not sure I quite followed all your question.
Mr. LaMalfa. Well, I threw a lot out there. Just talk about
availability of building homes and what it is doing to the
price structure, especially in California for normal people.
Mr. Messerly. Yes, and, in an agricultural area, and
Courtney could address this as well, but the question would be:
Are these waters of the United States, is it prior converted
cropland or not? And from a species standpoint, I am not
familiar with the species in California, but this one that you
are talking about sounds like it could be very difficult to
identify. But it is also rare, and that makes it even harder to
identify.
Mr. LaMalfa. Well, it is not rare in Oregon if you are
harvesting the stuff, but it is called meadowfoam, and it is
fairly prolific. But it seems to be protected, and it prevents
homes from being built or other stuff on suitable land.
Mr. Messerly. And so, that ties in a whole another topic,
the Endangered Species Act. And that intertwines because of the
nexus of the 401 and 404 permitting programs, you get pulled in
by the ESA as well.
Mr. LaMalfa. Well, they use the Clean Water Act in order to
have the waters of the United States apply to every vernal
pool, which some of these grow in.
Mr. Messerly. Yes.
Mr. LaMalfa. Ms. Briggs, you have heard the situation here
where land that had been idle but had been farmed extensively
in the past but for some years was idle, and then you go back
to start farming it again and you are in trouble from the EPA,
along with the Army Corps for somehow violating the Clean Water
Act--which I would tell you, when this was passed back in the
1970s by Congress, if Congress would have passed a bill that is
being interpreted the way it is now to stop any type of
development or farming, those Members of Congress would have
gotten thrown out on their ear for passing such a bill. It has
been reinterpreted time and time again.
So, Ms. Briggs, talk about how unfair that is that you have
had farmable land and that they keep changing the
interpretation of the WOTUS rule. From 2008, it was changed by
Obama up until 2015, then it only applied to half the country,
and then President Trump was able to change it in 2020, which
was promptly rescinded by Biden in 2021, which led us to the
second case in 2023.
How much sense does this make trying to farm under all
these conditions? You talk about the pool rules.
Ms. Briggs. Oh, it is incredibly difficult with the
pendulum swinging back and forth and the ping-ponging of rules
based on changes of administration. There is no clarity, there
is no certainty for our members.
So, they just don't understand where that bright line of
jurisdiction is. It doesn't exist under these rulemakings. And
you talk about land that has been idled in California, again,
the ag exemptions are only as good as how well they are
written.
And we have problems with prior converted cropland, we have
problems with the exemptions that are listed in 404(f) because
when you talk about normal farming practices and that being
exempt under 404, right behind it is a recapture provision that
essentially says you are exempt unless we tell you you are not.
So, no farmer has certainty in using any of those
exemptions, and, unfortunately, we have seen farmers burned by
both compliance under Swampbuster and the Clean Water Act.
Mr. LaMalfa. So, the list of rules always has----
Ms. Briggs [interrupting]. An asterisk.
Mr. LaMalfa. At the end of the rules: ``and any other thing
we feel like enforcing you on,'' which is the one they gig you
on.
Ms. Briggs. There is always an asterisk associated with ag
exemptions. We can take this away from you at any time if we
feel like it. I am paraphrasing there.
Mr. LaMalfa. You are right. Well, they are sure good at
gigging us, but I see them not very on time producing reports
and things we ask for here, or they are heavily redacted like
was talked about.
So, Mr. Chairman, we have a lot more to do on this. Thank
you.
I yield back.
Mr. Rouzer. Ms. Norton.
Ms. Norton. Thank you, Mr. Chairman. First, let me say I
strongly opposed the Supreme Court's decision in Sackett v.
Environmental Protection Agency. I urge this committee to take
up legislation to overturn the Sackett decision and restore
Clean Water Act protections for the Nation's rivers, streams,
and wetlands.
Ms. Rowan, what is your view of the pace of the
implementation of the conforming waters of the United States
rule?
Ms. Rowan. Thank you, Congresswoman. Our law in Colorado is
really filling the gap left by the Sackett decision that was
then taken into account in the conforming rule. So, that is
really what we are focused on is filling that gap.
We have worked really closely with the Corps of Engineers,
both after the Sackett decision and as the rule has been
implemented to understand what they are taking jurisdiction
over, and then what would be, in our purview, to work on
permitting in the future, and that has been a very
collaborative relationship. And they have provided a lot of
good information for us as we have been navigating the process.
Ms. Norton. Ms. Rowan, do you support legislation that
would overturn the Sackett decision and restore protections
under the Clean Water Act, and if so, why?
Ms. Rowan. Thank you, Congresswoman. I think returning to a
pre-Sackett regime would provide a uniform level of protection
across the United States. We have found that businesses and
regulated entities really like certainty and especially when
they are working across different State lines and the different
businesses. It does provide them the certainty from a
regulatory perspective.
Ms. Norton. Thank you. And, again, I urge this committee to
overturn the Sackett decision.
And I yield back.
Mr. Rouzer. Mr. Burlison, you are recognized for 5 minutes.
Mr. Burlison. Thank you, Mr. Chairman. Ms. Briggs, last
year, the Supreme Court, obviously, struck down the decision,
but it seems that the EPA is completely ignoring it, from your
testimony and everyone's testimony here. And there are some
examples of this. The EPA prevented Dan Ward, a farmer in Iowa,
from building a pond on his land. Robert White from North
Carolina filed a suit against the EPA because they are ignoring
the rule of law from the Supreme Court and still regulating his
land.
So, even though the Sackett decision should be preventing
the EPA from imposing these, they are still acting as if the
decision doesn't exist.
So, the question is, what can we do? What can we do to
ensure that the EPA is following the decision of the courts?
Ms. Briggs. Well, you can pass a law codifying the Sackett
decision. I think that that would be helpful if it was in the
statute.
But I just want to take a minute because you mentioned
specific instances of people being harmed. I don't think that I
am exaggerating the impact that this is having on WAC members.
I hear about people who have to walk away from projects, walk
away from revenue for their small business, walk away from
creating jobs in rural communities because of this regulation.
And frankly, this is one of those regulatory rulemakings
that makes the next generation of farmers not want to get in
farming. So, there is a real ripple effect here that I think
folks are failing to acknowledge.
Mr. Burlison. One of the issues that we faced in Missouri
was that you have, you know, your State department that is
enforcing a lot of the regulations, because the EPA doesn't
have the manpower or the resources to do so.
So, with a little bit of money, they influence and require
the State resources to enforce them. In our State, it is the
Missouri Department of Natural Resources. I assume that is the
way it is in every State to some extent.
And the question that I have is that what we experienced is
that the EPA may not have a rule--they may not pass anything
formally, they may not go through the rulemaking process.
Sometimes they will just issue a guidance document that then
that guidance document the State enforces as though it is a
rule. And yet, no one elected to anything made a change. I
wonder if you could comment on that.
Ms. Briggs. Yes. So--thank you, Congressman. So, the field
memos that I mentioned in my testimony, again, they give you
little bits and pieces about how they intend to implement this
rulemaking. And I think if you take it all collectively, it is
really a rulemaking hiding in plain sight. Like, it has the
effect of a rulemaking.
Mr. Burlison. Right.
Ms. Briggs. And the fact that that has not gone through
notice and comment, it hasn't gone through stakeholder
engagement is really a problem. So, the fact that they are
taking these guidance documents and applying them as rulemaking
is very concerning.
But they will not hand over the implementation guidance
that is being disseminated to the Corps districts. We know they
exist.
Mr. Burlison. You have to get FOIA requests for that or----
Ms. Briggs [interrupting]. This is the response we got
[indicating document]: 1,123 pages, most of it is redacted. I
will point you--and I am happy to send this to you, to one
page, where they talk about: here is the implementation
guidance that Corps districts should be using. Here is the
SharePoint. And they black out the SharePoint.
There is evidence in here where they say: do not share this
with the public. Read the FOIA response. I am happy to share it
with the committee.
Mr. Burlison. So, there is no transparency at all.
Ms. Pokon, I can see that you might have some thoughts on
this, how the State is basically--the States are being
leveraged to be the ``heavy,'' to be the enforcer for the EPA
when there is no real actual laws or elected officials
involved.
Ms. Pokon. I'll say, as a State agency that works with the
EPA both in implementing the Federal program, but also in
implementing our own, I haven't seen the guidance that has been
provided to the Corps of Engineers. So, I don't know if, when a
permittee comes to our agency, if I need to issue them a State
permit under State authority or if they should be getting a
Federal permit under the section 402 program.
And I think that, while we implement the same water quality
standards statewide, that that can matter for a lot of
different reasons. I might take a different enforcement
approach with an entity if I have more flexibility and support
them getting into compliance, rather than having to act in a
way where we fear the EPA is going to come crashing in over our
shoulders and enforce over us.
I also have more flexibility in adjusting specifics of the
program in a timely way to support facilities that need to
operate. When we have to send things to our regional office for
approval, it can be quite a lengthy process to get something
finalized.
Mr. Burlison. Thank you.
I yield back.
Mr. Rouzer. Ms. Scholten, you are recognized.
Ms. Scholten. Thank you, sir.
Thank you to all of our witnesses for being here today.
This is an incredibly challenging time. I serve the great State
of Michigan, including miles of beautiful west Michigan
coastline. One of the largest freshwater estuaries in the
entire country, the largest river system in the State of
Michigan, all within my district. To say this is an essential
conversation is truly an understatement.
Ms. Briggs, while I agree with you that particularly in our
ag community, we are experiencing incredible uncertainty, the
Sackett decision has undermined our ability in significant and
meaningful ways to protect this precious nonrenewable natural
resource.
Despite State-level efforts to bolster water regulations,
there is no guarantee that our neighbors will pursue the same
protections under the Sackett decision, as water can cross
State lines. We see that in the Great Lakes region as clear as
when you pull up a map.
This ruling may ultimately hinder Michigan's efforts--we
are one of three States which has been designated the authority
to govern our own wetlands to enforce those laws.
Ms. Rowan, Colorado has similarly sought to maintain strong
water standards at the State level. Can you speak to the burden
States that have led in safeguarding their waters must carry
without strong and consistent Federal protections post-Sackett?
Ms. Rowan. Thank you, Congresswoman. So, I think an
immediate need for our State, again, was making sure that the
uncertainty that was left behind didn't hinder economic
development and progress. And so, we had to really get creative
quick and develop an enforcement policy.
And we are fortunate enough to have our legislature move
forward, based on a lot of stakeholder support and common
ground for a solution in Colorado that can hopefully withstand
some of the back-and-forth that we have seen at the Federal
level.
And I do think that one burden that we are facing is that
we had to put State dollars together to fund this program and
be able to issue timely permits in the ways that our regulated
community deserves and desires. And so, that is when big impact
is a financial burden.
Ms. Scholten. Thank you. As I mentioned, Michigan is home
to the largest freshwater estuary system in this region,
arguably in the world, considering the Great Lakes being the
largest reservoir of freshwater. Also home to 275,000 acres of
Great Lakes coastal wetlands, which are incredibly biologically
diverse and imperative to the health of the larger Great Lakes
Basin.
However, these coastal wetlands connect to groundwater
sources and may be at risk as the groundwater connects below
the surface, not meeting the post-Sackett definition of waters
of the United States.
Again, to Ms. Rowan, can you elaborate on how essential
these wetlands are in ensuring water quality standards and
healthy habits, as well as how Sackett may harm critical
groundwater sources linked to these wetlands below the water
surface?
Ms. Rowan. Thank you, Congresswoman. Coming from an arid
West State, our water is very important and valued, and
wetlands provide a very critical way to--and a natural solution
for filtering pollutants and protecting downstream water
supplies and also have an impact on protecting our groundwater
sources which are used for a variety of ways in Colorado: for
agriculture, drinking water.
And so, it is just vital that we did find a way to protect
this resource in Colorado.
Ms. Scholten. Thank you. I invite anyone else to offer
comments in the remaining few seconds that we have.
Ms. Pokon. Could I add----
Ms. Scholten. Yes.
Ms. Pokon. Thank you, Congresswoman. I empathize with the
concern over State resources and having adequate funding and
applaud Colorado for making that investment.
I would add, though, that I don't know that--so, under our
402 program, for example, which is where the Federal Government
has jurisdiction--and we are implementing a Federal program--
funding is grievously short currently. And so, for our program,
for example, we get about--I don't know--$1 million, $1\1/2\
million through EPA and Federal funding for that program, and
then we invest $5 million of State funds.
So, I think a lot of States are already providing an
investment in protecting their waters. And so, I don't know
that the post-Sackett world is necessarily that dramatic of a
change, but I do think that if EPA and the executive wanted to
better support States in protecting our waters, that funding
the Federal programs that we are implementing would be a good
step in that direction.
Ms. Scholten. Thank you. I appreciate that.
Again, without clean water, we are not going to be able to
enjoy the incredible apples, blueberries, asparagus, and the
vital ag industry that we have. Again, believe me, I hear you
on the uncertainty. Our farmers are existing in the margins
right now.
This is a serious issue that demands a serious response
from legislators on both sides. Thank you again for your
testimony today.
I yield back.
Mr. Rouzer. The gentlelady yields back.
Ms. Maloy, you are recognized.
Ms. Maloy. Thank you, Mr. Chairman. I have been sitting
here listening to this, and I have done a lot of work in
permitting and project planning in my career, and it seems like
a lot of the conversations about this start from the assumption
that if the Federal Government isn't managing something, if
they don't have jurisdiction over something, if we don't define
it as WOTUS in this particular instance, that it is going to
get destroyed.
And I appreciate all of your testimony because I hear all
of you saying that we are actually doing a pretty good job of
managing in the States and even in industries and that we don't
have to start with the assumption that the Federal Government
isn't doing it. It won't be done correctly. And I like that
because Government is a blunt instrument.
And one of the other things I am hearing is that people who
are required to comply with this, which is everybody, don't
know when they are in compliance. And because the full power of
the Federal Government is behind this, that is a really scary
situation for someone to be in.
So, I am going to filibuster here for a second, and then I
do have questions.
So, I heard from my constituents that the Corps of
Engineers released a 143-page manual to its people in order to
help them determine when someone is in compliance. If you are
at the Corps of Engineers and you have to have a 143-page
manual to determine compliance, it really seems like that is
going to be a problem for a family that wants to build a stock
watering pond on their land. They are just not going to be able
to make that determination. But they could be facing potential
jail time and the kind of fines that nobody can actually
afford.
And then I represent Utah, and in Utah, we have a lot of
ephemeral streams. We get snowmelt like you do in Colorado and
Alaska, and it runs downhill. And if we have a good snow year,
there might be water in places we don't normally have water,
and if we have not a great snow year, there is not much water.
And it makes it really tough for people to figure out how to
apply these definitions to places in Utah.
And I have a responsibility to represent my constituents
who can't figure out with a 143-page manual and a bunch of
letters from agencies, whether they can move forward on
something.
So, my first question--and it is for all of you. We are
going to start with Ms. Pokon and go down the list.
In your experience, do these long processes of getting
permits create better outcomes?
Ms. Pokon. I think I can confidently say that the process
could be better streamlined, particularly where there is a
Federal intersect. As I mentioned earlier, if we want to adjust
our approach based on site-specific circumstances or other
conditions that are unique to a facility or to a location, that
can be a quite lengthy process working with the Federal
Government, so lengthy that often it just doesn't work for the
facility that needs to be able to operate.
So, then they are faced with either not operating and maybe
giving up the business plan, or operating in noncompliance,
which also isn't a good option that they want to follow through
with.
So, yes, I think the process could be improved. I also
think that States tend to be a little bit more nimble, and we
have the awareness of a fuller totality of circumstances that
are affecting our facilities and our residents.
Ms. Maloy. Thanks. So, I am going to put you down as a no,
it is not actually creating better outcomes. It is just a
lengthy process.
Ms. Rowan?
Ms. Rowan. Thank you, Congresswoman. I do believe that
there are good outcomes from the permitting process. I think
when it comes to our wetlands and seasonal streams, what we are
talking about here is kind of losing chunks of them in their
entirety, and it is hard to get them back.
So, I do think that the permitting process helps protect in
that regard. I think also in Colorado our history has been that
a vast majority of the permitting proceeds under the nationwide
and regional general permits, which----
Ms. Maloy [interrupting]. I am going to rush you a little
because I am almost out of time. I had a couple more questions
I wanted to ask.
Ms. Briggs, does the length of the permitting process help
the outcome?
Ms. Briggs. No.
Ms. Maloy. Thank you. Mr. Messerly?
Mr. Messerly. No, ma'am.
Ms. Maloy. Thank you. So, it seems like the Court made a
move to limit the jurisdiction of these agencies, said they are
overreaching in Sackett. And then in light of the Chevron
decision, it seems like the Court is signaling that they don't
want agencies to keep overreaching their authority.
We are sitting here talking about how agencies are trying
to go around that and redefine it, and that they are defining
their authority as if we have jurisdiction, then people are
safe. I just don't think that is true.
My last question, if you guys can answer it really fast, is
how much do you think it is costing people you represent in
time and money to get these permits?
And we are going to start with you, Mr. Messerly, because
we are going to run out of time. Really quickly.
Mr. Messerly. A lot. A basic permit I mentioned earlier,
$70,000 for mitigation; consulting fees, attorney fees, et
cetera, on top of that easily puts it over $100,000 just for a
general permit.
On average, we typically see applicants needing upwards of
2 acres of mitigation. So, it just escalates from there.
Multiply it. So, it is very expensive.
Ms. Maloy. Thank you. I want to hear your answer, Ms.
Briggs. I am out of time. I don't know how 5 minutes goes by so
fast.
Ms. Briggs. I would just say the cost of delay.
Ms. Maloy. Yes. I am going to follow up with all of you in
writing for answers on this and the other question I didn't get
to because I think this is really important that we get
answers. Thank you.
Mr. Rouzer. The gentlelady yields back. Ms. Hoyle.
Ms. Hoyle of Oregon. Thank you very much. My questions are
for Ms. Rowan. Thank you for being here today.
My questions are because, Oregon, like Colorado, we have
State protection laws that now differ from the Federal laws,
and we are all trying to work out how we interpret these
things. So, as you have worked with the EPA and the Army Corps
while developing your program, what have you found most helpful
in the technical assistance that is provided, and where do you
feel like you could have better technical assistance?
Ms. Rowan. Thank you, Congresswoman. Thank you for that
question.
One of the things we did in crafting the legislation was
really hearing from our stakeholders about what is working,
about the current Federal process, and trying to get an
understanding of what not to take away, because they actually
like certain portions. And so--and the Corps was very, very
helpful, as were our stakeholders, in helping us understand how
exemptions and exclusions were--how they operate in Colorado.
And one of the things that we did with the legislation is
really have a more expansive set of exclusions and exemptions
for the variety of activities and water body types in Colorado.
So, they were very helpful in helping us understand how that
has worked historically.
I think another area where we are going to continue to work
really hard, and I think we have a unique opportunity as a
State, is how we do mitigation moving forward. So, I think that
is going to be critical as we stand up our new program.
Ms. Hoyle of Oregon. Thank you. Also, do you feel that you
have had the clarity provided that is necessary to determine
State versus Federal waters?
Ms. Rowan. Thank you, Congresswoman. We are really focused
on, again, filling the gap that Sackett left behind. And so,
the Corps has been working very closely with them to let us
know when a water in Colorado is not a WOTUS so that we can
work with those entities to make sure that they have what they
need to keep moving forward with their project under our
enforcement discretion policy and now as part of our permitting
program.
Ms. Hoyle of Oregon. And then, could you just go into
more--I know you have touched on this.
What has been the feedback and public perception for
affected parties and stakeholders of how WOTUS has changed in
your State?
Ms. Rowan. Thank you, Congresswoman. After the Sackett
decision, the Nature Conservancy did a public survey in
Colorado from voters from all political affiliations statewide.
And what that survey found was that 67 percent of those surveys
really wanted to see some State level of oversight to fill the
gap.
Ms. Hoyle of Oregon. Excellent. Thank you, and I yield
back.
Mr. Rouzer. Mr. Collins.
Mr. Collins. Thank you, Mr. Chairman. I am going to jump
right in. I mean, I have been jumping around like a jumping
bean, I think, here this morning.
Mr. Messerly, Home Builders Association. I just want to
start out, if you could give me some real-world consequences of
an ambiguous definition to WOTUS, and what does it exactly mean
for my constituents?
Mr. Messerly. So, Mr. Collins, make sure I understand your
question correctly. You are asking, what is the definition of
waters of the United States?
Mr. Collins. Well, I mean, it is ambiguous at best. So, I
mean, what are the homebuilders out there seeing, and how is it
affecting my constituents?
Mr. Messerly. Yes. The biggest effect, to be honest with
you, when you look at the definition of water of the United
States, the vast majority of the definition is very clear.
Navigable waters, Territorial seas, oceans.
In the 1890s, they defined----
Mr. Collins [interrupting]. What's that got to do with
homebuilding?
Mr. Messerly. When you get it down to--by the time you get
to the headwaters, where they are building houses, where they
are farming, where they are ranching, where they are mining:
those are where the rub is.
And those waters need to have a continuous surface
connection with a relatively permanent water.
Mr. Collins. So, when you get--when your builders are
getting permits and they don't know if the water is federally--
if the Feds have jurisdiction or the States, right?--that is
where we are going with this. So, what do they do? They just--
they bide their time and wait until they get a Federal
Government who we all know works at the pace of a snail going
backwards? Or they just give up, throw their hands up and say,
hey, let's just go ahead and pay everything we need to and get
this out of the way?
Mr. Messerly. Sometimes they give up and sometimes they
concede. Other times they walk away. My----
Mr. Collins [interrupting]. Does that actually cost the
homebuilder--the person buying the home at the end of the day?
Mr. Messerly. At the end of the day, that cost gets passed
on to that person living in that home.
Mr. Collins. You got any estimates or anything on what you
think it is costing? Does it add 20 percent?
Mr. Messerly. It could easily add that. If you are building
for a single residence, it could easily add more than that.
But you are talking, again, anybody from an affordability
standpoint, from a financing standpoint, every $1,000 of
increase in a house takes away 106,000 eligible borrowers that
could be borrowing money to qualify to buy that house.
Mr. Collins. And I would think right now with the way
mortgage rates are and the way that building construction
material costs are, that is pretty substantial.
Mr. Messerly. It is--it can be very overwhelming.
Mr. Collins. Over a rule that has affected building houses?
Mr. Messerly. Correct.
Mr. Collins. Which we really don't know what the rule is.
Mr. Messerly. There is some ambiguity, that is for sure.
Mr. Collins. Some ambiguity?
Mr. Messerly. Yes. And I would add----
Mr. Collins [interrupting]. That is putting it lightly.
Mr. Messerly [continuing]. I would add, I have never met
somebody----
Mr. Collins [interrupting]. I think you are being nice.
Mr. Messerly [continuing]. That is anti-environmental. They
want to protect the environment. They want to do the right
things.
I think why the WOTUS definition is so contentious is, is
the permitting program is broken, and the cost to comply with
the permitting program is excessive. So, it is almost a death
sentence when you get that notice that you have a waters of the
United States that you have to deal with.
Mr. Collins. I tell you what, I want to move to Ms. Briggs
just for what time is left.
I understand that many Waters Advocacy Coalition members
and organizations filed Freedom of Information Act requests to
obtain more information on how the agencies are implementing
WOTUS.
What kind of response did you receive from them?
Ms. Briggs. First, I just want to say that this WOTUS rule
is standing in the way of affordable housing, renewable energy
projects, projects that are benefiting communities like the
construction of schools, and environmentally beneficial
projects like the development of wetlands. I have heard from
many States that are wanting to build wetlands in order to
improve water quality, but they can't get through the 404
permitting process.
But to answer your question, we did get a response. Most of
it was redacted, and they, once again, failed to provide the
implementation guidance. We know it exists through the
documents. We know they don't want the public to know it, but
they have not handed over----
Mr. Collins [interrupting]. What was the reason for
redacting?
Ms. Briggs. They said it was deliberative, so, I don't
understand----
Mr. Collins [interrupting]. They are still deliberating?
Ms. Briggs. I don't understand why it is labeled
deliberate.
Mr. Collins. But this [indicating document] is the
guidance?
Ms. Briggs. Yes.
Mr. Collins. But it is not finished, because we are
deliberating?
Ms. Briggs. That is what they----
Mr. Collins [interrupting]. It is not classified, right? It
is just deliberative?
Ms. Briggs. They say it is deliberative. Therefore, they
are still deliberating over it, but it is being used in the
countryside.
Mr. Collins. Mr. Chairman, this is nothing but typical
overreach from the Federal Government who doesn't really care
what input anybody puts into anything or what anybody says.
They are going to do what they feel like they want to do and
try to hide whatever they can.
I would like to enter into record, if I could--this is the
1,200-page--mostly--581 pages, as a matter of fact, of redacted
pages of the response from the U.S. Army Corps of Engineers on
WOTUS.
Mr. Rouzer. Without objection, so ordered.
Response to Waters Advocacy Coalition's Freedom of Information Act
Request, Submitted for the Record by Hon. Mike Collins
The 1,128-page document is retained in committee files and is
available online at https://docs.house.gov/meetings/PW/PW02/20240911/
117592/HHRG-118-PW02-20240911-SD003.pdf
Mr. Collins. And I am out of time.
Mr. Chairman, I yield back. Sorry for going over.
Mr. Rouzer. Mr. Duarte, you are recognized.
Mr. Duarte. Thank you, Mr. Chairman. Thanks to the panel
for being here today.
Ms. Briggs, you work for American Farm Bureau. Farmers got
to farm land, and sometimes we take farming land out of farm
systems, maybe take wheat fields and graze them for a few years
or a few decades, depending on markets and business models and
the entity's desire to farm one crop or another, under one
cropping system or another.
So, right now, we are in a situation, and we are speaking
today about permit processing of the Army Corps of Engineers
and EPA that is almost nonexistent, or at least very, very
slow.
The Army Corps of Engineers has also, as I understand
through some consultants I work through, put notice that they
are not even doing delineation verification mapping work right
now. If you are a farmer and you simply have a professional
biologist map the wetlands that might be jurisdictional on your
land using their best understanding of what wetlands may or may
not be jurisdictional, from whatever information they can get
from the Army Corps these days, which may be vague--they are
not even processing those right now because they are so backed
up with permits. In my opinion, greatly regulating wetlands
that they have no authority to regulate.
Are you getting that feedback from any of your farmers?
Ms. Briggs. I am certainly hearing it from WAC members that
approve jurisdictional determinations in many Corps districts
are just not happening. And that is really rich because when
you talk to the Corps about AJDs, they say: It's a free
service, every [inaudible] can get one, nothing to worry about.
Go down to your local Corps office, we will hook you up with an
AJD.
But there are Corps districts out there that are not
issuing AJDs. They are prioritizing AJDs that are linked to a
permit.
So, what this is effectively doing is pushing landowners
into PJDs. PJDs are basically when landowners concede that
everything is--they throw their hands up and concede that
everything is jurisdictional. They go through the mitigation.
They go through the permitting process. It is the only way to
move the process forward.
Mr. Duarte. So, if you don't concede jurisdiction to the
Corps, they will not process your delineation maps?
Ms. Briggs. In some Corps districts, that is correct.
Mr. Duarte. Yes. Excellent.
Mr. Messerly, Home Builders. You want to build homes. You
have got some dry rolling grasslands, as is familiar in
California. It doesn't look like a wetland to anybody who is--
USGS, U.S. Geological Survey, doesn't map anything on the
property as a wetland. But, nonetheless, a homebuilder may need
to submit a non--a delineation that suggests that whatever
features are on that property are not jurisdictional wetlands.
If they don't declare them jurisdictional wetlands, they
are not going to get processed. Is that an experience you are
having?
Mr. Messerly. Yes. A lot of times the Corps districts are
deferring on performing approved jurisdictional determinations,
or AJDs, and encouraging applicants to fill out the PJD, the
preliminary jurisdictional determination.
And the problem with that is, if these are isolated
wetlands, they are not regulated by the waters of the United
States. By default, accepting the terms of the PJD is, one, is
it is nonbinding, it assumes everything is a water of the
United States, and you cannot appeal it.
Mr. Duarte. Let me skip ahead here. So, farmers go to the
NRCS, or the farm service agency to have their Federal
Government engagement with what their farming plans are and
what farm programs or restrictions may be placed on them.
Homebuilders may go to a local zoning or a local permitting
agency at the county level or State level to suffice things.
Has there been any better communications with these
regulatory agencies than there has been with your advocacy
groups? Does the NRCS, FSA, local ag commissioner, local farm
advisor, local permitting office, local State offices have
better information than you have seen as to what the Army Corps
of Engineers is requiring under these new WOTUS regs? Either
one. I think there is a short answer.
Ms. Briggs. Well, they are not coordinating with each
other.
And the most perfect example of this is the understanding
of prior converted cropland because NRCS and Army Corps are now
supposed to have the same understanding. The Corps has moved to
a change-of-use policy to be in line with what NRCS is doing,
but they have different interpretations of what that means. So,
that is impossible for a landowner to navigate.
Mr. Duarte. Mr. Messerly?
Mr. Messerly. Something similar. We often see farm fields
apply for an AJD. They will be told: You need to talk with
NRCS. NRCS will come out and verify it----
Mr. Duarte [interrupting]. Just to finish up here, because
I am running out.
And every violation of the Clean Water Act is subject to
potential criminal penalties. There is no effort being made by
the Army Corps of Engineers, EPA, and sometimes DOJ gets
involved here--I know that personally--there is no definition
of what is jurisdictional, and criminal penalties loom over
anybody who violates whatever the Army Corps' interpretation of
this law is.
Is that a workable situation for your constituents?
Mr. Messerly. No, it is not.
And to finish it up, both agencies will point to the other
agency and say, we will give you a letter that says this is
what you have, but it is up to the other agency to make a final
determination and determine your eligibility for farm benefits
or determine your eligibility for section 404 of the Clean
Water Act. It really puts them in a catch-22.
Mr. Duarte. And we already have a U.S. geological survey of
every mapped water of the United States to begin with. We have
thoroughly mapped our waters of the United States, but that
cannot be used conclusively to determine WOTUS jurisdiction?
Mr. Messerly. That is correct.
Mr. Duarte. Thank you. I yield back, Chairman.
Mr. Rouzer. Mr. Ezell.
Mr. Ezell. Thank you, Mr. Chairman. Thank you, sir. Thank
you all for being here today.
I will tell you, over 1 year ago, we were here discussing
the same concerns, over 1 year ago. And I want to thank you for
coming back again, some of you that were here last year.
But I want to kind of get--I have several things I want to
try to discuss and try to get to all of it today.
Ms. Pokon, how have the regulatory agencies engaged with
your State while implementing the Sackett decisions?
Ms. Pokon. Thank you. It is tough to say because I am not
sure they are implementing it. As I said, our district office,
the Corps of Engineers, has articulated that they don't think
anything has changed in our State.
But I would posit that ``indistinguishable'' should mean
something, and I also think that the Court's concerns around
the vagueness should matter as well. I think it is unfortunate
that we would have to coordinate with our Corps office and that
Colorado has had to in such granular detail when the Court made
pretty clear, I think, that they would like it to be a
commonsense, understandable definition that your average
homeowner can go out and understand whether or not they need to
get a permit from the Federal Government or not.
Mr. Ezell. Common sense doesn't normally go along with the
Federal Government.
My next question is for Mr. Messerly. This committee has
heard from homebuilders and how a ``significant nexus'' test
would cause great confusion for construction projects.
Thankfully, the Sackett decision struck down the ``significant
nexus'' tests and provided more clarity on Federal jurisdiction
over waters. However, the administration's conforming rule only
cut out the ``significant nexus''.
What are the areas of the Sackett decision that are not
being implemented, and what effects are they having on home
building?
Mr. Messerly. It boils down to a relatively permanent water
and a continuous surface connection where there is no
demarcation of where one ends and the other one begins. And
they are not simply following that.
It really causes a great deal of confusion for States that
have regulatory programs, States that want to develop
regulatory programs because they don't know where Federal
regulation ends and theirs begins. So, it creates problems on
both sides of the aisle.
I look to Ohio. We have a tiered permitting approach for
wetlands that the State regulates that are not waters of the
United States. It works very well. Our State program was
implemented after the SWANCC decision in 2001. I would
encourage you all to look at that.
The tiered permitting system has distinct timelines that
must be followed if permits are issued by default. We protect
every wetland in Ohio, and it works very well.
Mr. Ezell. Very good. Following up, my district is a unique
situation where projects may fall under three different Army
Corps jurisdictions and subject to three different sets of
standards. To eliminate confusion, it is incredibly important
that all the Army Corps establishes clear standards across all
jurisdictions.
Mr. Messerly, given your experience, can you speak how
different districts are implementing the Sackett decision, and
how is it impacting industries across States with multiple
Corps jurisdictions?
Mr. Messerly. All districts are not created equal,
unfortunately.
Mr. Ezell. Yes.
Mr. Messerly. There are great differences. Some are
implementing Sackett almost exactly the way the Supreme Court
ruled--I am sorry. They are implementing WOTUS.
But when we look at some other districts, they are really
floundering. They are not able to process AJDs, they are not
able to process permits, and it is debilitating in those
districts.
Mr. Ezell. Thank you.
Ms. Briggs, it was brought to my attention some Army Corps
districts in Vicksburg have stopped issuing approved
jurisdictional determinations altogether.
What impact do you think this is having on the people in
Mississippi?
Ms. Briggs. Yes. I am glad you brought this up because
Vicksburg is one of the Corps districts that has said they are
not approving AJDs, and resources are actually being moved from
Vicksburg to other Corps districts. So, that is just going to
exacerbate the problem.
And our builders, our farmers, our energy developers are
not going to be able to take on these projects without Clean
Water Act permits.
And if I just may, you asked him a question about
``significant nexus''----
Mr. Ezell [interposing]. Right.
Ms. Briggs [continuing]. And I would very much argue that
the snippets that we have received through the field memos that
the agencies have released, if taken collectively,
fundamentally aren't that different from ``significant nexus''.
And this is what we feared as WAC.
We feared that they would get rid of ``significant nexus''
from the rulemaking, and that it would come up with a policy
that has the same force and scope of ``significant nexus'', but
just call it something different. And that is what we think is
materializing.
Mr. Ezell. Thank you.
Mr. Chairman, if I could have one moment?
Mr. Rouzer. Go ahead.
Mr. Ezell. Continuing with Ms. Briggs, I know you are here
representing the Waters Advocacy Coalition. But by trade, you
represent the agricultural industry.
Can you speak how this rule has impacted rural agricultural
land and rural landowners like the ones in my district?
Mr. Rouzer. Keep it to about 20 seconds.
Ms. Briggs. It is confusion. It is uncertainty. The
exemptions are really not providing the certainty that our
members need in order to be able to use them.
Mr. Ezell. Thank you.
Mr. Chairman, I yield back.
Mr. Rouzer. Mr. Van Orden.
Mr. Van Orden. Thank you, Mr. Chairman. I am just going to
say out loud what everybody here is thinking, because it is
readily apparent.
No one in Washington, DC, knows what the hell they are
talking about when it comes to this subject. Zero. Last year,
we had a dude with a 40-pound brain who is a law professor
lecture us about how to run farms. I asked him the last time he
was on a farm. He said his mom--we just pulled up the
transcript. His mom used to get horse manure, and they used
that in his garden. Those were his bona fides.
There is simply enough stupid to go around in this entire
problem set. And when I agree with Mr. Larsen, what's going on
here, right? That is dogs and cats sleeping together at this
point.
So, here is the problem. Congress keeps putting their
fingers into things where they don't belong. They don't. You
know who knows what's going on here? You do, ma'am. And my
farmers do. I represent the Third Congressional District of the
State of Wisconsin. We have the largest contiguous section of
the Mississippi River in any congressional district in the
country. You go from lock 3 to 11, right--or from Red Wing down
to Dubuque.
We don't have a north-south highway in the Third
Congressional District. We have the Mississippi River. And we
are at the forefront of not only organic farming, but also
conservation. So, our guys built these retention ponds so you
have runoff and all of these nutrients going to these ponds,
and then they settle at the bottom, they pull them out, they
reuse them, it lowers input cost. They put the water that is in
there to irrigate the fields again. All of that will go away.
And you know where those nitrates are going to go? Right
into the Mississippi River in the watershed, and they are going
to go down to Mike's district. That is going to happen if this
happens, because you have got a bunch of really super-duper
important people around here, and if you don't believe me, ask
them. They will tell you. And they are going to tell your
farmers how to run their business. That is a nonstarter.
So, here is part of the problem. Congress is lazy. Congress
is lazy. My predecessors abdicated the responsibilities to the
executive branch so they could keep getting elected and come up
here and have these very super important meetings. That is what
happened.
Well, guess what happened? Chevron happened. So, Congress
is going to have to do their job, which is write very
prescriptive legislation and tell the executive branch what
they are going to do, because we are the Article I authority.
We are. We are members of the co-equal branch of Government.
And they have been obfuscating these things. They have been
running a Green New Deal agenda disguising it as confusion
about legislation. I can't understand this; let's write a rule.
Nope. You don't get to write law. We do.
So, I am going to be here at least until January 4 or--I
don't know. I will be at least here until January 4. We will
probably have another meeting January 5. Maybe someone else
from Wisconsin. I don't know.
But as long as I am here, I am going to do this. I am going
to advocate incredibly strongly for my farmers and yours to
make sure that they can feed the world.
And I don't really have a question. I am just--I am sick
and tired of talking about this same thing. I am sick and tired
of our farmers talking to me every day; they don't know what to
do. They don't know if they are breaking the law. They don't
know if they are going to be able to feed their families. They
don't know if their house is going to be taken away from them
because they are getting charged $64,000 a day for doing
something that they thought was right. That is not OK. It's
not. This is broken.
So, when I get input from my farmers and I sit down, I
listen to this guy, and Val, my buddy from Oregon, who is a
Democrat, and we are like, OK, let's craft legislation to make
sure this works well. When we do that, we each represent
850,000 people, that is what the executive branch is supposed
to do, not run their own agenda. It is very frustrating. It is.
And with that, I yield back.
Mr. Rouzer. The gentleman yields back. My understanding is
there is no other Member that has a desire to ask any
questions. That being the case, our hearing today concludes.
I want to thank our witnesses for your great testimony. It
has been a very, very good hearing, a lot of great questions,
and I think very beneficial, not only for each of the Members
here on the committee, but for those who choose to take a look
at the record later. This has been an exceptional hearing in my
opinion.
With that, let's see if we have any final things I need to
get in the record.
[Discussion off the record.]
Mr. Rouzer. The bosses here say we are clear to go.
Subcommittee adjourned.
[Whereupon, at 11:53 a.m., the subcommittee was adjourned.]
Submissions for the Record
----------
Letter of September 11, 2024, to Hon. David Rouzer, Chairman, and Hon.
Grace F. Napolitano, Ranking Member, Subcommittee on Water Resources
and Environment, from Kristen Swearingen, Vice President, Legislative
and Political Affairs, Associated Builders and Contractors, Submitted
for the Record by Hon. David Rouzer
September 11, 2024.
The Honorable David Rouzer,
Chairman,
Committee on Transportation and Infrastructure, Subcommittee on Water
Resources and Environment, U.S. House of Representatives,
Washington, DC 20515.
The Honorable Grace Napolitano,
Ranking Member,
Committee on Transportation and Infrastructure, Subcommittee on Water
Resources and Environment, U.S. House of Representatives,
Washington, DC 20515.
Dear Chairman Rouzer, Ranking Member Napolitano and Members of the
U.S. House Committee on Transportation and Infrastructure's
Subcommittee on Water Resources and Environment:
On behalf of Associated Builders and Contractors, a national
construction industry trade association with 67 chapters representing
more than 23,000 members, I write to thank you for holding a hearing on
``Waters of the United States Implementation Post-Sackett Decision:
Experiences and Perspectives.'' This hearing is vital to examining the
U.S. Environmental Protection Agency and U.S. Army Corps of Engineers'
WOTUS implementation strategy and conformity with Sackett.
On May 25, 2023, the U.S. Supreme Court issued its decision in
Sackett v. EPA, narrowing the scope of WOTUS that may be regulated
under the Clean Water Act. Specifically, the Court rejected the
`significant nexus' test relied on by the Biden-Harris administration's
January 2023 WOTUS final rule. To conform with the Court's decision,
the EPA and Army Corps issued an August 2023 final rule and fact sheet,
eliminating the ``significant nexus'' test. However, in doing so the
agencies advanced the rule without meaningful opportunities for input
from the construction industry and other stakeholders and failed to
fully implement the court's opinion, including the definition of
``relatively permanent'' waters.
In addition, the EPA and Army Corps have not provided the regulated
community with sufficient guidance regarding their interpretation of
the August 2023 rule. Instead, the EPA and Army Corps have issued Field
Memos without expanding on their interpretation or application,
creating uncertainty for the regulated community. ABC is concerned the
EPA and Army Corps' approach to WOTUS risks continuing the decades-long
uncertainty surrounding the scope of federal authority under the CWA,
resulting in litigation, regulatory uncertainty and confusion in the
business community.
The Sackett decision placed clear boundaries on the scope of the
federal government's authority relating to WOTUS while maintaining
reasonable environmental protections for America's waterways. Now, the
EPA and Army Corps must adhere to the Court's ruling. It is time for
the EPA and Army Corps to provide the regulated community, including
the construction industry, with the clarity necessary to complete much-
needed projects in our communities that allow workers and local
economies to thrive.
ABC urges the EPA and the Army Corps to fully comply with the
Sackett decision and provide the regulated community with a clear,
concise definition of WOTUS necessary to inform them of how to comply
with the law while also serving as good stewards of the environment, as
they did prior to the Biden-Harris administration's shortsighted
reversal of President Donald Trump's WOTUS policies.
ABC appreciates the opportunity to comment on the committee's
review of post-Sackett WOTUS implementation.
Sincerely,
Kristen Swearingen,
Vice President, Legislative and Political Affairs,
Associated Builders and Contractors.
Letter of September 9, 2024, to the Committee on Transportation and
Infrastructure and the Subcommittee on Water Resources and Environment,
from Benjamin Davenport, Executive Vice President, Idaho Mining
Association, Submitted for the Record by Hon. David Rouzer
September 9, 2024.
House Transportation and Infrastructure Committee,
Subcommittee on Water Resources and Environment,
2165 Rayburn House Office Building, Washington, DC 20515.
Re: Subcommittee Hearing on ``Waters of the United States
Implementation Post-Sackett Decision: Experiences and Perspectives,''
Wednesday, September 11, 2024, in 2167 of the Rayburn House Office
Building
Dear Chairman Rouzer and Ranking Member Larsen,
I am writing to express the views of the Idaho Mining Association
(IMA) on the implementation by the Federal government of the United
States Supreme Court decision in Sackett v. EPA, a case decided well
over a year ago on May 25, 2023.
About IMA
IMA is a non-profit, non-partisan, state-wide trade association
located in Boise, Idaho. IMA is the recognized voice in support of
exploration and mining in the State of Idaho. Our purpose is to
advocate for a sustainable mining industry that benefits our state and
local communities, while advancing the mineral resource and mining
related interests of our members.
We represent and inform our membership on legislative, regulatory,
safety, technical, and environmental issues that surround the mining
industry. We are committed to the protection of human health, the
natural environment, and a prosperous mining industry in Idaho and
across the United States.
The Sackett Case and the Critical Need for Implementation Guidance to
the Business Community
In their second trip to the Supreme Court in over a decade, Michael
and Chantell Sackett, an Idaho family seeking to build a home on their
property in Priest Lake, successfully reversed a decision by the United
States Court of Appeals for the Ninth Circuit that the CWA covers
adjacent wetlands with a ``significant nexus'' to traditional navigable
waters. Last May, the Court held that the jurisdictional reach of the
Clean Water Act (CWA) extends only to wetlands that are ``as a
practical matter indistinguishable'' from waters of the United States.
Accordingly, Sackett requires more regulatory precision by the Army
Corps of Engineers and Environmental Protection Agency to determine
where traditional ``navigable'' waters end and wetlands begin.
In Sackett, the Supreme Court noted with great particularity the
importance of notice by government ``with sufficient definiteness that
ordinary people can understand what conduct is prohibited'' under the
CWA. This is due to the potential severe criminal sanctions for even
negligent violations and the need to avoid arbitrary enforcement. For
IMA member companies that depend on regulatory certainty for their
business models while advancing environmental stewardship, any delay by
the Corps and EPA in meaningfully implementing the Sackett decision is
problematic on multiple fronts.
For example, for publicly traded companies accountable to their
shareholders and other constituencies, even an inadvertent CWA
violation would be a public relations disaster, not to mention
undermining the significant investment already made by these companies
in environmental protection. Rather than leaving the regulated
community to feel their way post-Sackett on a case-by-case basis, the
Corps and EPA should wholly embrace clear illumination--as soon as
possible--by which the Clean Water Act extends to wetlands with a
continuous surface connection to waters of the United States so that
they become ``indistinguishable'' from those waters.
The Supreme Court noted in Sackett that the ``CWA is a potent
weapon.'' The Idaho Mining Association welcomed the outcome in Sackett
and welcomes its compliance. IMA members look forward, with the expert
guidance of the appropriate Federal agencies, to distinguishing what
the Supreme Court termed the ``indistinguishable'' under the Clean
Water Act so that both the environment and company business models
remain protected. IMA respects CWA obligations that flow to its
members, and each day that passes absent clarity by the Federal
government on Sackett compliance is one more day that business and the
environment are at risk.
Sincerely,
Benjamin Davenport,
Executive Vice President, Idaho Mining Association.
Letter of September 9, 2024, to Hon. David Rouzer, Chairman, and Hon.
Grace F. Napolitano, Ranking Member, Subcommittee on Water Resources
and Environment, from Alex Etchen, Vice President, Government
Relations, Associated General Contractors of America, Submitted for the
Record by Hon. David Rouzer
September 9, 2024.
The Honorable David Rouzer,
Chairman,
Subcommittee on Water Resources and Environment, United States House of
Representatives, Washington, DC 20515.
The Honorable Grace Napolitano,
Ranking Member,
Subcommittee on Water Resources and Environment, United States House of
Representatives, Washington, DC 20515.
RE: AGC statement for the record for hearing entitled ``Waters of the
United States Implementation Post-Sackett Decision: Experiences and
Perspectives''
Dear Chairman Rouzer and Ranking Member Napolitano:
On behalf of the Associated General Contractors (AGC) of America--
the leading association in the construction industry representing more
than 27,000 firms, including America's leading general contractors and
specialty-contracting firms--I thank you for holding the hearing
entitled, ``Waters of the United States Implementation Post-Sackett
Decision: Experiences and Perspectives.'' AGC respectfully shares
challenges that the construction industry has experienced with the
implementation of the Waters of the United States (WOTUS) since the
Sackett v. Environmental Protection Agency ruling.
Federal agencies and courts have long struggled to define WOTUS.
Differing regulations and definitions of the rule over the last four
presidential administrations have created significant regulatory
uncertainty for construction projects and it is impacting contractors'
ability to plan and execute their work efficiently. In 2023, the Biden
administration issued their definition of WOTUS, expanding federal
reach over waters and wetlands, relying on a ``significant nexus test''
to assert federal jurisdiction over almost any wet area. The Supreme
Court's Sackett decision struck down the significant nexus test,
finding that it is flawed for determining when projects require a
federal permit.
In response, the Biden administration hastily drafted edits to the
rule that unfortunately do not address its significant legal flaws, nor
fully implement the Sackett decision. Agencies also finalized their
revisions without accepting public comment--a practice that is
typically reserved for only minor, non-controversial edits. Further,
the administration is also elevating some projects for interagency
review and then releasing field memos that describe how they may decide
in specific scenarios where the 2023 rule remains unclear. This
practice is akin to regulation through guidance, leaving stakeholders
wading through unclear regulations and then analyzing scenario-based
memos for clues on whether their project may move forward.
Congress must ensure that any changes in policy surrounding WOTUS
are consistent with the Supreme Court's ruling so that construction
projects nationwide do not face legal uncertainty. AGC thanks the
subcommittee for holding this important hearing and looks forward to
working with subcommittee members on this issue.
Sincerely,
Alex Etchen,
Vice President, Government Relations, Associated General
Contractors of America.
Letter of September 10, 2024, and Memo from Fall 2023 to Hon. David
Rouzer, Chairman, and Hon. Grace F. Napolitano, Ranking Member,
Subcommittee on Water Resources and Environment, from Chad W. Lord,
Senior Director, Government Affairs, National Parks Conservation
Association, Submitted for the Record by Hon. David Rouzer
September 10, 2024.
The Honorable David Rouzer,
Chairman,
Subcommittee on Water Resources and Environment, Committee on
Transportation and Infrastructure, Washington, DC 20515.
The Honorable Grace Napolitano,
Ranking Member,
Subcommittee on Water Resources and Environment, Committee on
Transportation and Infrastructure, Washington, DC 20515.
Dear Chairman Rouzer and Ranking Member Napolitano:
Please find enclosed a copy of a memorandum written by the National
Parks Conservation Association (NPCA) last fall describing the
potential consequences of the United States Supreme Court's decision in
Sackett v. EPA to our national parks. I ask that it be included in the
hearing record.
NPCA's analysis demonstrates that the Supreme Court's decision
strips protections for non-adjacent wetlands and many tributaries that
play an important role in protecting national park waters. As the memo
notes, water plays an important role in national parks. Although park
waters within park boundaries are protected by park statutes and the
National Park Service's Organic Act, many park waters originate outside
park boundaries or are substantially affected by waters outside park
boundaries. The recent narrowing of the definition of WOTUS leaves more
of these upstream waterways and wetlands unprotected by federal law,
which could have devastating impacts on many of our park waterways.
All our waters are connected. Protecting and restoring wetlands and
streams is critical to protecting the waters in our national parks.
Healthy wetlands improve water quality by filtering polluted runoff
from farm fields and city streets that otherwise would flow into
rivers, streams, and water bodies across the country. Wetlands and
tributaries provide vital habitat to wildlife, waterfowl, and fish,
reduce flooding, and provide clean water for fishing, swimming, and
paddling in national parks.
Please do not hesitate to contact me with questions.
Sincerely,
Chad W. Lord,
Senior Director, Government Affairs, National Parks Conservation
Association.
__________
Attachment
MEMORANDUM FOR: INTERESTED PARTIES
FROM: Chad Lord, Senior Director, Government Affairs
Rachel Kenigsberg, Senior Associate General
Counsel
DATE: Fall 2023
REASON: Potential Impacts of Sackett v. EPA on waters in
and near units of the National Park System
Introduction
On May 25, 2023, the U.S. Supreme Court released its decision in
Sackett v. EPA, which reduced the scope of waters regulated by the
Clean Water Act (CWA). Justice Alito's opinion held:
``The CWA's use of `waters' encompasses `only those relatively
permanent, standing or continuously flowing bodies of water
`forming geographic[al] features' that are described in
ordinary parlance as `streams, oceans, rivers, and lakes.') \1\
---------------------------------------------------------------------------
\1\ Sackett, ET UX. v. Environmental Protection Agency ET AL. No.
21-454. Pg. 14.
``[w]e hold that the CWA extends to only those wetlands that
are `as a practical matter indistinguishable from waters of the
United States.' Rapanos, 547 U.S., at 755 (plurality opinion)
(emphasis deleted). This requires the party asserting
jurisdiction over adjacent wetlands to establish `first, that
the adjacent [body of water constitutes] . . . `water[s] of the
United States,' (i.e., a relatively permanent body of water
connected to traditional interstate navigable waters); and
second, that the wetland has a continuous surface connection
with that water, making it difficult to determine where the
`water' ends and the `wetland' begins.' Id., at 742.)'' \2\
---------------------------------------------------------------------------
\2\ Sackett, ET UX. v. Environmental Protection Agency ET AL. No.
21-454. Pg. 22.
On August 29, 2023, the Environmental Protection Agency (EPA) and
U.S. Army Corps of Engineers (Corps) announced it would finalize a rule
amending the 2023 definition of ``waters of the U.S.'' (WOTUS) to
conform federal regulations with the Supreme Court's Sackett decision.
The decision made clear that certain aspects of the 2023 rule were
invalid, so the agencies' amendments conformed the regulatory text to
the Court's holding (cited above). The agencies published their final
rule on September 8, 2023.\3\
---------------------------------------------------------------------------
\3\ 88 FR 3004. Sept. 8, 2023.
---------------------------------------------------------------------------
The practical impact of the Court's decision and subsequent
revision of federal regulations is still being evaluated. However,
insight into the local effects of the Court's decision might follow the
impacts identified in an analysis of a similar WOTUS definition
proposed by the EPA and Army Corps in 2020. This analysis suggests that
many waters upstream from national parks will no longer be protected by
federal law.
Water plays an essential role in national parks: they provide
crucial habitat for fish and wildlife, offer recreational
opportunities, provide drinking water for visitors and--in many cases--
are central to the parks' unique character and value. Such water-
dependent parks are found across the country. Although these waters are
protected by statute and National Park Service (NPS) policies within
park boundaries, many park waters originate outside park boundaries or
are otherwise substantially affected by waters outside of parks,
including tributaries and wetlands. The protection of water quality and
wildlife habitat in national parks depends on the protection of these
upstream wetlands and ephemeral streams. Since NPS relies on the
federal protections provided under the Clean Water Act, the recent
narrowing of the definition of WOTUS leaves more upstream waterways and
wetlands unprotected by federal law.
NPCA's analysis \4\ of the Navigable Waters Protection Rule \5\
(the ``2020 Rule''), which proposed a similar definition to the one
adopted by the Supreme Court, showed that it would have stripped
protections from many waters by revising the definition of ``waters of
the United States.'' Specifically, the 2020 rule--like the Sackett
decision--narrowed the scope of the Clean Water Act by removing federal
protection for wetlands that do not have a continuous surface flow into
covered waters (now defined as relatively permanent, standing or
continuously flowing bodies of water `forming geographic[al] features'
that are described in ordinary parlance as ``streams, oceans, rivers,
and lakes.''). The 2023 Rule also narrowed what tributaries are
federally protected to only ones that are relatively permanent,
standing or continuously flowing.
---------------------------------------------------------------------------
\4\ NPCA appreciates the work by the Emmett Environmental Law and
Policy Clinic at Harvard Law School, which conducted this analysis on
behalf of NPCA.
\5\ 85 Fed. Reg. 22,250 (Apr. 21, 2020)
---------------------------------------------------------------------------
The loss of federal protection for non-adjacent wetlands and many
tributaries could be devastating to parks because these waterbodies
play crucial roles in maintaining the biological, chemical and physical
integrity of downstream park waters.\6\ Because of the similarity
between the 2020 Rule and the recent Supreme Court decision, NPCA
believes its analysis of the 2020 Rule is useful to describing the
future impact of Sackett v. EPA on national park waters.
---------------------------------------------------------------------------
\6\ See EPA & Dep't of the Army, Technical Support Document for the
Clean Water Rule: Definition of Waters of the United States 101 (May
27, 2015), https://www.epa.gov/sites/production/files/2015-05/
documents/technical_support_document_for_the_clean_water_rule_1.pdf.
---------------------------------------------------------------------------
National Park Waters
The National Park System has over 150,000 miles of rivers and
streams flowing through it and over 4 million acres of lakes, oceans
and other water bodies are found within park boundaries.\7\ These
waters are integral aspects of many parks. Visitors rely on clean water
for drinking, fishing and swimming and clean water ensures the
integrity of wildlife habitat and ecosystems inside national parks.\8\
Moreover, many iconic parks rely on the presence of water for stunning
visuals that attract millions of visitors. Nonetheless, as discussed
below, many parks have impaired waters or waters that were threatened
by the 2020 Rule and likely threatened by the Sackett decision.
---------------------------------------------------------------------------
\7\ Water Quantity, Nat'l Park Serv., https://www.nps.gov/subjects/
protectingwater/water-quantity.htm.
\8\ See Water Use in National Parks, Nat'l Park Serv., https://
www.nps.gov/
subjects/protectingwater/water-
use.htm#: :text=Ecosystem%20Use&text=Many%20ecosystems
%20in%20national%20parks,of%20maintaining%20healthy%20river%20systems.
---------------------------------------------------------------------------
Saint Croix National Scenic Riverway, Wisconsin & Minnesota
Saint Croix National Scenic Riverway could be at risk from this
decision. The St. Croix River, which flows through the park, has
recently experienced greater pollution because of expanded agriculture
and urban development.\9\ The 2020 Rule and now likely the Sackett
decision increased the possibility of further pollution to St. Croix
National Scenic Riverway. It is estimated that 26 percent of the
wetlands located in the park's watershed would have been unprotected
under the 2020 Rule and 64-77 percent of the watershed's streams are
ephemeral and at risk for loss of protection.\10\ The loss of federal
protection for these waters could have had negative downstream
consequences for the integrity of St. Croix National Scenic Riverway's
waters.
---------------------------------------------------------------------------
\9\ Abigail A. Tomasek et al., Wastewater Indicator Compounds in
Wastewater Effluent, Surface Water, and Bed Sediment in the St. Croix
National Scenic Riverway and Implications for Water Resources and
Aquatic Biota, Minnesota and Wisconsin, 2007-08, U.S. Geological Survey
3 (2012), https://pubs.usgs.gov/sir/2011/5208/pdf/sir2011-5208.pdf.
\10\ Woods Decl. 58; Fesenmyer Decl. 13.
---------------------------------------------------------------------------
Indiana Dunes National Park, Indiana
The decrease in waters protected also impact waters at Indiana
Dunes National Park. Approximately 69 percent of the park's waterbodies
are already impaired.\11\ The park is home to the Great Marsh--the
biggest internal wetland on the Lake Michigan shoreline. NPCA helped
secure funding for a restoration project aimed at rehabilitating the
Great Marsh because recent agriculture and construction have disturbed
its hydrology.\12\ However, NPCA's efforts will likely be hindered by
the Sackett decision because part of Indiana Dunes National Park is
located in the Chicago River watershed and experts estimated that 86
percent of that watershed's wetlands may have lost protection and that
39-56 percent of the watershed's streams are ephemeral.\13\ Another
part of the park is also located in the Little Calumet-Galien watershed
and 70 percent of that watershed's wetlands would have been unprotected
under the 2020 rule and likely are federally unprotected after
Sackett.\14\ It is likely that the pollution and hydrological
disturbances already found in the park's waterbodies and in the Great
Marsh will now get worse.
---------------------------------------------------------------------------
\11\ See Indiana Dunes National Park Statistics, Nat'l Park Serv.
(last updated Feb. 7, 2019), https://www.nps.gov/subjects/
protectingwater/his-parkreport.htm?unitType=Park&parkNames=
INDU.
\12\ Id.
\13\ Woods Decl. 55; Fesenmeyer Decl. 8.
\14\ Woods Decl. 56.
---------------------------------------------------------------------------
Chaco Culture National Historical Park, New Mexico
Ephemeral streams play an important role in many national parks,
particularly in parks in the arid West where there is a high percentage
of ephemeral waters. The United States Geological Survey (USGS) and NPS
have identified several ``parks with significant intermittent or
ephemeral drainages'' within the Four Corners region, including Chaco
Wash in Chaco Culture National Historical Park.\15\ As noted by the
report, a ``vast network of perennial, intermittent and ephemeral
springs, pools, washes and streams sustain the larger water bodies and
their associated riparian corridor,'' and these areas ``collectively
support the diverse flora and fauna throughout the region.'' \16\
Specifically, the ephemeral features support the region's ``unique and
significant water-dependent features such as hanging gardens and
cottonwood stands.'' \17\ Potentially eliminating protection for
certain ephemeral streams may have dire consequences for Chaco, given
the integral roles they play.
---------------------------------------------------------------------------
\15\ Juliane M. Bowen, Review of Available Water-Quality Data for
the Southern Colorado Plateau Network and Characterization of Water
Quality in Five Selected Park Units in Arizona, Colorado, New Mexico,
and Utah, 1925 to 2004, Scientific Investigations Report 2008-5130,
U.S. Geological Survey 5 (2008).
\16\ Id.
\17\ Id.
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NPS's Hydrographic and Impairment Statistics website indicates that
the park has negligible amounts of currently impaired waters.\18\
However, the park's waters are at risk because the Army Corps has
determined that ephemeral streams located near Chaco Culture National
Historical Park will be impacted by oil and gas projects.\19\ The
Bureau of Land Management has also noted that there may be negative
impacts to surface water quality in the surrounding area and the map
accompanying their analysis reveals that potential projects may be
developed in Chaco's watershed.\20\ Downstream park waters are at risk
because developers may no longer need a permit under section 402 or 404
of the CWA when their projects impact certain ephemeral streams. NPCA
has sought to protect Chaco Culture National Historical Park in New
Mexico from the negative impacts of oil and gas developments,\21\ but
the Sackett decision could hamper those efforts.
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\18\ See Chaco Culture National Historical Park Statistics, Nat'l
Park Serv. (last updated Feb. 27, 2018), https://www.nps.gov/subjects/
protectingwater/his-parkreport.htm?unitType=
Park&parkNames=CHCU
\19\ See Pls.' Mem. Law Supp. Mot. Summ. J, Conservation Law
Foundation et al., v. Environmental Protection Agency, No. 1:20-cv-
10820-DPW (D. Mass. Oct. 15, 2020) at 39; Decl. Michelle Wu Exs. 21-24,
Conservation Law Foundation et al., v. Environmental Protection Agency,
No. 1:20-cv-10820-DPW (D. Mass. Oct. 15, 2020) [hereinafter ``Wu
Decl.''].
\20\ See Wu Decl. Ex. 25 (map of potential oil and gas developments
around Chaco Culture National Historical Park, with potential projects
inherently located in the park's watershed).
\21\ See Advocacy in Action: Fragile Treasures Threatened in Chaco
Culture National Historical Park, National Parks Conservation
Association, https://www.npca.org/advocacy/25-fragile-treasures-
threatened-in-chaco-culture-national-historical-park.
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Everglades National Park, Florida
Nearly 100 percent of waters in the Everglades are already
impaired,\22\ in part because ``land-use activities that impair water
quality have intensified in the upstream watersheds.'' \23\ The
Everglades is highly susceptible to the effects of upstream water
practices and is increasingly threatened by nearby land development and
agricultural practices.\24\ Water pollution has caused overpopulation
of some coastal and inland plant species in the park, disturbing its
ecosystem.\25\ Park waters are further threatened because the 2020 Rule
would not have protected 81 percent of the wetlands in the Big Cypress
Swamp watershed, which provides a significant portion of water flow
into the park.\26\ Degraded water quality may threaten the substantial
economic activity the park attracts. In 2019, the Everglades
accumulated $110 million in visitor spending and helped support 1,510
jobs.\27\
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\22\ See Everglades National Park Statistics, Nat'l Park Serv.
(last updated July 27, 2020), https://www.nps.gov/subjects/
protectingwater/his-parkreport.htm?unitType=Park&park
Names=EVER.
\23\ Water Quality in Big Cypress National Preserve and Everglades
National Park--Trends and Spatial Characteristics of Selected
Constituents, U.S. Geological Survey 3 (2004), https://pubs.usgs.gov/
wri/wri034249/wri03_4249_miller.pdf.
\24\ Id. at 3-4.
\25\ Donatto Surratt et al., Recent Cattail Expansion and Possible
Relationships to Water Management: Changes in Upper Taylor Slough
(Everglades National Park, Florida, USA), Environmental Management,
49(3), 720-733 (2012), https://doi.org/10.1007/s00267-011-9798-x.
\26\ Woods Decl. 53.
\27\ South Florida National Parks and Preserve Create Over $352
Million in Economic Benefit, Nat'l Park Serv. (June 16, 2020), https://
www.nps.gov/ever/learn/news/south-florida-national-parks-and-preserve-
create-over-352-million-in-economic-benefit.htm.
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The 2020 Rule would have also hampered wetlands restoration efforts
in Everglades National Park. The park has undertaken a project seeking
to restore 6,300 acres of wetlands within the park.\28\ Compensatory
mitigation funds from permitted development projects that fill wetlands
in the adjacent counties finance this unprecedented wetland restoration
program. Because the 2020 Rule and probably the Sackett decision
eliminated the need to obtain federal permits for filling many types of
wetlands, such as those separated by a jurisdictional water by a
manmade feature that does not have a direct hydrological surface
connection with said water, compensatory mitigation could be reduced.
---------------------------------------------------------------------------
\28\ Hole-in-the-Donut Restoration Project, Nat'l Park Serv. (last
updated Oct. 13, 2020), https://www.nps.gov/ever/learn/nature/
hidprogram.htm.
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Big Cypress National Preserve, Florida
One hundred percent of Big Cypress National Preserve's waters are
already impaired,\29\ in part because ``land-use activities that impair
water quality have intensified in the upstream watersheds.'' \30\ Big
Cypress is highly susceptible to the effects of upstream water
practices and is increasingly threatened by nearby land development and
agricultural practices.\31\ Preserve waters are further threatened
because the 2020 Rule, and likely the Sackett decision, would not have
protected 81 percent of the wetlands in the Big Cypress Swamp
watershed, which is where the preserve is located.\32\ Degraded water
quality may threaten the substantial economic activity the preserve
attracts. In 2019, Big Cypress National Preserve accumulated $81.5
million in visitor spending and helped support 1,080 jobs.\33\
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\29\ See Big Cypress National Preserve Statistics, Nat'l Park
Service (last updated Aug. 16, 2020), https://www.nps.gov/subjects/
protectingwater/his-parkreport.htm?unitType=Park&park
Names=BICY.
\30\ Water Quality in Big Cypress National Preserve and Everglades
National Park--Trends and Spatial Characteristics of Selected
Constituents, U.S. Geological Survey 3 (2004), https://pubs.usgs.gov/
wri/wri034249/wri03_4249_miller.pdf.
\31\ Id. at 3-4.
\32\ Woods Decl. 53.
\33\ South Florida National Parks and Preserve Create Over $352
Million in Economic Benefit, Nat'l Park Serv. (June 16, 2020), https://
www.nps.gov/ever/learn/news/south-florida-national-parks-and-preserve-
create-over-352-million-in-economic-benefit.htm.
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During 2017 and 2018, oil and gas exploration surveys in Big
Cypress National Preserve injured many of the preserve's wetlands. In
March of 2020, NPCA supported the Army Corp's position that the CWA
would regulate future projects; however, the Corps rescinded that
position in April 2020.\34\ Apart from oil and gas, the threat of off-
road vehicle (ORV) trail development as proposed by the National Park
Service in 2022 would potentially require the agency to seek 404
permits and compensatory mitigation. However, wetlands protections have
now been significantly decreased.
---------------------------------------------------------------------------
\34\ Army Corps Finds Significant Damage in Big Cypress National
Preserve After NPS Green Lights Oil and Gas Exploration, National Parks
Conservation Association (Mar. 11, 2020), https://www.npca.org/
articles/2486-army-corps-finds-significant-damage-in-big-cypress-
national-preserve-after.
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Florissant Fossil Beds National Monument, Colorado
NPS's Hydrographic and Impairment Statistics website reveals that
Florissant has no currently impaired waters.\35\ However, the park is
at risk of degradation because up to 35 percent of its miles of streams
may have lost protection.\36\ These streams are at significant risk of
becoming polluted, and because they flow directly to the park, threaten
the water quality of Florissant Fossil Beds National Monument.
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\35\ See Florissant Fossil Beds National Monument Statistics, Nat'l
Park Serv. (last updated Feb. 14, 2014), https://www.nps.gov/subjects/
protectingwater/his-parkreport.htm?unitType=
Park&parkNames=FLFO.
\36\ Decl. Andrew Robertson (on file with author) (forthcoming).
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Yellowstone National Park, Montana, Idaho and Wyoming
NPS's Hydrographic and Impairment Statistics website reveals that
Yellowstone's waterways are currently negligibly impaired.\37\ However,
the park could be at risk of becoming degraded. The Tongue River basin
in Montana lays upstream of Yellowstone River, and in 2015, about 35
percent of its waters that were impacted by section 404 projects were
non-relatively permanent ephemeral streams and non-floodplain
wetlands.\38\ Such waters may no longer be jurisdictional under the
CWA. The loss of protection for these basin waters can result in the
degradation of Yellowstone River, due to downstream pollutants, and
thereby harm Yellowstone National Park.
---------------------------------------------------------------------------
\37\ See Yellowstone National Park Statistics, Nat'l Park Serv.
(last updated Dec. 27, 2017) https://www.nps.gov/subjects/
protectingwater/his-parkreport.htm?unitType=Park&park
Names=YELL.
\38\ Br. Amici Curiae Trout Unlimited et al., South Carolina
Coastal Conservation League v. Wheeler, No. 2:20-cv-01687-DCN (D.S.C.
July 17, 2020) at 27.
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Great Smoky Mountains National Park, North Carolina and Tennessee
Great Smoky Mountains National Park has waterways that are nearly
54 percent impaired and shoreline miles that are about 93 percent
impaired.\39\ Headwater streams in the park are threatened by high
acidity and NPS notes that ``acidic streams are suspected to be the
main cause of decline of the native brook trout population in the
park.'' \40\ There are karst-depression wetlands outside of the park
that will likely now be considered non-adjacent and will therefore be
at risk of being dredged or filled, or having pollutants be discharged
into them.\41\ Karst-depression wetlands are habitats ``for plants and
animals that are otherwise rare or absent in southern uplands'' and are
ecologically significant.\42\ Moreover, wetlands in general can act as
buffers for acidity.\43\ The loss of CWA protection for these wetlands
may prevent them from being helpful acidity buffers to the Great Smoky
Mountains National Park, further endangering the native book trout and
the area's recreational fishing industry.
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\39\ See Great Smoky Mountains National Park Statistics, Nat'l Park
Serv. (last updated Mar. 29, 2018), https://www.nps.gov/subjects/
protectingwater/his-parkreport.htm?unitType=
Park&parkNames=GRSM.
\40\ Great Smoky Mountains: Water Quality, Nat'l Park Serv.,
https://www.nps.gov/grsm/learn/nature/water-quality.htm.
\41\ See Shaun A. Goho, Harvard Law School's Emmett Environmental
Law and Policy Clinic, on Behalf of National Parks Conservation
Association, Comment Letter on Proposed 2020 Rule to Revise Definitions
of ``Waters of the United States'' 46 (Apr. 12, 2019), http://
clinics.law.harvard.edu/environment/files/2019/04/EELPC-NPCA-WOTUS-
comments.pdf.
\42\ William J. Wolfe, Hydrology and Tree-Distribution Patterns of
Karst Wetlands at Arnold Engineering Development Center, Tennessee,
U.S. Geological Survey 2 (1996), https://pubs.usgs.gov/wri/wri96-4277/
pdf/wrir_96-4277_a.pdf.
\43\ See, e.g., W.M. Mayes, et al., Wetland Treatments at extremes
of pH: A review, 407 Sci. Total Env't 3944 (2007).
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Kings Canyon National Park, California
NPS's Hydrographic and Impairment Statistics website indicates that
the park is not impaired.\44\ However, park waters could be in danger
of becoming impaired because the park is located in the San Joaquin
River watershed, which contains a substantial amount of non-relatively
permanent ephemeral streams.\45\
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\44\ See Kings Canyon National Park Statistics, Nat'l Park Serv.
(last updated Mar. 31. 2017), https://www.nps.gov/subjects/
protectingwater/his-parkreport.htm?unitType=Park&park
Names=KICA.
\45\ Woods Decl. 38; Woods Decl. Ex. 9.
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Gila Cliff Dwellings National Monument, New Mexico
Approximately 21 percent of park waterways are impaired.\46\
However, park waters could be in danger of becoming impaired because
the park is located in the Upper Gila watershed, which contains a
substantial amount of ephemeral streams.\47\
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\46\ See Gila Cliff Dwellings National Monument Statistics, Nat'l
Park Serv. (last updated Feb. 27, 2018), https://www.nps.gov/subjects/
protectingwater/his-parkreport.htm?unitType=
Park&parkNames=GICL.
\47\ Woods Decl. 41; Woods Decl. Ex. 12.
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Obed Wild and Scenic River, Tennessee
About 28 percent of the park's waterways are impaired,\48\ and the
park contains some ``severely polluted waters.'' \49\ Its water quality
is threatened by out-of-park operations, such as wastewater discharges
associated with upstream suburban and urban growth, and pollutants
associated with timbering, mining, oil, and gas operations.\50\ Obed
Wild and Scenic River most likely has ephemeral streams located within
its watershed,\51\ which could have lost CWA protection. The park hosts
``one of only two existing populations of the federally endangered
Alabama lampshell mussel'' as well as the spotfin chub, a federally
threatened fish species.\52\ Further impairment of the park's already
degraded waters could jeopardize the survival of these vulnerable
species.
---------------------------------------------------------------------------
\48\ See Obed Wild and Scenic River Statistics, Nat'l Park Serv.
(last updated Apr. 28, 2017), https://www.nps.gov/subjects/
protectingwater/his-parkreport.htm?unitType=Park&park
Names=OBRI.
\49\ James Hughes et al., Long-Term Discrete Water Quality
Monitoring at Big South Fork National River and Recreation Area, Blue
Ridge Parkway, and Obed Wild and Scenic River, Nat'l Park Serv. 15
(Dec. 2018), [hereinafter ``Long-Term Monitoring Report''].
\50\ Id.
\51\ See Rodney R. Knight et al., Hydrologic Data for the Obed
River Watershed, Tennessee, Nat'l Park Serv. & U.S. Geological Survey 4
(2014), https://pubs.usgs.gov/of/2014/1102/pdf/ofr2014-1102.pdf.
\52\ James Hughes et al., Long-Term Discrete Water Quality
Monitoring at Big South Fork National River and Recreation Area, Blue
Ridge Parkway, and Obed Wild and Scenic River, Nat'l Park Serv. 17
(Dec. 2018).
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Blue Ridge Parkway, Virginia and North Carolina
About 67 percent of the park's waterways are already impaired, as
well as about 74 percent of its waterbodies and 68 percent of its
shoreline miles.\53\ The impairment of many waters within Blue Ridge
Parkway is caused by conditions that originate outside of the parks'
boundaries, such as urban and residential development that occurs
adjacent to the park.\54\
---------------------------------------------------------------------------
\53\ See Blue Ridge Parkway Statistics, Nat'l Park Serv. (last
updated Sept. 9, 2021), https://www.nps.gov/subjects/protectingwater/
his-parkreport.htm?unitType=Park&parkNames=BLRI.
\54\ Long-Term Monitoring Report, supra note 80 at 18-19 (``These
streams are 303d-listed for causes originating outside park
boundaries.'').
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Congaree National Park, South Carolina
Over 24 percent of Congaree's waterways are impaired.\55\ Congaree
has poor surface water quality and is threatened in part by the effects
of municipal and industrial wastewater discharges, urbanization,
stormwater runoff and upstream poultry concentrated animal feeding
operations.\56\
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\55\ See Congaree National Park Statistics, Nat'l Park Serv. (last
updated April 6, 2021), https://www.nps.gov/subjects/protectingwater/
his-parkreport.htm?unitType=Park&park
Names=CONG.
\56\ JoAnn M. Burkholder et al., Natural Resource Condition
Assessment: Congaree National Park, Nat'l Park Serv. (2018) xxii, 176.
Letter of September 11, 2024, to Hon. David Rouzer, Chairman, and Hon.
Grace F. Napolitano, Ranking Member, Subcommittee on Water Resources
and Environment, from Michele Stanley, Executive Vice President and
Chief Advocacy Officer, National Stone, Sand & Gravel Association,
Submitted for the Record by Hon. David Rouzer
September 11, 2024.
The Honorable David Rouzer,
Chairman,
Subcommittee on Water Resources and Environment, Committee on
Transportation and Infrastructure, U.S. House of
Representatives, Washington, DC 20515.
The Honorable Grace Napolitano,
Ranking Member,
Subcommittee on Water Resources and Environment, Committee on
Transportation and Infrastructure, U.S. House of
Representatives, Washington, DC 20515.
Dear Chairman Rouzer and Ranking Member Napolitano,
On behalf of the 500 members of the National Stone, Sand & Gravel
Association (NSSGA), I write to express our gratitude for the much-
needed oversight hearing titled Waters of the United States (WOTUS)
Implementation Post-Sackett Decision: Experiences and Perspectives on
September 11, 2024. Your attention to this matter is crucial and
greatly appreciated.
NSSGA represents the aggregates and industrial sand industry, and
the companies that manufacture equipment and provide services. Our
industry, with 9,000 facilities and well over 100,000 employees in
high-paying jobs, plays a vital role in sustaining our lifestyle and
constructing the nation's infrastructure and communities. The 2.5
billion tons of aggregates we produce annually are fundamental
components required for building communities, roads, airports, transit,
rail, ports, clean water and energy networks. Aggregates are a local
product because rocks are heavy, and excess transportation adds to the
cost of the material. If operations are not allowed to expand or open
near where they are needed, the materials end up costing more.
The stone, sand and gravel industry urgently needs clarity and
certainty regarding Clean Water Act (CWA) permitting. NSSGA's members
frequently pull CWA permits when developing new quarries or determining
if, when, or how to expand their existing quarry, and the lack of clear
guidelines is a significant challenge. In May 2023, the Supreme Court
issued a clear ruling to limit federal jurisdiction under the CWA in
Sackett v. EPA.
Sackett ruled on the jurisdiction of adjacent wetlands, providing a
two-part test to make that determination, and ruled that the
significant nexus test was inconsistent with the CWA and the original
2023 WOTUS rule. The agencies are now relying on two new tests from
Sackett to determine jurisdiction. They are relying on a new and
untested `relatively permanent water' (RPW) test for tributaries and
doing everything they can to claim jurisdiction of adjacent wetlands
through the `continuous surface connection' (CSC) test. These new and
unknown tests harm landowners and industry and put practitioners in a
precarious position because the Environmental Protection Agency (EPA)
and U.S. Army Corps of Engineers (USACE) determine jurisdiction case-
by-case. The Justices made it clear that an adjacent wetland is only
jurisdictional when indistinguishable from an otherwise jurisdictional
WOTUS feature.
While the EPA and USACE have provided some webinars and recently
began providing field Memorandum for Records (MFR) on certain
jurisdictional determinations that are, again, on a case-by-case basis,
there has been no publicly available guidance or efforts to define the
ambiguous terms of RPW or CSC by the agencies. This puts many
landowners, industry, and practitioners in a risky position because it
is often difficult to determine whether a particular feature is WOTUS,
and as such, could lead to incidental impacts coupled with civil
penalties and possibly criminal prosecution. The agencies are defining
CSC as any physical connection, even if that connection itself is not
jurisdictional. The agencies state that back-to-back rainfall could
satisfy the RPW test to make a drainage ditch, an otherwise dry
feature, jurisdictional. This violates the clear language of an
``indistinguishable'' connection in the unanimous Sackett opinion and
was not promulgated via rulemaking, which violates the Administrative
Procedure Act. The only option for our members is to request an
approved jurisdictional determination (AJD) and wait for the agencies
to tell them what is considered federal jurisdiction. These delays cost
the industry real money and increase overall infrastructure project
costs.
The environmental consultants NSSGA members use to provide insight
into filing permits have shared that they do not know what to expect
until the agencies finally review their requests and issue an AJD.
These consultants have shared examples of where they have found a
feature to be ephemeral and, therefore, non-jurisdictional, but the EPA
and USACE will interpret the data differently to claim that feature as
an RPW. NSSGA encourages the agencies and Congress to sit down with
industry to best determine how federal staff is making these decisions
and to walk through how it is compliant with the Supreme Court's
decisions.
NSSGA applauds this committee for holding a hearing to explore how
the federal agencies are disregarding a unanimous Supreme Court
opinion. Essentially, the agencies have created a new significant nexus
test in all but name and brought many development and infrastructure
projects to a halt. With the expiration of the Infrastructure
Investment and Jobs Act (IIJA) funding on the horizon, federal agencies
should utilize their existing authorities to help the industry ramp up
production to utilize best the investments made by Congress, and that
should include expediting AJDs and permits under the CWA.
Sincerely,
Michele Stanley,
Executive Vice President & Chief Advocacy Officer,
National Stone, Sand & Gravel Association.
Letter of September 11, 2024, to Hon. David Rouzer, Chairman, and Hon.
Grace F. Napolitano, Ranking Member, Subcommittee on Water Resources
and Environment, from Rich Nolan, President and Chief Executive
Officer, National Mining Association, Submitted for the Record by Hon.
David Rouzer
September 11, 2024.
The Honorable David Rouzer,
Chairman,
Subcommittee on Water Resources and Environment, Committee on
Transportation and Infrastructure, U.S. House of
Representatives, Washington, DC 20515.
The Honorable Grace Napolitano,
Ranking Member,
Subcommittee on Water Resources and Environment, Committee on
Transportation and Infrastructure, U.S. House of
Representatives, Washington, DC 20515.
Dear Chairman Rouzer and Ranking Member Napolitano:
On behalf of the National Mining Association (NMA) and our nearly
280 members, thank you for holding today's hearing on the
implementation of the U.S. Army Corps of Engineers (Corps) and U.S.
Environmental Protection Agency's (EPA) Waters of the United States
(WOTUS) rule following the U.S. Supreme Court's decision in Sackett v.
EPA. We applaud your leadership in examining this critical issue and
appreciate the opportunity to share our members' experiences.
Statement of Interest
The NMA is the national trade organization that serves as the voice
of the entire U.S. mining industry and the hundreds of thousands of
American workers it employs. 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,
infrastructure, national security, and economic security, all delivered
under world-leading environmental, safety and labor standards. Our
members support clear and reasonable regulatory requirements that both
protect the environment and support responsible development.
U.S. Miners Need Regulatory Clarity and Certainty
Our members regularly obtain federal Clean Water Act (CWA) permits
and rely on efficient, predictable, and durable regulatory frameworks.
Especially in this era of intense global competition and volatility,
U.S. miners, including small businesses, need regulatory clarity and
certainty to make confident decisions that will create jobs, strengthen
local economies and communities, 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 for our allies abroad, and hardrock minerals from copper to
gold that support renewable energy technologies, healthcare, and more.
A year and a half after the Court's decision and a full year after
the revised WOTUS rule went into effect, the agencies have not
faithfully implemented Sackett or provided clear direction to the
regulated community. The agencies' implementation improv is putting our
members' projects and the communities that rely on them at risk. Our
members are committed to protecting natural resources and promoting
responsible development in the communities in which they live and work.
But many of them are facing significant project delays and increased
costs because the agencies cannot make the basic decision of whether a
project needs a federal CWA permit.
For example, several of our member companies are having difficulty
obtaining an approved jurisdictional determination (AJD) from the
Corps. In some cases, our members have been waiting a year or more for
their AJD to be issued. Some draft AJDs have been elevated to Corps and
EPA headquarters without any explanation or timeline for completion. In
the meantime, our members are unable to move forward with their
projects. In situations where our members do not have the luxury of
time for the Corps to determine whether they need a CWA permit, some
companies have been forced to take the route of a preliminary
jurisdictional determination (PJD). PJDs concedes that all features on
the site are federally jurisdictional, even if the agencies would have
determined they are not.
Ultimately, some companies are facing an impossible decision--
either to languish in regulatory limbo for months or even years waiting
for the federal government to decide whether their project needs a CWA
permit or to be forced to pull the plug on the project altogether.
We urge the Subcommittee to ensure the agencies are faithfully
applying the Sackett decision, processing jurisdictional determinations
efficiently, and being transparent with our members about how the post-
Sackett regulatory regime is being implemented.
Respectfully,
Rich Nolan,
President and CEO, National Mining Association.
Letter of September 6, 2024, to the Committee on Transportation and
Infrastructure and the Subcommittee on Water Resources and Environment,
from Ryan Anderson, Commissioner, Alaska Department of Transportation
and Public Facilities, Submitted for the Record by Hon. David Rouzer
September 6, 2024.
Committee on Transportation and Infrastructure,
Subcommittee on Water Resources and Environment,
U.S. House of Representatives,
2165 Rayburn House Office Building, Washington, DC 20515.
WOTUS Implementation Post-Sackett Decision
Dear Chairman Graves, Chairman Rouzer, and ranking members:
I understand that the House Committee on Transportation and
Infrastructure's Subcommittee on Water Resources and Environment is
taking testimony on experiences and perspectives of the regulated
public on the permitting of projects after the Supreme Court's decision
in Sackett v. EPA. As the Commissioner of Alaska's Department of
Transportation and Public Facilities (DOT&PF), in the state with 63% of
the nation's wetlands, I can assure you that the Corp of Engineer's
(ACE) wetland permitting system has only become slower and more
burdensome post-Sackett. Specific examples of the additional burdens to
the regulated public and slow delivery of permits and decisions
include:
1.) ACE has not established processes or updated regulations for
wetland delineations consistent with Sackett. From outward appearances,
ACE is treating Sackett as a minor modification of the regulatory
landscape rather than a landmark decision.
2.) Staff turnover at the Alaska Regulatory Division of the ACE
has resulted in a limited understanding by staff of the unique
environmental conditions found in Alaska and we are often dealing with
out-of-state ACE project managers.
3.) The Regulatory Guidance Letter No. 05-07; Approved NEPA
Categorical Exclusions for Nationwide Permit (NWP) 23 (2005) has not
been updated to incorporate changes to the FHWA categorical exclusion
list. This has limited the ability of DOT&PF to use NWP 23, and
directly results ACE staff requiring DOT&PF to seek costly and time-
consuming individual permits, rather than the NWP that should be
available for DOT&PF's activities.
4.) The Alaska Regulatory Division of the ACE has limited staff
with expertise in Section 106 of the Historic Preservation Act and,
until recently, the ACE has worked cooperatively with Professionally
Qualified Individuals at DOT&PF fulfill ACE's obligation under Section
106. The ACE's recent transition to an entirely independent Section 106
process result in substantial confusion among Tribes and other
consulting parties.
5.) The ACE's introduction of a new electronic permitting system
for NWPs has slowed the process to receive routine permits. DOT&PF was
not informed of the change and is trying to adapt to the new system
with no guidance from the ACE.
Overall, DOT&PF's experience with wetland permitting post-Sackett
has been disappointing. The ACE's lack of clarity and guidance has had
a negative impact on wetland permitting in Alaska.
I appreciate your giving me the opportunity to report DOT&PF's
experiences and perspectives on ACE's post-Sackett permitting.
Sincerely yours,
Ryan Anderson,
Commissioner, Alaska Department of Transportation and Public
Facilities.
cc: Ryan Hambleton
Corey Kuipers
Letter of September 6, 2024, to Hon. Sam Graves, Chairman, and Hon.
Rick Larsen, Ranking Member, Committee on Transportation and
Infrastructure, and Hon. David Rouzer, Chairman, and Hon. Grace F.
Napolitano, Ranking Member, Subcommittee on Water Resources and
Environment, from 24 State Attorneys General, Submitted for the Record
by Hon. David Rouzer
September 6, 2024.
The Honorable Sam Graves,
Chairman,
Committee on Transportation and Infrastructure, U.S. House of
Representatives, 1135 Longworth House Office Building,
Washington, DC 20515.
The Honorable Rick Larsen,
Ranking Member,
Committee on Transportation and Infrastructure, U.S. House of
Representatives, 2163 Rayburn House Office Building,
Washington, DC 20515.
The Honorable David Rouzer,
Chairman,
Subcommittee on Water Resources and Environment, U.S. House of
Representatives, 2333 Rayburn House Office Building,
Washington, DC 20515.
The Honorable Grace Napolitano,
Ranking Member,
Subcommittee on Water Resources and Environment, U.S. House of
Representatives, 1610 Longworth House Office Building,
Washington, DC 20515.
Dear Chairman Graves, Chairman Rouzer, Ranking Member Larsen, and
Ranking Member Napolitano:
We were happy to learn that the subcommittee on Water Resources and
Environment intends to hold a hearing next week titled, ``Waters of the
United States Implementation Post-Sackett Decision: Experiences and
Perspectives.'' We write to provide our experiences and perspectives as
States. Unfortunately, our recent experiences haven't been good.
A. Sackett v. EPA and a Return to Statutory Text
The Supreme Court's decision in Sackett v. EPA, 598 U.S. 651
(2023), sought to refocus both the Environmental Protection Agency and
the Army Corps of Engineers on the text of the Clean Water Act. For
years, the Agencies had pushed broad understandings of what constituted
``waters of the United States''--the key statutory phrase that defines
the CWA's jurisdictional reach. See 33 U.S.C. Sec. 1362(7). Indeed,
``by the EPA's own admission, almost all waters and wetlands [we]re
potentially susceptible to regulation under [the most recent pre-
Sackett] test.'' Sackett, 598 U.S. at 669 (cleaned up). At the same
time, the Agencies' rules often provided very little guidance to the
parties who had to actually wrestle down whether a particular piece of
land was subject to the Act, including the States. This breadth and
ambiguity was a dangerous mix: ``because the CWA can sweep broadly
enough to criminalize mundane activities like moving dirt, [the
Agencies'] unchecked definition of `the waters of the United States'
mean[t] that a staggering array of landowners [we]re at risk of
criminal prosecution or onerous civil penalties.'' Id. at 669-70.
Sackett should have been a step towards fixing things. Drawing on
earlier precedents and a straightforward reading of the Act (among
other things), Sackett held that ``the CWA's use of `waters'
encompasses only those relatively permanent, standing or continuously
flowing bodies of water forming geographical features that are
described in ordinary parlance as streams, oceans, rivers, and lakes.''
598 U.S. at 671 (cleaned up). They must be ``connected to traditional
interstate navigable waters.'' Id. at 678. Wetlands are also covered
when they are ``indistinguishably part of a body of water that itself
constitutes `waters' under the CWA.'' Id. at 676. That
indistinguishability requires ``a continuous surface connection to
bodies that are `waters of the United States' in their own right, so
there is no clear demarcation between `waters' and wetlands.'' Id. at
678. Applying these principles, the Supreme Court found that the
Sacketts' property did not include covered ``waters'' where it
contained wetlands across a road from a tributary that fed a creek that
in turn fed an intrastate lake. Id. at 662-63, 684.
Although EPA asked the Court to ``defer to its understanding of the
CWA's jurisdictional reach,'' the Court explained that EPA's
understanding was ``inconsistent with the text and structure of the
CWA.'' Sackett, 598 U.S. at 679. Among other things, the Agencies'
approach--which applied an ill-defined ``significant nexus'' test and a
broad understanding of ``adjacent'' wetlands--showed too little respect
to the States' traditional control over land and water regulation. Id.
at 680. Beyond that, the administrative interpretation gave ``rise to
serious vagueness concerns in light of the CWA's criminal penalties.''
Id. This approach was flatly wrong--it not only ``degraded States'
authority'' but also ``diverted the Federal Government . . . into
something resembling a local zoning board.'' Id. at 709 (Thomas, J.,
concurring) (cleaned up).
B. The Agencies' Post-Sackett ``Conforming'' Rule
Given how soundly the Court rejected the Agencies' approach, one
might've expected the Agencies to significantly reevaluate their
methods. They didn't. The administration first condemned the decision
outright. See White House, Statement from President Joe Biden on
Supreme Court Decision in Sackett v. EPA (May 25, 2023), https://
bit.ly/3Xx95V7 (``The Supreme Court's disappointing decision in Sackett
v. EPA will take our country backwards.''). And just a few short months
after the decision, the Agencies issued a terse ``conforming'' rule--
without notice and comment--that made only a handful of changes to the
prior rule that the Supreme Court had so directly condemned. See
Revised Definition of ``Waters of the United States''; Conforming, 88
Fed. Reg. 61964 (Sept. 8, 2023). The Agencies tweaked the definition of
adjacency (for wetlands purposes), removed the significant-nexus test,
and dropped interstate wetlands. Id. at 61965-66.
The Agencies otherwise left everything just as it had been pre-
Sackett. 88 Fed. Reg. at 61966 (explaining that ``[t]he agencies will
continue to interpret the remainder of the definition of `waters of the
United States' '' as they did in the ``2023 Rule,'' as they believed
that was ``consistent with the Sackett decision''); see also id. at
61967 (describing ``the agencies' intent . . . to preserve [any]
remaining portions [of the 2023 Rule] to the fullest possible extent,''
even if other parts are struck down or stayed). Vague administrative
guidance remains in place, and an expansive understanding of ``waters''
still leaves the Agencies free to assert jurisdiction over bits of
water large and small. See Joint Coordination Memo. to the Field
Between the U.S. Dep't of the Army, U.S. Army Corps of Eng'rs & the
U.S. Env't Prot. Agency (Sept. 27, 2023), https://bit.ly/3SDQ4yi
(``[T]he implementation guidance and tools in the [Final Rule] preamble
that address the regulatory text that was not amended by the conforming
rule . . . generally remain relevant to implementing the [2023 Rule],
as amended.''). And even as Sackett reemphasized the importance of
focusing on ``navigable'' waters, 598 U.S. at 672, the Agencies showed
exactly zero concern for navigability. The Agencies also ominously
warned that they would take additional actions to define the statute's
reach, suggesting there's still more to come. 88 Fed. Reg. at 61966.
The Agencies' 2023 rule, as purportedly ``conformed'' by their
later one, remains inconsistent with Sackett in several important ways.
For example:
Although the ``relatively permanent'' standard is a
central part of Sackett, the Agencies have provided effectively no
guidance on how that standard is now to be applied. They instead left
in place guidance from 2023 that had criticized the standard and dubbed
it inadequate. See, e.g., Revised Definition of ``Waters of the United
States,'' 88 Fed. Reg. 3004, 3005 n.2 (Jan. 18, 2023) (declaring that
the ``relatively permanent standard identifies only a subset of the
`waters of the United States' ''); id. at 3007 (``Sole reliance on the
relatively permanent standard's extremely limited approach has no
grounding in the Clean Water Act's text, structure, or history.''); id.
at 3039 (``[T]he relatively permanent standard used alone runs counter
to . . . science.''); id. at 3039-41 (attacking the relatively
permanent standard at length).
To the extent the Agencies did provide guidance, the 2023
Rule proposed to rely--in some ill-defined way--on complicated mapping,
modelling, and ``[g]eomorphic indicator[]'' assessment to determine
whether waters are relatively permanent. 88 Fed. Reg. at 3087. This
approach undermines the certainty and specificity that Sackett promoted
through the use of easily understood items like ``geographical
features.'' Sackett, 598 U.S. at 671 (cleaned up). The rule also does
not discuss volume or duration of water flow, which should be a central
part of evaluating the permanence of water.
The 2023 Rule does not clearly or lawfully define the
``continuous surface connection'' standard that, working with relative
permanence, drives the jurisdictional analysis. Instead, it relies on
connections through nonjurisdictional features, connections that lack
water, and connections that are not ``continuous'' based on any
ordinary understanding of that word. See, e.g., 88 Fed. Reg. at 3095
(refusing to require a hydrologic connection or connection through
jurisdictional waters and instead permitting connection through any
discrete feature, like a pipe); id. at 3096 (``A continuous surface
connection is not the same as a continuous surface water
connection.''); contra Sackett, 598 U.S. at 678 (contemplating a water
surface connection except for ``temporary interruptions . . . because
of phenomena like low tides or dry spells'').
The 2023 Rule refashions numerous intuitive concepts into
the sort of administrative terms of art that would confuse regulated
parties: ``adjacent,'' ``certain times of year,'' ``interstate
waters,'' ``continuous surface connection,'' ``impoundments,''
``relatively permanent,'' ``seasonally,'' and ``tributaries'' are but a
few examples of ordinarily straightforward terms that the 2023 Rule
deploys in tortuous new ways. And it is replete with categories of
regulated waters that leave so much wiggle room for the regulators that
regulated parties will have little chance of convincing the Agencies
that their lands and waters must be excluded. This vagueness creates a
continuing threat of criminal charges for innocent landowners and
others.
The 2023 Rule covers all interstate waters, even if they
are not connected to traditionally navigable waters. Contra Sackett,
598 U.S. at 678. Sackett never hinted that waters are automatically
federally regulated merely because they cross state borders.
The 2023 Rule says the relatively permanent test ``is
meant to encompass'' isolated waters like ``ponds'' and ``impoundments
that are part of the tributary system.'' 88 Fed. Reg. at 3085. Such
coverage is well beyond the ``streams, oceans, rivers, and lakes'' that
were the focus of Sackett's test. 598 U.S. at 671. Disconnected, small
volumes of water should be the most obvious waters falling outside the
reach of ``waters of the United States,'' but the Agencies still seem
to believe they are within their grasp.
In litigation with the States, the Agencies have insisted
that Sackett did not actually require that wetlands be
``indistinguishable'' from traditional waters. Given that
indistinguishability is a central part of Sackett, this insistence is
bizarre. See Glynn Env't Coal., Inc. v. Sea Island Acquisition, LLC,
No. CV 219-050, 2024 WL 1088585, at *4 (S.D. Ga. Mar. 1, 2024) (``The
CWA only extends to wetlands that are indistinguishable from `waters of
the United States' as a practical matter.''). By taking this approach,
the Agencies have created a rule that is ``substantially broader than
the indistinguishability test adopted in the decision.'' Tony Francois,
``Same As It Ever Was''--An Application of a 1980s Classic to EPA and
Army Regulations ``Conforming'' to Sackett v. EPA, CF004 ALI-CLE 627
(Feb. 1, 2024).
Altogether, the Agencies' ``conforming'' rule has not conformed to
Sackett in many serious and substantial ways.
C. The Agencies' On-The-Ground Implementation Post-Sackett
The Agencies' continued unwillingness to meaningfully apply
Sackett's requirements has led to problems on the ground.
In one post-Sackett case, for instance, the Agencies instructed an
Omaha field office to reconsider whether a wetland that is separated
from a supposedly jurisdictional wetland by a 15-foot ``dirt track road
and a seasonally plowed field'' (and that lacks even a ``culvert to
maintain a connection'' to a navigable feature by way of the
``jurisdictional'' wetland) is nevertheless jurisdictional. EPA &
USACE, Memorandum to Reevaluate Jurisdiction for NWO-2003-60436, at 2
(Feb. 16, 2024), https://bit.ly/4gfLLT1. These facts neatly track
Sackett; it should be an easy case. Yet the Agencies suggested the
separate wetlands may be treated as one jurisdictional wetland based on
a slew of factors that need not include any hydrologic connection--and
that may arise from only ``historic'' conditions. Id.
In another recent memorandum applying the ``amended'' 2023 rule,
the Agencies still insist that `` `indistinguishable' is not a separate
element of adjacency,'' and ``the CWA does not require a continuous
surface water connection between wetlands and covered waters.'' EPA &
USACE, Memorandum on NAP-2023-01223, at 2 (June 25, 2024), https://
bit.ly/3Ze7XH7. The Agencies believed the CWA could reach a wetland
connected to a tributary solely by a 70-foot-long pipe under a road.
Id. at 3. They stressed that they did not need to observe any actual
water flow to find the necessary ``continuous surface connection.'' Id.
at 4. Here again, the Agencies seemed unwilling to focus on actual
water and adjacency in the way instructed by Sackett.
In still another instance, the Agencies returned a jurisdictional
determination to the Buffalo field office that had found that a group
of wetlands spanning a 165-acre area should not all be treated as a
single wetland--and should not be deemed ``waters'' because they did
not bear a continuous surface connection. EPA & USACE, Memorandum on
LRB-2021-01386 (Feb. 16, 2024), https://bit.ly/47hONCf. The Agencies
believed that ``a shallow subsurface connection or indicators of a
shallow subsurface connection'' could be enough to link the wetlands
together; these linked wetlands would then be evaluated together to
decide if they had an continuous surface connection, such as abutment.
Id. at 3. In other words, the Agencies pressed the field office to
daisy-chain wetlands together through tenuous, underground, non-
hydrological connections so that even distant wetlands could be tied to
traditionally jurisdictional waters.
And in a last example, the Agencies asserted jurisdiction over a
wetland connected to a ``tidally-influenced ditch'' by way of a 115-
foot-long ``non-relatively permanent drainage ditch and . . . two
culverts that convey surface flow.'' EPA & USACE, Memorandum on SWG-
2023-00284, at 3 & n.3 (June 25, 2024), https://bit.ly/4edpaoh. This
last example is especially troubling because it draws together distant
water features by way of concededly non-jurisdictional water features
like ditches and culverts with temporary flows (at best).
Judging from public reports and anecdotal evidence we've received,
these official determinations are signals of a broader trend. We
understand, for example, that the Agencies are asserting jurisdiction
over dry ditches crossing farms. See Dave Dickey, Is EPA Ignoring the
Supreme Court Decision in Sackett?, Investigate Midwest (July 16,
2024), https://bit.ly/3z7XRgl. EPA also brought an enforcement action
against a landowner for building bulkheads on his farm; EPA
``assert[ed] jurisdiction over many acres of [his] properties that,
except for an occasional big storm, are dry land--much of it planted in
crops.'' App'x to Mot. for Prelim. Injun. at 54, White v. EPA, No. 24-
1635 (4th Cir. Aug. 27, 2024), ECF No. 18-2. And we have been told that
the Agencies have indicated in post-Sackett training sessions that they
will continue to apply as aggressive an approach as they can.
This federal-first mentality is a significant threat to the States.
West Virginia is lined with ephemeral steams. Other States, like Alaska
and Florida, are covered with expansive wetlands. Still other States,
like North Dakota and Iowa, have unique water features like prairie
potholes that could also draw the Agencies' attention. We could go on,
but the point is the same: if the Agencies are going to continue to
insist that just about every water feature (or sometimes, non-water
feature) affords them jurisdiction, then States will be quickly pushed
aside. Yet the States better understand local needs critical to water
regulation. Federal control over all water regulation is not the best
outcome for anyone.
The States take seriously their responsibility to act as stewards
of these vital resources. Protection against water pollution is
important. But Congress has spoken to how it wants to tackle that
problem; the Supreme Court has placed signposts, too. The Agencies
cannot defiantly insist on going their own way.
* * * *
Because the Agencies continue to construe ``waters of the United
States'' inconsistently with Sackett, 27 States have filed suit, with
most having already secured preliminary injunctions. See West Virginia
v. EPA, No. 3:23-cv-00032 (D.N.D. filed Feb. 16, 2023); Kentucky v.
EPA, No. 3:23-cv-00007 (E.D. Ky. filed Feb. 22, 2023); Texas v. EPA,
No. 3:23-cv-00017 (S.D. Tex. filed Jan. 18, 2023). We anticipate those
challenges will ultimately succeed. But if the States and others are to
receive some relief from endless rounds of maneuvering from the
Agencies (and the endless rounds of litigation that come with them),
Congress will almost certainly need to act. Responsible agencies would
have stayed the present rule, re-opened notice and comment, and revised
their approach entirely. The Agencies instead dug in. It's now left to
Congress to dig them out. See, e.g., Brandon Pang, Doesn't Look Like
Anything to Me: Protecting Wetlands by Narrowing the Definition of
``Waters of the United States'', 7 LSU J. Energy L. & Res. 223, 224
(2019) (describing how the ``many controversial and unsuccessful
attempts to resolve this issue'' show that it is ``for Congress to
revisit and amend the CWA, redefining WOTUS once and for all'').
We look forward to working with the subcommittee to move closer to
the clarity and certainty that Sackett sought. Thank you again for the
chance to offer our experiences and perspectives on this important
issue.
Sincerely,
Patrick Morrisey,
West Virginia Attorney General.
Steve Marshall,
Alabama Attorney General.
Tim Griffin,
Arkansas Attorney General.
Treg Taylor,
Alaska Attorney General.
Ashley Moody,
Florida Attorney General.
Christopher M. Carr,
Georgia Attorney General.
Todd Rokita,
Indiana Attorney General.
Russell Coleman,
Kentucky Attorney General.
Lynn Fitch,
Mississippi Attorney General.
Austin Knudsen,
Montana Attorney General.
John M. Formella,
New Hampshire Attorney General.
Raul Labrador,
Idaho Attorney General.
Brenna Bird,
Iowa Attorney General.
Liz Murrill,
Louisiana Attorney General.
Andrew Bailey,
Missouri Attorney General.
Mike Hilgers,
Nebraska Attorney General.
Drew Wrigley,
North Dakota Attorney General.
Dave Yost,
Ohio Attorney General.
Alan Wilson,
South Carolina Attorney General.
Ken Paxton,
Texas Attorney General.
Bridget Hill,
Wyoming Attorney General.
Gentner F. Drummond,
Oklahoma Attorney General.
Marty Jackley,
South Dakota Attorney General.
Sean D. Reyes,
Utah Attorney General.
Statement of American Rivers, Submitted for the Record by Hon. Grace F.
Napolitano
Since 1973, American Rivers has protected wild rivers, restored
damaged rivers, and conserved clean water for people and nature. With
headquarters in Washington, D.C. and nearly 400,000 supporters,
members, and volunteers across the country, we are the most trusted and
influential river conservation organization in the United States,
delivering solutions for a better future.
We are writing to you to express our gratitude for holding a
hearing on ``Waters of the United States Implementation Post-Sackett
Decision: Experiences and Perspectives'' and share our insights and
continued commitment to the protection of America's rivers and streams,
the source of much of American's drinking water.
The Importance of Small Streams and Wetlands
All of America's rivers are fed by small streams and wetlands--
representing tens of thousands of miles of waterways. Not only does
polluting and destroying these small waterbodies lead to local
pollution and flooding, but also the cumulative effects of losing
smaller streams and rivers lead to massive impacts on our larger rivers
and drinking-water systems. Approximately 117 million people--over one-
third of the total U.S. population--get some or all their drinking
water from public drinking-water systems that rely in part on these
streams.\1\ These small streams:
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\1\ 33 USC Sec. 1344
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Protect water quality, ensuring both humans and wildlife
have access to clean water.
Provide natural flood control. The network of small
streams and wetlands hold and store billions of gallons of flood waters
every year that might otherwise wash away homes and property.
Sustain downstream ecosystems. Small streams and wetlands
feed into bigger streams, then rivers, and then bays and estuaries. The
food web and chemical processes that happen within the water are
essential for healthy ecosystems, and it all starts with small streams
and wetlands.
Because small streams and wetlands are the source of the nation's
fresh waters, changes that degrade these headwater systems affect
streams, lakes, and rivers downstream. Land-use changes in the vicinity
of small streams and wetlands can impair the natural functions of such
headwater systems. Changes in surrounding vegetation, development that
paves and hardens soil surfaces, and the total elimination of some
small streams reduces the amount of rainwater, runoff, and snowmelt the
stream network can absorb before flooding.
The increased volume of water in small streams scours stream
channels, changing them in a way that promotes further flooding. Such
altered channels have bigger and more frequent floods. The altered
channels are also less effective at recharging groundwater, trapping
sediment, and recycling nutrients. As a result, downstream lakes and
rivers have poorer water quality, less reliable water flows, and less
diverse aquatic life. Algal blooms and fish kills can become more
common, causing problems for commercial and sport fisheries.
Recreational uses may be compromised. In addition, excess sediment can
be costly, requiring additional dredging to clear navigational channels
and harbors and increasing water filtration costs for municipalities
and industry.\2\
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\2\ American Rivers, Where Rivers are Born, the Scientific
Imperative for Protecting Small Streams and Wetlands. https://
www.americanrivers.org/resource/small-streams-wetlands/
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The natural processes that occur in small streams and wetlands
provide Americans with a host of benefits, including flood control,
adequate high-quality water, and habitat for a variety of plants and
animals. Like small streams, wetlands are also key components of the
nation's network of rivers and streams. Many wetlands, such as marshes
that border lakes or streams, have obvious connections to surface
waters. Other wetlands, however, seem cut off from stream networks--but
that appearance is deceiving. Recent research further documents that
even wetlands that are referred to as ``isolated'' are not isolated at
all but have both hydrologic and biologic linkages to regional aquatic
systems, and thus are referred to as ``geographically isolated'' and
remain significantly related. Wetlands are almost always linked to
stream networks and other wetlands through groundwater.
Benefits Provided by Small Streams and Wetlands
Small streams and wetlands provide natural flood control. When
small streams and wetlands are in their natural state, they absorb
significant amounts of rainwater, runoff, and snowmelt before flooding.
However, when a landscape is altered, such as by a landslide or large
forest fire or a housing development, the runoff can exceed the
absorption capacity of small streams. Moreover, the power of additional
water coursing through a channel can change the channel itself. Humans
often alter both landscape and stream channels in ways that result in
larger and more frequent floods downstream. Natural streambeds are
rough and bumpy in ways that slow the passage of water. In watersheds
that are not carefully protected against impacts of land development,
stream channels often become enlarged and incised from increased
runoff. Changed channels send water downstream more quickly, resulting
in more flooding.
Small streams and wetlands maintain water supplies. Headwater
systems play a crucial role in ensuring a continual flow of water to
downstream freshwater ecosystems, and USGS models show that headwater
streams in the northeastern U.S. contribute 55 percent of mean annual
water volume to fourth- and higher-order streams and rivers. Water in
streams and rivers comes from several sources: water held in the soil,
runoff from precipitation, and groundwater. Water moves between the
soil, streams and groundwater. Wetlands, even those without any obvious
surface connection to streams, are also involved in such exchanges by
storing and slowly releasing water into streams and groundwater, where
it later resurfaces at springs. Because of these interactions,
groundwater can contribute a significant portion of surface flow in
streams and rivers; conversely, surface waters can also recharge
groundwater. If connections between soil, water, surface waters, and
groundwater are disrupted, streams, rivers, and wells can run dry. Two-
thirds of Americans obtain their drinking water from a water system
that uses surface water. The remaining one-third of the population
relies on groundwater sources. The quality and amount of water in both
of these sources respond to changes in headwater streams.
Small streams and wetlands protect water quality. Materials that
wash into streams include everything from soil, leaves, and dead
insects to runoff from agricultural fields and animal pastures. One of
the key ecosystem services that stream networks provide is the
filtering and processing of such materials. Healthy aquatic ecosystems
can transform natural materials like animal dung and chemicals such as
fertilizers into less harmful substances. Small streams and their
associated wetlands play a key role in both storing and modifying
potential pollutants, ranging from chemical fertilizers to rotting
salmon carcasses, in ways that maintain downstream water quality.
Headwater streams maintain biological diversity. Headwater streams
are probably the most varied of all running-water habitats; they range
from icy-cold brooks tumbling down steep, boulder-filled channels to
outflows from desert springs that trickle along a wash for a short
distance before disappearing into the sand. As such, headwater systems
offer an enormous array of habitats for plant, animal and microbial
life. Regionally important riparian plants, such as alder and tamarisk,
exercise a strong influence on headwater streams. Headwater streams in
regions with beavers are vastly different from those in regions without
beavers. Environmental conditions change throughout a stream network.
In wet regions, streams grow larger and have wider channels, deeper
pools for shelter, and more permanent flow as they move downstream. In
arid regions and even humid regions during dry periods, headwater
streams may become smaller downstream as water evaporates or soaks into
a streambed. With this variety of influences, headwater streams present
a rich mosaic of habitats, each with their own characteristic community
of plants, animals, and microorganisms.
The Impacts of Sackett v. EPA
The Supreme Court's Sackett decision has had the effect of severely
confusing the landscape of stream and wetland protections, putting
clean water at risk, increasing flood risk, destroying pristine habitat
and putting significant burdens on states. These changes have real
local impact, as American Rivers has found across the country.\3\
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\3\ American Rivers. America's Most Endangered Rivers Report. See:
https://www.americanrivers.org/wp-content/uploads/2024/04/
AmericasMostEndangeredRivers%C2%AEof
2024Report.pdf
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California
In the absence of federal protections from the Clean Water Act,
each state has the authority to regulate their waters beyond the
minimum standard. Most states opt to meet said minimum, but some go
above it. In 2019, the California State Water Board predicted that
federal protections could be shifting and acted to expand their
definition of ``waters of the state''.
The result was a return to the historically favored definition of
``waters of the state'' referencing, all waters within the state. This
includes the primary victims of the Sackett decision: isolated wetlands
and small streams. California wetlands are a pertinent case, as their
wetland acreage has grown from 2.9 million acres--10% of its historical
extent--to 3.9 million acres \4\. When many places in the US are
continuously losing wetlands, California is leading in wetland
restoration. One such example is the Dutch Slough, a long-term effort
to recover 30,000 acres of wetland habitat \5\. These projects function
as more than simple conservation, as the Dutch Slough is predicted to
offset carbon emissions equal to the annual use of 1000 cars. The
restoration efforts are occurring at both a large and small scale as
well, with the Southern California Restoration Project listing 306
different projects, the large majority being smaller, community led and
organized endeavors \6\.
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\4\ California Wetlands Portal. https://mywaterquality.ca.gov/
eco_health/wetlands/extent/
index.html#: :text=According%20to%20the%20State%20of,wetlands%20that%20u
ses%20new
%20data
\5\ Berkeley, Rausser College of Natural Resources, Wetland
restoration helps California combat climate change. https://
ourenvironment.berkeley.edu/news/2023/04/wetland-restoration-helping-
california-combat-climate-change
\6\ Southern California Wetlands Recovery Project 2024. https://
scwrp.org/projects/page/6/
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Colorado
Two-thirds of Colorado's waters have temporary flows, and Colorado
has historically relied on federal protections for these waters. This
is why on March 20th, 2023, Colorado House Democrats introduced a bill
to restore protections to at least pre-Sackett levels, as California
had done before \7\. Tom Caldwell, a local brewery owner commented ``As
the owner of a brewery in a resort town I depend on cold, clean water
to craft award-winning beers. Clean water allows me to run my business,
create jobs and contribute sales tax revenue for my community [ . . . ]
we need to protect our waterways and wetlands.''
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\7\ HB24-1379 Regulate Dredge & Fill Activities in State Waters.
https://www.cohousedems.com/news/joint-release%3A-legislation-to-
protect-streams%2C-rivers-and-wetlands-in-colorado-introduced
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New Mexico
Imagine you are a rural farmer in an arid climate. In such places,
usually your irrigation only flows seasonally, or perhaps after
rainfall, and the river that you draw from is dry otherwise. For as
long as you know, the river has been recognized as a legitimate water
feature. Now imagine a new surveyor visiting during a period where
there is no water in the river. From this they conclude that your
river, for regulatory purposes, is not actually a body of water. This
is sadly what could happen in New Mexico.
New Mexico is likely the most dire place in the nation in the wake
of Sackett. The ``continuous surface connection'' rule most obviously
affects isolated wetlands. However, another condition for protection
under Sackett is for the water to be ``relatively permanent''. In New
Mexico, up to 95% of stream and river mileage does not run year round
\8\. Overall, 67% of surface water supplying the public drinking water
system in New Mexico comes from intermittent, ephemeral, or headwater
streams, equaling 1996 miles overall (though that proportion can rise
higher than 87% depending on location) \9\. Sackett has at once
jeopardized all of this.
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\8\ New Mexico Waters Protected and At Risk in the Wake of the
Sackett Decision. https://smumn.maps.arcgis.com/apps/dashboards/
1c2208e510114287a7b55ea1e7fc3f54
\9\ National Hydrography Dataset Plus at medium resolution; Federal
Safe Drinking Water Information System 4 Quarter 2006 Data. https://
www.epa.gov/sites/default/files/2015-06/
documents/
2009_10_15_wetlands_science_surface_drinking_water_surface_drinking_
water_nm.pdf
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Large rivers, like the Rio Grande, while still protected, are made
up of thousands of small streams and are influenced by many isolated
wetlands. If the smaller streams flowing into larger rivers are
polluted, the result is a polluted river.
This has real consequences. For the residents of Santa Fe, it means
your river of the same name can be polluted through the 10 mile stretch
that goes through the center of the city \10\. For the Tewa people, it
means your land's life blood could turn to poison as White Rock Canyon
is contaminated. For farmers using acequias (community-based irrigation
ditches), it means your ability to grow the food traditional to your
community is now in question. For trout fishers and white water
rafters, it means the waters you rely on may no longer be able to
sustain your business. And for almost all New Mexicans, the quality of
your drinking water is at the mercy of how well treatment plants filter
the intermittent stream and river water that is no longer regulated.
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\10\ Story Map on Protect New Mexico Waters. See: https://
nmwaters.org/#section_d74cb5116
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North Carolina
While Sackett ostensibly aims to settle confusion on what is
regulated and what is not, it has actually done the opposite. In North
Carolina, state regulations on waters are set to the minimum of what is
federally required as of the Farm Act of 2023 \11\. There are over 4
million acres of wetlands in North Carolina, totaling nearly 14% of its
overall area \12\. In light of Sackett, even the most optimistic
predictions are frightening, with anywhere between 34 and 72% of
wetlands losing protections \13\. This variation is due mostly to how
``indistinguishability'' is interpreted. When flooded, some wetland
types, such as riverine swamp forests, appear indistinguishable from
permanent streams and rivers that connect with it. If the broadest
definition is applied, it could mean that almost no wetlands are
regulated.
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\11\ GENERAL ASSEMBLY OF NORTH CAROLINA SESSION 2023 SENATE BILL
582 RATIFIED BILL. https://www.ncleg.gov/Sessions/2023/Bills/Senate/
PDF/S582v7.pdf
\12\ Carolina Wetlands Association. State of Wetlands. https://
www.carolinawetlands.org/
state-of-the-
wetlands#: :text=Wetland%20Types%20and%20Abundance,million%20acres%20in
%20South%20Carolina.
\13\ Atwater, Will. March 26, 2024. Environmental advocates use
events to spread awareness about the potential loss of wetlands and the
need to protect surface water. https://www.northcarolinahealthnews.org/
2024/03/26/environmental-advocates-use-events-to-spread-awareness-
about-the-potential-loss-of-wetlands-and-the-need-to-protect-surface-
water/
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Examples of this are found throughout North Carolina. Beaver Marsh
is a 32-acre reserve just north of downtown Durham, along the Ellerbe
Creek which runs through the city. The wetland in figure X is just
across from the one in figure Y, but they have a critical difference in
whether or not they are regulated under Sackett. One has regularly
flowing streams into Ellerbe Creek, a regulated water, while the other
has its (relatively permanent) stream blocked by a berm. This means the
first is regulated and the second is not. Is there any real difference
between the two in how they affect Ellerbe Creek? No, and frankly
Sackett does not account for this in the slightest. Near Hill Street
Park in Raleigh there is a headwater wetland that connects to a
permanent stream, but the wetland itself only has surface water during
parts of the year, making it ``distinguishable'' at most times, and
therefore unregulated as well.
These loose protections give free reign to developers to pollute as
they please in these waters; pollution that will feed into what are
legally protected waters such as Ellerbe Creek, and into drinking water
sources as is often the case with headwater streams and wetlands \14\.
However indistinguishability and relative permanence are defined going
forward, it will be sorely inadequate to continue the state's 20
yearlong trend of no-net-loss in wetlands as things are under Sackett
\15\.
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\14\ Development of a Wetland Monitoring Program for Headwater
Wetlands in North Carolina. May 2008. https://www.ncwetlands.org/wp-
content/uploads/NC_Headwater_Wetlands_
Monitoring_Grant-1-Final-Report-with-Revisions-10-2008-b.pdf
\15\ Kurki-Fox, Jack; Branan, Andrew; Burchell, Mike; N.C.
Cooperative Extension, The Status and Trends of Wetland Loss and Legal
Protection in North Carolina. https://content.ces.ncsu.edu/the-status-
and-trends-of-wetland-loss-and-legal-protection-in-north-carolina
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Georgia
The Okefenokee Swamp, located mostly in southern Georgia, is a
national treasure. Okefenokee is an almost entirely untouched
blackwater swamp spanning 438,000 acres, containing over 620 species of
plants and hundreds of species of birds, reptiles, and mammals \16\. It
is uniquely undisturbed by human activity, so much so that it is under
consideration to become a UNESCO World Heritage Site for its pristine
state \17\. Sackett is the latest, and perhaps greatest, challenge in
preserving this national treasure.
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\16\ United States Fish and Wildlife Service. Okefenokee National
Wildlife Refuge Amphibians, Fish, Mammals and Reptiles List. https://
www.fws.gov/sites/default/files/documents/okfmam.pdf
\17\ UNESCO World Heritage Center 1992-2024. https://
whc.unesco.org/en/tentativelists/5252/
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Twin Pines Minerals applied to mine for titanium oxide in 582 acres
of Trail Ridge in March 2020 \18\. Trail Ridge borders the east of
Okefenokee, with the closest site being just a few hundred feet away.
The mining will take place on and near wetlands that are dangerously
close to Okefenokee, with predictions stating the project will withdraw
more than 1.4 million gallons of water a day \19\. The company's self-
funded study concluded this would not negatively impact Okefenokee;
researchers at the University of Georgia along with other institutions
across the nation strongly insist otherwise \20\.
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\18\ Twin Pines Minerals, LLC. https://
twinpinesmineralscharlton.com/
\19\ Associated Press. March 4, 2024. Mining Company Can't Tap
Water Needed for Okefenokee Wildlife Refuge, US Says https://
www.usnews.com/news/us/articles/2024-03-04/mining-company-cant-tap-
water-needed-for-okefenokee-wildlife-refuge-us-says
\20\ Comments on TPM LLC Draft Mining Land Use Plan (and supporting
documents) submitted to Georgia EPD. See: https://
protectokefenokee.org/wp-content/uploads/2023/03/MLUP-comments-CRJ-
submitted-to-EPD.pdf
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The mine has a back and forth history. Their application to federal
regulators went through under the Trump-era Navigable Waters Protection
Rule in 2022, which concluded similarly to Sackett that wetlands
without surface connection should not receive protections \21\. Though
the Biden administration reversed those rules, the advent of Sackett
guarantees that Trail Ridge is not federally protected and is subject
only to state level regulation. Currently, the Georgia state government
has approved a ``demonstration mine'', with Twin Pines mining hoping to
prove they can operate with minimal environmental impact \22\. Multiple
organizations such as Georgia River Network, the Southern Environmental
Law Center, and more have already pointed out the flaws in leaving the
long-term health of Okefenokee up to a rigged ``experiment'' \23\.
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\21\ Bynum, Russ. Associated Press. August 22, 2022. https://
apnews.com/article/lawsuits-georgia-wildlife-army-
90389deefb681953d68fd69cb2054e2d
\22\ Twin Pines Minerals Proposed Saunders Demonstration Mine SAS-
2018-00554 Application via PowerPoint Presentation. See: https://
www.sas.usace.army.mil/Portals/61/docs/TPM%20Permit%20Application%20-
%20TTL.pdf?ver=2020-05-12-215022-183
\23\ [Editor's note: American Rivers did not list a citation for
footnote 23.]
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There is federal will to save Okefenokee, but the methods are
uncertain and treading new ground. The Fish and Wildlife Services have,
in an unprecedented move, claimed federal rights to Okefenokee's water,
hoping to stop development on those grounds \24\. This shows that there
is strong federal will to protect Okefenokee, but it is much harder to
achieve with the loss of protections following Sackett. There is still
opportunity to act, and the outpouring of public support is a positive
sign. The recent public comment period in the Georgia state legislature
attracted 78,632 written comments and 115 oral comments, with almost
none of them being in favor of the mine \25\. This is a chance to send
a national message that, despite opposing forces, the country is still
in the business of protecting our waters.
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\24\ Letter from U.S. FWS to Georgia EDP. See: https://
aboutblaw.com/bc54
\25\ Nolin, Jill. Georgia Recorder. March 6, 2024. Okefenokee mine
opponents, backed by feds, call for Georgia EPD to thwart Twin Pines
dig. https://georgiarecorder.com/2024/03/06/okefenokee-mine-opponents-
backed-by-feds-call-for-georgia-epd-to-thwart-twin-pines-dig/
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Why Sackett is a Burden
Today, now more than ever, Congress must reaffirm its commitment to
the objective of the original, bipartisan Clean Water Act by
reinstating protections for waters and wetlands that the Sackett
decision removed.
Even in an ideal world where every state has comprehensive
individual protections, Sackett would still be a burden. Aside from the
improbability of every state being willing to responsibly protect their
waters, agency resources limit what can actually be done. State level
organizations simply do not have the size or funding that the EPA does.
Perhaps this is not an issue for a wealthy state like California, but
what of places like New Mexico, West Virginia, or Louisiana? The power
of those state governments does not equal what is possible on a federal
level. In the long term, a federal return to standard is necessary;
this is not a case where leaving it to the states is the most efficient
or fair solution.
Recommendations
The Clean Water Act was passed with a goal to ``restore and
maintain the chemical, physical and biological integrity of the
Nation's waters.'' While the Clean Water Act, and the EPA's efforts to
enforce it have made gains in improving our nation's waters since the
passage of the act, there is still much work to do. We recommend the
following:
1. Support a comprehensive definition of the ``Waters of the
United States'' that includes small streams and wetlands as Congress
intended when the law was amended and passed in 1972.
2. Increase federal funding to conservation programs that
prioritize acquiring lands through voluntary measures such as easements
to protect aquatic areas or programs that compensate landowners not to
develop on wetlands.
3. Enhance enforcement of state, tribal, and local water
protections currently on the books and increase funding for enforcement
agencies.
4. Support a scientifically robust review process under Section
401 to ensure states and tribes have the specific authority to
condition or deny water quality certifications for infrastructure
projects.
5. Direct EPA to update its technology-based limits for industry
water pollution control systems as frequently and consistently as
possible to protect public health.
6. Strengthen the Clean Water Act by closing its loophole for
agricultural runoff and other ``nonpoint'' sources of pollution, which
are by far the largest sources of impairments in waterways across the
U.S.
7. Consider more consistent, universal guidelines for waterway
impairment designations for all 50 states, and for gauging unhealthy
levels of key pollutants like nitrogen.
8. Make it easier to effectively enforce key provisions and
requirements of the Clean Water Act, including the cleanup plans--
called ``Total Maximum Daily Loads''.
9. Boost funding for the EPA and state environmental agency staff
required to measure water quality, and to develop and implement the
cleanup plans needed to bring impaired waterways back to life.
10. Require EPA to produce and publish an updated National Water
Quality Assessment report, which they are required to send to Congress
biennially under section 305(b) of the Clean Water Act. Congress should
also require the EPA to update their data requirements to include
improved information on stormwater pollution.
We would like to thank the Subcommittee on Water Resources and the
Environment for the opportunity to share these observations and our
report with you. We would be happy to answer any additional questions
the committee may have on this subject and we are happy to be a
resource in the future. Our organization is fully committed to working
with you on these timely federal water issues and appreciate your
strong leadership. Thank you for your consideration.
Sincerely,
Gary Belan,
Senior Director, Clean Water Supply.
Jaime D. Sigaran,
Associate Director, Policy and Government Relations.
Letter of September 10, 2024, to Hon. Sam Graves, Chairman, and Hon.
Rick Larsen, Ranking Member, Committee on Transportation and
Infrastructure, and Hon. David Rouzer, Chairman, and Hon. Grace F.
Napolitano, Ranking Member, Subcommittee on Water Resources and
Environment, from Felice Stadler, Vice President, Government Affairs,
National Audubon Society, Submitted for the Record by Hon. Grace F.
Napolitano
September 10, 2024.
The Honorable Sam Graves,
Chair,
Committee on Transportation and Infrastructure.
The Honorable Rick Larsen,
Ranking Member,
Committee on Transportation and Infrastructure.
The Honorable David Rouzer,
Chair,
Subcommittee on Water Resources and Environment.
The Honorable Grace Napolitano,
Ranking Member,
Subcommittee on Water Resources and Environment.
Re: Subcommittee Hearing Titled, ``Waters of the United States
Implementation Post-Sackett Decision: Experiences and Perspectives''
Dear Chair Graves, Ranking Member Larsen, Subcommittee Chair
Rouzer, and Subcommittee Ranking Member Napolitano,
I am writing in response to the announced hearing to examine how
the U.S. Environmental Protection Agency (EPA), the U.S. Army Corps of
Engineers (USACE), states, and other stakeholders are implementing the
Supreme Court's decision in Sackett v. EPA. On behalf of the National
Audubon Society and our 1.4 million members and supporters, I write to
reiterate concerns that the Sackett decision undermines the Clean Water
Act and threatens water quality throughout the nation, impacting birds,
people, and communities.
Audubon's mission is to protect birds and the places they need--and
birds need clean water. Waterways throughout the United States serve as
essential habitat for birds and other wildlife, including smaller
waterbodies like seasonal streams and isolated wetlands. These water
bodies provide crucial sources of drinking water, food, and nutrition
for birds. Birds also use lakes, streams, and wetlands for breeding and
nesting, as well as for rest stops during long migratory journeys.
Something that may look like a disconnected pond to us could be
providing critical migratory habitat for birds traveling throughout the
country.
Sadly, we know we have lost 3 billion birds in the past 50 years--
in part due to dwindling wetlands and significant development of
natural spaces--and we know that two-thirds of North American bird
species are at risk of extinction from climate change. Birds are
telling us that action is needed now to stop these declines. The health
of birds is directly tied to the health of communities across the
nation and declines in bird health also impact the economy directly, as
96 million Americans engage in birding-related activities every year,
contributing $100 billion to local economies annually.
Unsurprisingly, the same threats facing birds are also impacting
people and communities throughout the nation. Wetlands and seasonal
streams provide more than just critical bird habitat--they also provide
us with nature's filters to clean our drinking water and protect us
from storms, floods, and other climatic stressors. Too many low-income
communities, Tribal communities, and communities of color do not have
consistent access to safe, affordable drinking water. Strong
protections under the Clean Water Act are needed to support clean water
and flood resilience for communities.
The Sackett decision curtailed the ability of the EPA and the USACE
to regulate waters of the United States, particularly wetlands and
smaller waterways which may be seasonal or ephemeral. The ruling
limited the ability of the federal agencies to permit activities on
many of these smaller waterways and opened opportunities for
unregulated development to occur in many of these critical ecosystems.
The ruling relegated regulatory authority of smaller waterways back to
the states--in essence creating a 50-state patchwork of water
regulations across the nation.
As birds migrate throughout the hemisphere, so too does water
migrate throughout watersheds and across political boundaries. This
makes regulation of clean water a federal responsibility--as the
bipartisan creators of the Clean Water Act originally intended.
Reducing federal regulatory jurisdiction decreases the ability for
federal oversight and management of our nation's waterways. Before
Sackett, federal permits were subject to NEPA review and many states do
not have a state-level equivalent for environmental review and public
comment.
The 50-state patchwork of regulations creates uncertainty.
Establishing an appropriate state regulatory program requires
resources, time, dedication, expertise, and staff. Wetland permitting
requires scientific and technical expertise which many state agencies
lack. Without sufficient budgeting, expertise, and authority, any
state-created program is destined to fail in protecting smaller
waterbodies from unregulated dredge and fill.
Audubon urges your Committee to move past partisan reactions to the
Sackett decision and focus on solutions that birds and people need.
Congress must take action to fill the regulatory gap created by Sackett
and ensure the true intent of the Clean Water Act--providing as many
tools in the toolbox as necessary to protect all of our nation's
waterways for birds and people.
Sincerely,
Felice Stadler,
Vice President, Government Affairs, National Audubon Society.
Letter of September 10, 2024, to Hon. Sam Graves, Chairman, and Hon.
Rick Larsen, Ranking Member, Committee on Transportation and
Infrastructure, and Hon. David Rouzer, Chairman, and Hon. Grace F.
Napolitano, Ranking Member, Subcommittee on Water Resources and
Environment, from the Clean Water for All Coalition, Submitted for the
Record by Hon. Grace F. Napolitano
September 10, 2024.
The Honorable Sam Graves,
Chairman,
Committee on Transportation and Infrastructure, United States House of
Representatives, 1135 Longworth House Office Building,
Washington, DC 20515.
The Honorable Rick Larsen,
Ranking Member,
Committee on Transportation and Infrastructure, United States House of
Representatives, 2163 Rayburn House Office Building,
Washington, DC 20515.
The Honorable David Rouzer,
Chairman,
Subcommittee on Water Resources and Environment, United States House of
Representatives, 2333 Rayburn House Office Building,
Washington, DC 20515.
The Honorable Grace Napolitano,
Ranking Member,
Subcommittee on Water Resources and Environment, United States House of
Representatives, 1610 Longworth House Office Building,
Washington, DC 20515.
Re: Subcommittee Hearing Titled, ``Waters of the United States
Implementation Post-Sackett Decision: Experiences and Perspectives''
Chairman Graves, Ranking Member Larsen, Subcommittee Chairman
Rouzer, and Subcommittee Ranking Member Napolitano,
The undersigned members and partners of the Clean Water for All
Coalition are writing in response to the announced hearing to examine
how the U.S. EPA (``EPA''), the U.S. Army Corps of Engineers
(``USACE''), states, and other stakeholders are implementing the
Supreme Court's decision in Sackett v. EPA. We write to share our
concerns that the Supreme Court's decision makes it impossible for the
country to achieve Congress's objective in passing the Clean Water Act:
to ``restore and maintain the chemical, physical, and biological
integrity of the Nation's waters.''
Clean Water for All is a national coalition that brings together
diverse organizations to advance equitable policies that promote and
increase clean water protections, access, and affordability across the
nation. Our members are from all across the country and include hunters
and fishers, local waterkeepers, environmental justice advocates, and
sustainable businesses.
The membership recognizes that clean and abundant water resources
are important for public health, agriculture, transportation, flood
control, climate resilience, energy production, recreation, fishing and
shellfishing, municipal and commercial uses, indigenous cultural
practices, and much more--because our waters are all intimately
connected. For example, polluting or destroying a community's local
wetlands or streams threatens its groundwater reserves and can worsen
flood risks during intense storms. What happens to a community's
streams and wetlands will also impact the quality of the water that
their downstream neighbors have, which they often rely on for drinking
water and other important uses.
Before the Clean Water Act, a patchwork of state requirements
failed to prevent water bodies--from large, iconic rivers and lakes to
neighborhood creeks and ponds--from harmful levels of pollution. A
state-by-state approach without a federal backstop of safeguards
enabled a ``race to the bottom,'' where states with weaker protections
became safe havens for polluters. It led to some of the worst
environmental crises in our nation's history:
The Delaware River was so polluted it darkened the paint
on passing ships.
26 million fish died in a single Florida lake in January
1969, triggered by food processing plants dumping waste into a creek
upstream.
An oil spill in 1969 near Santa Barbara spewed an
estimated 3 million gallons of crude oil into the Pacific Ocean--
killing thousands of birds, fish and sea mammals.
Lake Erie was considered ``functionally dead,'' with
pollution from factories, sewage and farms triggering algal outbreaks
that smeared beaches and killed fish.
The federal government dumped nearly 50,000 drums of low-
level radioactive waste in the Pacific Ocean west of San Francisco
between 1946 and 1970.
General Electric discharged more than one million pounds
of Polychlorinated Biphenyls (PCBs) in the Hudson River over a 30-year
period. A 200-mile stretch of the river remains contaminated to this
day.
In response, Congress passed the Clean Water Act--an ambitious law
that aimed to make water bodies swimmable and fishable by 1983 and to
eliminate pollutant discharges by 1985. The law's various protections--
including its broad applicability to waters of all types--drove towards
these goals and were instrumental in waterways across the nation
becoming far cleaner. Waters that were once effectively open sewers
came back to life and became treasured destinations for recreation and
commerce.
But the Clean Water Act did not fully achieve its objective, as two
recent reports make clear. In March, the U.S. Fish & Wildlife Service
released a report to Congress about wetland trends in the continental
United States during the period from 2009-2019. That report revealed
that the rate of wetlands loss in the country accelerated in recent
years, and that the nation has lost approximately 670,000 acres of
vegetated wetlands, mostly by conversion to much less ecologically
valuable ponds. And just two weeks ago, EPA's Office of Water released
the National Lakes Assessment 2022 Report, evaluating the health of our
nation's lakes between 2017 and 2022. Half of the country's lakes are
in poor condition due to nutrient pollution, and both the number of
lakes with good shallow water habitat and the number of lakes with good
ratings for lakeshore disturbance decreased by nine percent. The
detection of microcystins--toxins created by algae outbreaks--increased
by almost 30 percentage points, to 50%. These results reveal that the
work of the Clean Water Act was far from done.
And then the Supreme Court made things far worse. In May 2023, the
Court decided Sackett v. EPA, the worst judicial rollback of
environmental protections ever. That ruling said that the federal Clean
Water Act does not protect most types of wetlands, even though they are
critically important by themselves and for the health of all kinds of
other waterbodies. The Court also limited the law's ability to protect
many other waters. The decision removed federal protections for
millions of acres of wetlands and thousands of stream miles throughout
the country. The decision has serious consequences across the country
and has endangered the drinking water sources of tens of million
people. The harm of the Court's decision is difficult to overstate, and
it will only get worse with time, as new activities destroy and pollute
waters without the kinds of pollution controls and required mitigation
the Clean Water Act would have required.
Yet polluters are not satisfied. They are attempting to remove even
more protections across the country. For one, through litigation
challenging the regulatory changes following Sackett, several parties
are pushing for rulings that would further weaken the Clean Water Act
and would make water bodies' protections depend on novel and vague
concepts--an approach completely at odds with their alleged interest in
clarity and regulatory stability. In addition, corporate polluters and
developers have worked to weaken state-level clean water protections
and oppose states' efforts to strengthen their safeguards to fill in
the gap Sackett created, which is in substantial tension with rhetoric
supporting states' ability to formulate their own policies on clean
water.
After Sackett, countless water bodies will be vulnerable to
pollution and destruction without Clean Water Act safeguards; these
harms could be magnified if industry efforts succeed. Protections for
wetlands and other waters left at risk vary significantly from state to
state. And, as the enclosed report, ``Sackett v. EPA: The State of Our
Waters One Year Later'' by Clean Water for All, reveals, enacting
protections to fill the gaps the decision created is difficult--
especially when some states have sought to weaken their programs to
limit protections only to those waters that the Court allowed the
federal law to cover.
Without intervention, the deregulation from Sackett will exacerbate
these negative trends, endangering the wetlands and waterways we depend
on for drinking water, flood resilience, thriving economies, and
recreation and enjoyment. Everyone should have to play by the same set
of rules, and whether your water is protected shouldn't depend on what
zip code you happen to live in. Ultimately, leaders in Congress will
need to repair the harm that the Supreme Court caused. In the meantime,
however, because each day that passes with diminished protections will
mean more wetlands and streams polluted and destroyed, we encourage
Congress to support state efforts to strengthen their own laws.
Sincerely,
Alabama Rivers Alliance.
American Rivers.
Amigos Bravos.
Bayou City Waterkeeper.
Bright Neighborhood CDC.
Center for Water Security and Cooperation.
Clean Water Action.
Committee on the Middle Fork Vermilion River.
Earthjustice.
Environmental Law & Policy Center.
Environmental Protection Network.
For Love of Water (FLOW).
Freshwater Future.
Friends of the Rouge.
GreenLatinos.
Huron River Watershed Council.
Idaho Rivers United.
Illinois Division, Izaak Walton League of America.
Indiana Sportsmens Roundtable.
Iowa Environmental Council.
Izaak Walton League of America.
Just Transition Northwest Indiana.
Kentucky Waterways Alliance.
Lake Erie Advocates.
Lake Superior Watershed Conservancy.
Latino Farmers & Ranchers International, Inc.
League of Conservation Voters.
Massachusetts Rivers Alliane.
Milwaukee Riverkeeper.
National Wildlife Federation.
Natural Heritage Institute.
Natural Resources Defense Council.
Ohio Environmental Council.
Ohio Division of the Izaak Walton League of America.
Park Watershed.
PennFuture.
Potomac Riverkeeper Network.
River Alliance of Wisconsin.
River Network.
Sierra Club.
Socially Responsible Agriculture Project.
SOH2O Save Our Water.
Southern Environmental Law Center.
Tip of the Mitt Watershed Council.
Universal Access to Clean Water for Tribal Communities.
Verde.
Waterkeeper Alliance.
Waterkeepers Chesapeake.
Winyah Rivers Alliance.
Young, Gifted & Green.
Letter of September 11, 2024, to Hon. David Rouzer, Chairman, and Hon.
Grace F. Napolitano, Ranking Member, Subcommittee on Water Resources
and Environment, from Jim Murphy, Senior Director, Legal Advocacy,
National Wildlife Federation, Submitted for the Record by Hon. Grace F.
Napolitano
September 11, 2024.
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 Chair Rouzer and Ranking Member Napolitano,
On behalf of the National Wildlife Federation, we are writing to
share our perspective ahead of the Subcommittee on Water Resources and
Environment hearing entitled ``Waters of the United States
Implementation Post-Sackett Decision: Experiences and Perspectives.''
This issue is of utmost importance to the National Wildlife Federation
and our nearly seven million members and supporters. We remain
seriously concerned with the devastating impacts of the Supreme Court's
decision in Sackett v. EPA on our nation's waters and wildlife habitat.
The Sackett decision has instigated the largest setback for clean
water in over half a century. It is a major threat to public health and
wildlife as well as access to cultural resources, traditions, and
outdoor recreation. Small streams and wetlands that are no longer
federally protected in light of Sackett provide clean water for
farmers, supply drinking water to tens if not hundreds of millions of
people, keep the economy afloat, protect communities from floods,
provide fish and wildlife habitat, and serve as natural features to
promote drought resilience. Without a strong federal baseline that
adequately protects these waters nationwide, the burden falls to states
and localities to protect wetlands and streams. History has shown us
that this state-by-state approach is not enough to ensure the
protection of our waters for future generations.
The National Wildlife Federation is the nation's largest
conservation education and advocacy organization with a long history of
protecting 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 to
pass the Clean Water Act in 1972 and have worked hard to fulfill its
promise of clean water for all Americans ever since.
Fifty Years Ago: A Bipartisan Clean Water Act to Address Our Waters in
Crisis
The patchwork of different state laws in place before the Clean
Water Act was signed into law failed to ensure safe water quality for
people and wildlife. The Delaware River was so polluted it darkened the
paint on passing ships. The Cuyahoga River caught fire more than a
dozen times and was so fouled from industrial and sewage waste that it
``oozes rather than flows.'' Lake Erie was considered ``functionally
dead'' with pollution from factories, sewage and farms triggering algal
outbreaks that smeared beaches and killed fish. In Washington, DC, the
Potomac River was little more than an open sewer, leading TIME magazine
to write the ``Potomac River reaches the nation's capital as a pleasant
stream, and leaves it stinking from the 240 million gallons of wastes
that are flushed into it daily.'' \1\
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\1\ National Wildlife Federation. Five Decades of Clean Water.
https://www.nwf.org/-/media/Documents/PDFs/NWF-Reports/2022/Five-
Decades-of-Clean-Water1
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In response, Congress passed the bipartisan Clean Water Act.
Through a cooperative federal-state partnership, 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 or destruction in
many more.\2\ As a result, the number of waters that meet clean water
goals has doubled since the passage of the Clean Water Act.
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\2\ National Wildlife Federation. Five Decades of Clean Water.
https://www.nwf.org/Educational-Resources/Reports/2022/Five-Decades-of-
Clean-Water
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Strong Measures to Protect Clean Water are Still Needed
Despite the progress made, there remains a long way to go to
achieve clean water for all. The United States has lost over half of
our wetlands since European colonization, and the latest Wetlands
Status and Trends report from the U.S. Fish and Wildlife Service shows
that this trend is continuing.\3\ Between 2009-2019, the rate of
wetland loss has increased by 50%.\4\ During the last decade, an area
of vegetated wetlands greater than the size of Rhode Island disappeared
from the landscape.
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\3\ National Wetland Inventory. https://www.fws.gov/program/
national-wetlands-inventory/web-mapping-services
\4\ United States Fish and Wildlife Service 2019 Wetlands Status
and Trends Report. https://www.fws.gov/project/2019-wetlands-status-
and-trends-report
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The latest Wetlands Status and Trends report makes clear that we
need to improve our approach to wetlands conservation in the United
States. However, the Supreme Court's decision in Sackett v. EPA
threatens the 50 years of progress made to clean up our rivers and
restore our wetlands. According to the Environmental Protection Agency,
the Sackett decision has had the effect of removing federal Clean Water
Act protections from up to 63% of wetlands and up to 4.9 million of
miles of streams.\5\ Now, the burden falls to states and localities to
protect these waters.
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\5\ Environmental Protection Agency. https://www.youtube.com/
watch?v=lcCVelsAy2c&ab_
channel=U.S.EPA
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The Clean Water Act's regulatory framework is founded on strong
federal-state partnerships (cooperative federalism). As such, a strong
Clean Water Act is the foundation for strong state efforts. Although
some states and Tribal governments have programs that separately
protect some wetlands and streams, many others do not or lack the
resources to adequately do so. As was true before the Clean Water Act's
passage, the resulting patchwork of state protections are not an
adequate substitute for a uniform federal baseline.
Additionally, several states and Tribes have laws in place
prohibiting the regulation of waters beyond those covered by the Clean
Water Act. Many states that do wish to be protective of wetlands and
streams do not currently have the resources or expertise to do so, and
there is little to no federal funding available to resource state
wetland programs. States that do have the resources and expertise to
safeguard wetlands can only do so much to protect watersheds shared
with other states that may have no or lesser protections in place.
Healthy Waters Protect Communities, Wildlife, and Economies
The Sackett decision comes at a time when communities need the
natural benefits of wetlands and streams more than ever. The wetlands
under threat store and slowly release water downstream, naturally
protecting communities from flood and storm surge, recharging
groundwater, improving water quality, storing carbon, shoring up water
supplies in times of drought, serving as fish and wildlife habitat, and
providing access to cultural resources.
Protecting and restoring wetlands helps mitigate the damage from
increasingly severe storms and floods, which continue to
disproportionately impact socially vulnerable communities. Wetlands
play an enormous and low-cost role in absorbing floodwaters. For
instance, one single acre of wetland can store 1 to 1.5 million gallons
of floodwaters and a 2020 analysis of all 88 tropical storms and
hurricanes impacting the U.S. between 1995 and 2016 found that counties
with greater wetland coverage experienced significantly less property
damage than counties with little or no wetlands.\6\ \7\
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\6\ Environmental Protection Agency, Functions and Values of
Wetlands, EPA 843-F-01-002c (2001) (factsheet)
\7\ Sun, F., and R.T. Carson. 2020. Coastal wetlands reduce
property damage during tropical cyclones. Proceedings of the National
Academy of Sciences 117: 5719-5725
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Removing federal protections from vast swaths of waters across the
country will also have a disproportionate impact on Tribal communities,
Indigenous peoples, communities of color, and low-income communities.
Communities that depend on fishing for sustenance and for cultural
practices are particularly at risk from impaired water quality.
Tribes rely on the Clean Water Act to trigger consultation
requirements. The broad exclusion of important waters from federal
jurisdiction also undercuts states and Tribes' ability to protect
against cross-border pollution, including the destruction of upstream
wetlands and ephemeral streams that protect tribal waters. Without
federal resources to regulate waters within their borders, states and
Tribes may be impacted by pollution from upstream sources.
Additionally, for many states and Tribes, the health of the economy
and dependent communities is directly linked to the health of the
state's natural resources. Nationwide, the craft brewing industry,
notably dependent on clean water supplies, contributed $72.2 billion to
the U.S. economy in 2022 and more than 460,000 jobs.\8\ Smaller, non-
perennial streams threatened by the Sackett decision sustain prized
sport fisheries like trout and salmon. As such, much of the nation's
$867 billion outdoor recreation economy rely on these small streams and
wetlands as well.\9\ In some rural, mountain communities, river
recreation and related activities generate the largest share of the
local economy.
---------------------------------------------------------------------------
\8\ Brewers Association. https://www.brewersassociation.org/
statistics-and-data/economic-impact-data/
\9\ Outdoor Industry Association. https://outdoorindustry.org/
advocacy
---------------------------------------------------------------------------
From the Everglades to Puget Sound--and all the bogs, brooks, and
marshes in between--America's wetlands, rivers, estuaries, and streams
are critical for fish and wildlife as well. Although wetlands cover
only 6% of the Earth's land surface, 40% of all plant and animal
species live or breed in wetlands.\10\ More than a third of all
federally endangered or threatened species live only in wetlands and
half use wetlands at some point in their lives.\11\ 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. Similarly, small
and headwater streams are the capillaries that feed our larger
watersheds, supporting native fisheries, supplying drinking water, and
absorbing floodwaters. Coastal estuaries and mangrove forests serve as
the first line of defense against storm surges and provide important
habitat and shelter for fish and wildlife, from oysters to dolphins.
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\10\ ``Why Healthy Wetlands Are Vital to Protecting Endangered
Species: U.S. Fish & Wildlife Service.'' FWS.Gov, 26 Apr. 2023,
www.fws.gov/story/2023-04/why-healthy-wetlands-are-vital-protecting-
endangered-species.
\11\ ``Why Are Wetlands Important?'' EPA, Environmental Protection
Agency, www.epa.gov/wetlands/why-are-wetlands-important. Accessed 10
Sept. 2024.
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People Want Clean Water
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.\12\
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\12\ 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
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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
address the harm done by the Sackett decision and ensure federal
safeguards for all important waters. In the meantime, Congress must
support state and Tribal efforts to enact or strengthen protections for
the waters we all rely on.
Sincerely,
Jim Murphy,
Senior Director, Legal Advocacy, National Wildlife Federation.
Letter of October 17, 2023, to Hon. Thomas R. Carper, Chairman, and
Hon. Shelley Moore Capito, Ranking Member, Senate Committee on
Environment and Public Works, from farmers and agricultural
professionals, Submitted for the Record by Hon. Grace F. Napolitano
October 17, 2023.
Chairman Tom Carper,
Ranking Member Shelley Moore Capito,
Senate Committee on Environment and Public Works,
410 Dirksen Senate Office Building, Washington, DC 20510.
Via email
RE: Farmers support legislation to restore strong federal clean water
protections under the Clean Water Act
Dear Chairman Carper & Ranking Member Capito:
We are farmers and other agricultural professionals who support
strong protections under the Clean Water Act. We need strong federal
protections to safeguard the streams, wetlands, and other waterways
that help sustain our livelihoods and communities. In the wake of the
U.S. Supreme Court's decision in Sackett v. EPA, which drastically
reduced the number of waters protected by the Clean Water Act, we
support congressional action now to restore the full scope of the Act
as the bipartisan Congress that enacted the statute intended.
To feed America, we farmers need clean water. Our crops and
livestock are only as healthy as the water we use on our farms.
Headwater, seasonal, and rain-dependent streams supply water to larger
streams and rivers from which we draw water for irrigation and for our
livestock to drink. If our water is contaminated, our businesses suffer
because we cannot sell contaminated crops or rely on tainted livestock.
And just like families and communities across America, we need clean,
safe water for drinking, cooking, bathing, and numerous other things at
our homes.
Farmers also need healthy, intact wetlands. With more frequent
storms and a warming climate, wetlands help reduce pollution and
protect our homes and farming operations from flooding. If upstream
industries are allowed to degrade these critical water bodies, they put
farmers and our families and livelihoods at risk.
Federal clean water protections benefit farmers and ranchers; they
do not impose unreasonable or unworkable burdens on our industry. We
know that most day-to-day agricultural practices do not require Clean
Water Act permits because they are exempt.
That means we can farm our land, build or maintain stock ponds or
irrigation ditches, maintain drainage ditches, and build farm roads
without having to apply for a permit or worry about Clean Water Act
enforcement. In fact, EPA and the Army Corps of Engineers have
estimated that agricultural discharges account for less than one
percent of the wetland area and about two percent of the stream length
for which they have issued Clean Water Act permits. And in the rare
instances when we do need permits, fast-track permits with modest
requirements (nationwide permits or general permits) are available.
We disagree with the rhetoric advanced by the Farm Bureau, some
states, and industry, that strong clean water protections harm farmers.
The streams, wetlands, and other waters flowing through our farms are
no less worthy of protection because of the farming and ranching that
occurs there. Rather, we need the waters on our land to be protected to
support our farming and ranching. We therefore support congressional
action to restore strong federal clean water protections under the
Clean Water Act.
Sincerely,
Robert Whitescarver (lead),
Whiskey Creek Angus,
Churchville, Virginia.
John Ager,
Hickory Nut Gap Farm,
Fairview, North Carolina.
Greg Bowen,
American Chestnut Land Trust, Double Oak Farm,
Prince Frederick, Maryland.
Patrick Crowe,
Owner, Crowesgrow,
Matthews, North Carolina.
Peter Elmore,
Star Bright Farm, LLC,
White Hall, Maryland.
Vera Fabian,
Farmer/Owner, Ten Mother's Farm, LLC, Cedar Grove, North Carolina.
Queen Quet Marquetta L. Goodwine,
Chieftess of the Gullah/Geechee Nation, Gullah/Geechee Sea Island
Coalition,
St. Helena Island, South Carolina.
Ben Grimes,
Dawnbreaker Farms,
Hurdle Mills, North Carolina.
Liz Lamb,
Community Farming Program Manager, The 6th Branch,
Baltimore, Maryland.
Bernard Nagelvoort,
Associate Director, Lord Fairfax Soil and Water Conservation
District, Berryville, Virginia.
Hiram Ramirez,
Urban Gourmet Farms,
Charlotte, North Carolina.
Maria Russo,
Co-Founder, Sistermoon Farm, Shenandoah Junction, West Virginia.
Lindsey Shapiro,
Pasa Sustainable Agriculture, Harrisburg, Pennsylvania.
Sean Simpson,
Farmer/Owner, Terra Flora Market Garden, Norwood, North Carolina.
Jamie Swofford, Farmer,
Old North Farm,
Shelby, North Carolina.
Jennifer Stafford,
Farmer/Owner, J & J Family Farm, LLC, Clover, South Carolina.
Leo Tammi,
Shamoka Run Farm,
Mount Sidney, Virginia.
Kevin Tate,
Richard Foltz Farm, Stanley, Virginia.
Brent Wills,
Farmer, Wills Soil & Stream, Farm Advisor, Bramble Hollow Farm,
Montvale, Virginia.
Letter of September 10, 2024, to Hon. Sam Graves, Chairman, and Hon.
Rick Larsen, Ranking Member, Committee on Transportation and
Infrastructure, and Hon. David Rouzer, Chairman, and Hon. Grace F.
Napolitano, Ranking Member, Subcommittee on Water Resources and
Environment, from Protect Colorado Waters Coalition, Submitted for the
Record by Hon. Grace F. Napolitano
September 10, 2024.
The Honorable Sam Graves,
Chairman,
Committee on Transportation and Infrastructure, United States House of
Representatives, 1135 Longworth House Office Building, 2163
Washington, DC 20515.
The Honorable Rick Larsen,
Ranking Member,
Committee on Transportation and Infrastructure, United States House of
Representatives, Rayburn House Office Building, Washington, DC
20515.
The Honorable David Rouzer,
Chairman,
Subcommittee on Water Resources and Env., United States House of
Representatives, 2333 Rayburn House Office Building,
Washington, DC 20515.
The Honorable Grace Napolitano,
Ranking Member,
Subcommittee on Water Resources and Env., United States House of
Representatives, 1610 Longworth House Office Building,
Washington, DC 20515.
RE: Hearing on ``Waters of the United States Implementation Post-
Sackett Decision: Experiences and Perspectives''
Dear Chairman Graves, Ranking Member Larsen, Subcommittee Chairman
Rouzer, and Subcommittee Ranking Member Napolitano,
The Protect Colorado Waters Coalition consists of 20 environmental
and conservation organizations, representing more than 275,000
Coloradans, who came together to support the passage of legislation in
Colorado in response to the U.S. Supreme Court's Sackett v. EPA
decision. The coalition's goal is to restore the level of protections
that existed prior to Sackett, ensuring creation of a Colorado
permitting program that allows for responsible dredge and fill
activities to occur without irreparable harm to the state's wetlands
and streams.
In Colorado (and 47 other states), the U.S. Army Corps of Engineers
issues permits under Section 404 of the Clean Water Act to protect
waters of the United States (or ``WOTUS'') from the impacts of
discharges of dredged or fill material. The Supreme Court's Sackett
decision is the single largest reduction of what the Clean Water Act
covers as WOTUS since its inception, removing protections for countless
wetlands, streams, and rivers.
Healthy ecosystems are essential for providing clean drinking water
and the overall health of our communities. In addition, the economic
benefits provided by waters and wetlands (while difficult to quantify)
are undoubtedly in the millions, if not billions, of dollars annually.
In the absence of federal action from Congress to address the large gap
created by Sackett, states are now faced with the challenge of working
on a time consuming and controversial multi-year effort to create their
own permitting programs to protect waters no longer considered WOTUS to
ensure water supplies and wildlife habitat are not irreparably harmed.
Before the passage of the Clean Water Act, cities and industries
commonly dumped raw sewage into our nation's rivers. In addition to
impacts to streams and rivers, nearly half a million acres of wetlands
were lost annually. Since statehood in 1876, Colorado has lost
approximately 50% of its original wetlands due to activities such as
drainage, fill, or excavation \1\. Wetlands play a vital role in the
life of wildlife, support our water supplies, and create resilience to
extreme weather events such as floods, wildfires, and heat waves that
have greatly increased over the past few decades. According to the
Colorado Natural Heritage Program, as much as 75% of Colorado's fish
and wildlife depend on riparian habitats \2\, and according to the
Colorado Wildlife Council hunting and fishing contributes over $3.25B a
year to the state's economy, providing more than 25,000 full-time jobs
across the state.\3\ Wetlands also play an important role in
agriculture, reducing the risks and impacts of floods, droughts, and
wildfires, which can destroy valuable soil and property. With an annual
statewide economic contribution of $47B and nearly half of Colorado's
acreage being dedicated to farming, ranching, and other agricultural
activities, protection of wetlands is critical toward having a vibrant
agricultural economy and healthy wildlife population.\4\
---------------------------------------------------------------------------
\1\ https://cnhp.colostate.edu/cwic/work/restoration/
#: :text=Since%20Colorado%20became
%20a%20state,once%20provided%20across%20our%20state.
\2\ https://cnhp.colostate.edu/cwic/work/restoration/
#: :text=Since%20Colorado%20became
%20a%20state,quality%2C%20and%20water%20storage%20functions.
\3\ https://cowildlifecouncil.org/benefits/
#: :text=Hunters%20and%20anglers%20are%20an,
manufacturers%20to%20the%20tourism%20industry.
\4\ https://ag.colorado.gov/sites/ag/files/documents/
Colorado%20Agriculture%20Brochure.pdf
---------------------------------------------------------------------------
The state estimated that the Sackett decision resulted in a loss of
protection for the majority of Colorado's streams, about 80% of which
are ephemeral or intermittent.\5\ This loss of protection is not unique
to Colorado; others in the arid American Southwest are impacted even
more severely and face the same loss of protection to their water
supply from increased pollution. This is coupled with experiencing the
worst long-term drought conditions in 1,200 years across the region
\6\, especially impacting agriculture which uses about 80% of the
Colorado River's water to irrigate 15% of the nation's farmland.\7\
Additionally, Colorado is the headwater state with 8 major river basins
providing water supplies to 18 states and Mexico.
---------------------------------------------------------------------------
\5\ https://19january2021snapshot.epa.gov/sites/static/files/2014-
09/documents/colorado.pdf
\6\ https://www.nature.com/articles/s41558-022-01290-z
\7\ https://feedingourselvesthirsty.ceres.org/regional-analysis/
colorado-river#: :text=Agriculture
%20uses%20approximately%2080%25%20of,90%25%20of%20the%20winter%20vegetab
les.&text=
A%20recent%20study%20found%20that,irrigation%20for%20cattle%2Dfeed%20cro
ps.&text=
Agriculture%20is%20the%20largest%20water,in%20the%20Colorado%20River%20B
asin.
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In its amicus brief in the Sackett case, the State of Colorado
points out the perils of excluding ephemeral streams and intermittent
waters from the Clean Water Act. The brief is available here [https://
protect-us.mimecast.com/s/cQXXC2kgo5I8Qx
E9C1bbFD?domain=urldefense.com]. At page 16, the State provided this
clear warning:
Ephemeral and intermittent waters play a large collective role
in maintaining and defining the physical, chemical, and
biological integrity of perennial waters. Impairment or loss of
these systems through unregulated fill or pollution would have
considerable and long-lived negative consequences for
fisheries, ecosystem services, and economies dependent on them.
While Colorado acted swiftly in the wake of Sackett, becoming the
first state after the decision to pass legislation enabling a state
dredge and fill permitting program in May 2024, it has been a long,
controversial process that began nearly three years ago in response to
the 2020 Navigable Waters Protection Rule. Passing this legislation
took tremendous leadership from Governor Polis' Administration and the
sponsors of HB24-1379, specifically Speaker of the House Julie
McCluskie, Senator Dylan Roberts, and Representative Karen McCormick.
There were over 200 lobbyists registered on the bill (the large
majority of whom represented the regulated sectors of industry, water
users/suppliers, and agriculture) and the sponsors met with hundreds of
stakeholders over the course of dozens of meetings resulting in 40
amendments to the bill.
Throughout this process, Colorado has faced many challenges in
filling the gap left by the Sackett decision. The state lacks the staff
and funding available at the federal level for agencies to provide
robust review of the project's impact to fish, wildlife, and historic
cultural resources. The state does not yet have a functioning
mitigation program for unavoidable impacts associated with dredge and
fill activities. While the state is working to address these issues, it
will never have access to the level of funding that has historically
been available at the federal level to address these, and other needs.
Water is the lifeblood of America. However threats to wetlands and
our nation's water supply have increased significantly due to the
Sackett decision. Colorado is meeting this moment by creating its own
dredge and fill permitting program, but it's been a long controversial
process, and in the end the state does not have the financial support
to fill all gaps created by Sackett. While there are significant
challenges, we encourage other states to follow Colorado's lead because
of the critically important role of wetlands, ephemeral, and
intermittent streams in providing clean, safe, reliable water supplies.
Sincerely,
Josh Kuhn,
(Co-Chair of the Protect Colorado Waters Coalition),
Senior Water Campaign Manager, Conservation Colorado.
Kristine Oblock,
(Co-Chair of the Protect Colorado Waters Coalition),
Protect Our Waters Campaign Manager,
Clean Water for All Coalition.
Appendix
----------
Questions from Hon. David Rouzer to Emma Pokon, Commissioner, Alaska
Department of Environmental Conservation
Question 1. Every state has special considerations that they
consider when crafting water quality regulations. How might a high
level of National regulation of waters complicate your ability to meet
the specific needs of your state?
Answer. Congress recognized and anticipated that a one-size-fits-
all approach would not work well across the nation's diverse regions.
One mechanism for ensuring flexibility in the statutory framework is
the provision for states to implement the regulatory programs--
including section 402 wastewater discharge and section 404 dredge and
fill. Unfortunately, the value of states implementing these programs
has eroded greatly because of the granular level of federal agency
oversight, review, and second-guessing.
In a questionable allocation of our collective public resources,
EPA reviews the same State decisions multiple times. For example, after
DEC experts have developed and drafted a permit (based on EPA
guidance), EPA will review and comment on (and maybe object to) a
permit when it is released for public comment.\1\ EPA again then
reviews all permits issued by the State during a comprehensive periodic
review.
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\1\ In one recent experience, EPA formally objected to a permit
proposed by DEC on the basis that it did not comply with EPA's
nationally promulgated, granular effluent limit guidelines (ELGs). DEC
staff argued that the ELG was irrational as it required expensive
disposal of rainwater that met state water quality standards. After
formal objection and months of staff expert and attorney time, EPA
finally conceded that DEC's permit could be issued as drafted because
DEC pointed out that EPA had been referencing the wrong EPA-issued ELG
all along.
In another recent experience, EPA formally objected to a minor
modification of a permit because it did not comply with detailed
national ELGs. Rather than providing clarity to regulated parties up
front about what rules apply to their operation, EPA encouraged DEC to
instead exercise enforcement discretion to rationalize EPA's standard
in practice.
---------------------------------------------------------------------------
In a similar demonstration of distrust and duplication of effort,
EPA headquarters and regional staff meet quarterly with DEC's
compliance and enforcement program for updates on our responses to
specific, discrete noncompliance events. While enforcement discretion
is theoretically a place where implementing states should have
flexibility on how to best bring a facility into compliance and how to
allocate resources, EPA leaves DEC staff with the impression that they
must strictly adhere to a detailed matrix of EPA-approved responses.
Periodic state review framework engagements from EPA reinforces this by
scoring DEC staff against how closely they have adhered to that
predetermined matrix. Through their scoring criteria and review, EPA
demonstrates more interest in whether DEC adhered to what EPA pre-
approved than whether matters were effectively resolved. Staff time
dedicated to unproductive follow-ups with facilities that have already
come into compliance as well as the time in EPA meetings erode State
resources that could otherwise be spent on higher priority, substantive
regulatory activities.
Some State decisions cannot be implemented until EPA reviews and
approves our experts' analyses, causing significant delays. Regulations
adopted by Alaska DEC and sent to EPA for approval can wait for a
decade or more \2\--a timeline that is not workable for facilities
subject to our permitting requirements. For example, mixing zone
regulations submitted to EPA in 2006 were not approved until 2019.
---------------------------------------------------------------------------
\2\ In fairness, some regulations are reviewed and approved
promptly. For example, changes to Alaska's antidegradation regulations
delivered in March 2018 were approved by the end of July the same year,
in about four and half months; site specific criteria regulations
delivered in January 2017 were approved by the end of the next month.
---------------------------------------------------------------------------
Some State decisions are effectively overturned or reversed by EPA
overseers--either expressly or simply by failing to respond. For
example, Alaska DEC submitted mercury water quality standards to EPA in
2003, in 2004 EPA deferred approval--apparently indefinitely. Another
lengthy saga unfolded with respect to residue water quality standards:
DEC submitted regulations to EPA in June 2008, EPA disapproved the
regulations in January 2010; DEC then submitted a revised proposal in
May 2011, but EPA never responded to the revised package; DEC submitted
revised regulations rescinding the standard in 2021 and EPA approved
the rescission in 2023, closing out the 15-year ordeal--for now.
However, DEC must now implement the effective residue standard which
has generated at least one administrative appeal and confusion for
regulated entities, in part because the clarifying amendments were
ignored by EPA.
In other circumstances, EPA requires exhaustive monitoring and
documentation to even consider changing a previously designated use or
standard for a water body. In one example a legacy contaminated site
(that existed well-before state primacy or even statehood) resulted in
compromised water quality and effectively precluded some waterbody uses
that had been designated by default. To change the designated use,
which quite obviously had not been met for over a century, two years of
data needed to be collected before developing or submitting a
regulation package. Similarly, community wastewater facilities that
require site-specific criteria for waterbodies because of natural
conditions have undergone a years-long effort and expense to collect
data to satisfy EPA.
These elements of EPA oversight of a Clean Water Act primacy
program (which far exceed oversight of other federal programs that DEC
implements) frequently serve to limit, delay, and stymie State
regulatory actions.
Question 2. What are some of the challenges the state of Alaska has
encountered when trying to understand how the Agencies intend to
implement WOTUS post-Sackett?
Answer. EPA and the Corps have not yet published clear guidance to
help potential permittees or state agencies, including those like
Alaska DEC that are implementing Clean Water Act programs, understand
their approach. Well over a year later, it is unclear whether there has
even been guidance issued to line staff at the agencies. Instead,
district offices are apparently sending requests for formal approved
jurisdictional determinations to headquarters to decide on a case-by-
case basis. It seems the agencies themselves still do not fully
understand how they intend to implement WOTUS post-Sackett.
EPA did initially publish a ``conforming rule'' in August 2023 that
excised the term ``significant nexus.'' That limited adjustment to the
final WOTUS rule reflects an extraordinarily narrow take away from the
Court's holding. The conforming rule did not address the Court's
indistinguishable criteria or constitutional vagueness concerns.
Instead, the agencies have since claimed jurisdiction in a manner
directly contrary to the Court's requirement that a wetland be
``indistinguishable'' from an ``adjacent'' jurisdictional water. The
Corps' Alaska District Office asserted that most of the North Slope of
Alaska is subject to federal Clean Water Act jurisdiction. This is an
area the size of Utah where an upper layer of permafrost groundwater
melts seasonally, creating wetlands trapped above lower layers of
permafrost that remain frozen year-round. Perhaps permafrost wetlands
directly adjacent to a jurisdictional waterbody might be within the
scope of WOTUS. That claim becomes laughable when based on a theory of
jurisdictional contagion \3\ spreading across acres and miles of
tundra. A wetland that does not form because of any relationship with a
jurisdictional water and that is a substantial distance away is neither
``adjacent'' nor ``indistinguishable.'' By failing to acknowledge those
criteria however, the federal government maintains that it controls any
activity on those lands.
---------------------------------------------------------------------------
\3\ The Corps jurisdictional determinations also demonstrate that
its theory of jurisdictional contagion crosses not just unlimited
distance, but also distinct, separately classified, wetland types.
---------------------------------------------------------------------------
Beyond ignoring those specific jurisdictional criteria, there have
been clear indications that the agencies are pushing hard to return to
the ``everything is WOTUS'' posture. For example, the Corps appears to
be interpreting ``continuous surface connection,'' a clear reference to
``surface water,'' to include a wetland ecosystem, irrespective of
whether there is visible surface water present. In fact, in meeting
with the Alaska District Office, Corps staff referenced ``digging
holes'' on properties to determine the depth of ground water in
evaluating the presence or extent of a wetland. This approach is
confounding given the Supreme Court's clear statement that a vague
standard is problematic. How does an approach that requires digging
holes and applying ecological subject matter expertise resolve concerns
about a standard being vague?
The Corps has publicly committed to issuing jurisdictional
determinations free of charge as a public service. But, in practice,
that ``service'' appears to be limited. For example, the Alaska
District Office noted that they are choosing to prioritize JD requests
that are accompanied by a permit application (i.e., where the party has
already conceded federal jurisdiction). But the Corps may not be able
to get to a stand-alone JD, such as one requested in the context of a
property transfer.
Tracking the Corps standards for jurisdictional determinations has
been challenging because the agencies have not published clear
guidance, the JDs they have published contradict the Court's
guidelines, and the bandwidth and timelines for providing case-by-case
JDs is apparently limited.
Question 3. Due to the uncertainty of the current regulatory
structure at the Corps, some jurisdictional determinations are being
made by staff from Corps districts that do not usually cover the
geographic areas and hydrologic conditions of the applicants post-
Sackett.
Do you think it would be fair for someone from a Corps district on
the east coast, for instance, to be making WOTUS decisions in Alaska?
Answer. Officials from a different region may face challenges in
making sound jurisdictional determinations. Corps staff in distant
offices may lack familiarity with the applicable regional delineation
manuals, forecasting tools, and other materials.\4\ Staff outside of
Alaska may also be hampered by the lack of detail in the mapping and
imaging data. Moreover, there is significant risk that distant staff
will lack awareness of local information and context. Nor are those
staff able to conduct site visits as easily or quickly. Generally, a
lack of familiarity or experience with regionally unique ecosystems and
water regimes increases the risk of bad and unpredictable decisions.
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\4\ Notably, the Corps has published regionally specific wetland
delineation manuals, streamflow forecast tools, and other tools. These
tools reflect the Corps' position that jurisdictional determinations
are technically complex and that regionally specific circumstances
affect jurisdictional determinations.
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Distance also generates pragmatic hurdles to the communication with
and access for the public served by the agency staff. Public officials
should be accountable to the public they serve. And the public should
have opportunities to evaluate and understand government decision-
making. While distance does not render access and communication
impossible, it does generate hurdles and is a clear disadvantage to
remote offices processing applications.
Question 4. What is the difference between preliminary
jurisdictional determinations (PJDs) that the Corps has been pushing
project proponents towards, and approved jurisdictional determinations
(AJDs)? How do PJDs cause issues for permit applicants as opposed to
AJDs?
Answer. The Army Corps defines AJDs and PJDs in its regulations and
further in a 2016 Regulatory Guidance Letter (RGL).\5\ Several
important distinctions between these processes are evident on the face
of those published regulatory documents. The Corps markets PJDs as more
expeditious,\6\ but also concedes that PJDs both (1) are not appealable
\7\ and (2) effectively attach federal jurisdiction to aquatic
resources that ``may not be jurisdictional.'' \8\ By contrast, an AJD
process is lengthier and requires allowing agency staff access to your
property. But the AJD will provide a more precise wetlands delineation,
potentially limiting excess compensatory mitigation burdens, and is
appealable.
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\5\ 33 CFR 331.2; U.S. Army Corps of Engineers, Regulatory Guidance
Letter 16-01 Re. Jurisdictional Determinations (October 2016) available
at https://www.spn.usace.army.mil/Portals/68/docs/regulatory/resources/
RGL/RGL16-01.pdf.
\6\ RGL at 3.
\7\ 33 CFR 331.2 (``Preliminary JDs are advisory in nature and may
not be appealed.'')
\8\ A PJD can be used even where ``initial indications are that the
aquatic resources on a parcel may not be jurisdictional.'' Once you
have the PJD, however, the Corps ``will treat all aquatic resources
that would be affected in any way by the permitted activity on the
parcel as jurisdictional.'' RGL at 3.
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Taken together, the Corps has established a framework that
incentivizes projects to pursue a PJD. For an individual permittee, the
``expeditious'' feature of the PJD is attractive, as delays can cause
significant expense. The Corps' AJD process is less appealing as it is
more time-intensive and costly. Moreover, for the additional time and
cost, an applicant is unlikely to achieve a different result through
the AJD process given the federal agencies' demonstrated reluctance to
find that they do not have jurisdiction. While an AJD decision is
appealable, the cost of litigation is another high hurdle. Effectively,
the Corps is leveraging project costs and timelines to steer projects
toward a process that gives the Corps control (without accountability)
well beyond what Congress granted.
If the Corps and EPA took up the challenge to publish a clear and
intuitive WOTUS definition, projects could move forward comfortably
knowing whether a permit was required without waiting for the Corps to
extensively study water regimes. This would save time and resources for
both the agencies and projects while being responsive to the Court's
vagueness concerns.
Questions from Hon. David Rouzer to Courtney Briggs, Chairman, Waters
Advocacy Coalition, on behalf of the American Farm Bureau Federation
Question 1. What is the difference between preliminary
jurisdictional determinations (PJDs) that the Corps has been pushing
project proponents towards, and approved jurisdictional determinations
(AJDs)? How do PJDs cause issues for permit applicants as opposed to
AJDs?
Answer. A preliminary jurisdictional determination (PJD) is a non-
binding, advisory opinion from the U.S. Army Corps of Engineers that
there may be waters of the United States (WOTUS) on a given property
along with approximate locations of those waters and wetlands. By
accepting a PJD, landowners conceded, for the purposes of moving
forward with the permitting process, to treat the identified areas as
WOTUS without a formal, definitive evaluation from the Army Corps. This
means they cannot dispute the jurisdictional status of those areas
during the permitting process. PJDs can cause significant issues for
permit applicants because they push landowners to accept federal
jurisdiction over areas that may not actually qualify as WOTUS, simply
to avoid permitting delays.
In contrast, an approved jurisdictional determination (AJD) is an
official, legally binding determination from the Corps that specifies
the presence or absence of WOTUS on the property. An AJD involves a
thorough, on-site evaluation by the Corps to precisely delineate which
features are subject to federal jurisdiction. AJDs provide certainty
for landowners because they establish definitively which areas are
regulated, and which are not, and they are valid for five years.
Many landowners were falling into regulatory limbo waiting for the
Army Corps to provide AJDs, which forced many WAC members to
unnecessarily accept a PJD in order to get their projects moving in a
timely manner. Many industries run on strict timelines and cannot
afford to have their projects held hostage waiting for an AJD. This
means that landowners are forced to needlessly pay mitigation costs for
land that may not actually be a WOTUS.
Landowners are at a disadvantage if they later discover that the
PJD included areas that should not have been regulated, in contrast
AJDs provide a clear record that can be appealed administratively or
challenged in court.
Question 2. At a Subcommittee hearing in December 2023, Assistant
Secretary of the Army Michael Connor described the issuance of
jurisdictional determinations (JDs) and the lack of National guidance
that regulated communities could count on, as a ``chicken or the egg-
type situation.'' \1\ How has the Corps' internal lack of direction and
clarity affected regulated communities on the ground?
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\1\ Water Resources Development Acts: Status of Past Provisions and
Future Needs Hearing Before the Subcomm. on Water Resources and
Environ. of the H. Comm. on Transp. and Infrastructure, 118th Cong.,
(December 5, 2023) (Statement of Hon. Michael L. Connor, in response to
questioning by David Rouzer, Chairman, Subcomm. on Water Resources and
Environ. of the H. Comm. on Transp. and Infrastructure).
---------------------------------------------------------------------------
Answer. At this 2023 hearing, Assistant Secretary of the Army
Michael Conner explained that they intended to start issuing
jurisdictional determinations, and only later provide implementation
guidance--which led to the ``chicken or egg'' discussion. The Corps has
had over a year to figure this out and it is astonishing that the
public still does not have a comprehensive implementation guidance
document. The penalties for CWA compliance are $64,000/per day or jail
time--regulated entities need to know how this is being implemented
because these penalties can force small businesses to close their
doors. By leaving regulated entities in the dark, the federal agencies
are hoping that every permit seeker will be forced to ask the Corps for
permission to perform approved activities or worse use their own land.
The regulated public is being denied the constitutional rights of due
process and fair notice. It is also worth noting that Mr. Conner
testified before the Senate Environment and Public Works Committee
where he was specifically asked about WOTUS implementation guidance. In
his response, he denied its existence. Subsequently our coalition
requested this information through a Freedom of Information Act
request. Unsurprisingly, while the response that we received redacted
the SharePoint link to the implementation guidance, it did confirm the
existence of an implementation guidance document that has been sent
from Army Corps headquarters to Corps districts. This only exacerbates
our members' distrust of the federal government and highlights the
failure in transparency.
Question 3. Wetland restoration is a key tool in balancing
environmental protection and development. Can you provide any examples
where wetland restoration is being halted due to Section 404 permitting
delays?
Answer. Yes, wetland restoration is very important and provides
valuable environmental benefits. However, one of the greatest
regulatory barriers is WOTUS compliance because these projects often
require work in connected streams. For instance, Iowa's Department of
Agriculture has expressed serious frustration over the challenges that
the WOTUS permitting regime has caused in the conservation space. Iowa
Agriculture Secretary Mike Naig has been rather vocal about the fact
that this regulatory red tape is standing in the way of the creation of
new wetlands and preventing the projects from being completed due to
mitigation requirements. It is unfortunate that the positive
environmental and ecological impacts of these projects cannot be
realized because of the agencies' lack of clarity in WOTUS regulations.
Question 4. EPA Administrator Michael Regan has publicly committed
to being transparent, stating he wanted EPA to ``be a flagship example
of transparent, efficient, and effective government.'' \2\ You
mentioned that states and members of your coalition filed a FOIA
request with EPA and the Corps for training and guidelines documents
implementing Sackett.
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\2\ EPA, Administrator Michael Regan Message to EPA Employees--
Reaffirming Freedom of Information Act, (May 19, 2021), available at
https://www.epa.gov/aboutepa/administrator-michael-regan-message-epa-
employees-reaffirming-freedom-information-act-may.
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Do you think the EPA is living up to their promise? If not, what
can Congress do to ensure the EPA is being transparent about WOTUS?
Answer. The agencies' failure to provide a clear understanding of
the important terms that define the scope of WOTUS and blatant attempts
to conceal implementation guidance that the Corps is relying upon from
regulated parties completely contradicts that statement made by
Administrator Regan. As stated in my testimony, the agencies have
failed to be transparent. The best example of this is the redacted
Freedom of Information Act response that we received. The agencies are
actively trying to keep information hidden from the public, making it
all too easy for the regulated public to unknowingly break the law. It
defies logic as to why the agencies want to keep this information
behind closed doors. Congress needs to use their oversight power to
demand that the agencies publicly release this information and hold
these agencies accountable.
Question 5. How are ephemeral features being treated by the
Agencies post-Sackett? Has there been consistent direction on these
features? How do you think the implementation of WOTUS in ephemeral
features meshes with the ``relatively permanent'' direction?
Answer. In the Sackett decision, Justice Alito did not mince words
when it came to the federal government's jurisdiction over ephemeral
features when he said: ``The CWA's use of `waters' encompasses `only
those relatively permanent, standing or continuously flowing bodies of
water `forming geographic[al] features' that are described in ordinary
parlance as ``streams, oceans, rivers, and lakes.'' ' The Court also
said that as a matter of ``commonsense,'' the phrase ``waters of the
United States'' excludes ``channels containing merely intermittent or
ephemeral flow.'' Thus, in reading and interpreting the Supreme Court's
own decision, it is without question that ephemeral features should
not, and cannot as a matter of law, be regulated as a WOTUS. They are
simply not ``relatively permanent'' water features. However, the
agencies' clear refusal to adhere to the law, and abide by the high
court's decision has now opened the door for the regulation of
ephemeral features. Anecdotally, we are hearing that the agencies are
finding a way to establish jurisdiction ``by any means necessary.''
They are also using these non-relatively permanent features to stretch
their interpretation of ``continuous surface connection.''
Question 6. At the hearing, you spoke about agricultural exemptions
from WOTUS regulations, and their lack of effectiveness. Can you
explain what similar exemptions actually look like in practice? Are
they being applied as they should be?
Answer. Due to the nature of our industry, agriculture has been
provided with some exemptions--both regulatory and statutory. In
section 404 (F) of the CWA, the statute outlines a number of exemptions
associated with normal farming practices. Unfortunately, the exception
is drastically narrowed by the ``recapture'' provision found in section
404(f)(2). Given the subjective nature of the recapture provision,
farmers cannot confidently rely on the exemption for protection from
CWA enforcement actions. Likewise, the regulatory exemption for prior
converted cropland is very confusing and the correct interpretation of
this language has been hotly debated for many years. The agricultural
exemptions are only useful to farmers if they are clear and actually
provide legal protections.
Question 7. EPA and the Corps have issued a series of coordination
memos to the regulated communities on what ``connectivity'' could be
for determining a WOTUS. The challenge, however, is that there are no
clear limits on connectivity. You have previously noted that non-
relatively permanent waters have been used to assert jurisdiction over
wetlands post-Sackett. Have the Agencies provided any insight on how
far is too far for a non-relatively permanent water to determine
connectivity to a wetland?
Answer. No, the agencies have not provided any clear insights as to
what distances they will use to establish jurisdiction. They intend on
keeping the regulated community guessing as to what will fall under
their jurisdiction. This is why we want to see their implementation
guidance, so we can more clearly understand where the limits lie. By
keeping their rule ambiguously written and in the absence of public-
facing implementation guidance, the agencies can establish jurisdiction
however they please. The public is left to take on all the risk and
connect the dots with their livelihoods on the line. This simply is not
fair and is a blatant failure to provide government transparency.
Questions from Hon. David Rouzer to Vincent E. Messerly, President,
Stream and Wetlands Foundation, on behalf of the National Association
of Home Builders
Question 1. How do timelines for water permits differ at the state
and Federal level, and how does this affect those who rely on such
permits?
Answer. The Army Corps' data indicates that general permits
(Nationwide Permits or NWPs) for impacts to wetlands less than 0.5
acres are typically issued within 45 days. Individual 404 permits are
issued within 120 days. While the Corps has a non-binding policy that
states NWPs are to be issued in 45 days and individual 404 permits are
expected to be issued within 120 days, the actual experience of
permittees is quite different. For example, an analysis of CWA 404
permitting data cited by EPA and the Corps within their required
economic analyses for the revised WOTUS rule found the average
timeframe for a CWA 404 permit applicant to prepare, submit, and
receive a NWP was 313 days; while the timeframe for the more complex
individual permitting process was 788 days (2 years and 2 months). In
addition, the Corps has the discretion to pause the permitting process
when permit applications are sent back to the applicant for additional
information or for modifications to the amount of proposed impacts or
for changes in the mitigation proposal. The time that passes when the
clock is paused, is not accounted for in the Corps data for processing
timeframes, which can often be substantial. There can be substantial
misuse of the Corps utilizing the ``pause'' option when processing
permits that lead to substantial delays in the permitting process. Some
staff (not all) have been known to send applicants on wild goose chases
for additional information and stall the permitting process
unnecessarily.
In Ohio we have had a state permitting program for impacts to non-
federal waters (``isolated wetlands'') that has been in place since
early 2002 in response to the SCOTUS ruling on SWANCC vs. Army Corps of
Engineers. The Ohio permitting program has a tiered approach to
permitting with compulsory timelines that the state permitting
authority (Ohio EPA) must abide by. Ohio has three categories of
wetland, with categories being assigned based on the wetland's relative
functions and services, sensitivity to disturbance, rarity, and
potential to be adequately compensated for by wetland mitigation.
Wetlands assigned to category 1 are low quality wetlands; wetlands
assigned to category 2 are moderate quality, and wetlands assigned to
category 3 are high quality. Rapid and/or detailed functional
assessment tools that are approved by the agency are used to determine
wetland category. The EPA advocated for the development and use of
rapid assessment tools 25+ years ago. Those tools are to be used to
make permitting decisions and to evaluate compensatory mitigation
projects.
Ohio has three (3) levels of permits to authorize impacts to non-
WOTUS wetlands. OEPA has 15 days to notify that applicant if their
permit application is complete or not. If the permit application is
determined to be incomplete, the OEPA must timely notify the applicant
of the deficiency. If they fail to notify the applicant within the 15-
day review period, by default the application is deemed to be complete.
Below is a brief description of the three levels of permits used in
Ohio for non-WOTUS impacts.
Level 1 permits are for impacts to 0.5 acres or less of
category 1 and 2 wetlands. OEPA must approve or deny a level 1 permit
within 30-days of determining an application is complete. Failure of
the agency to timely approve or deny the permit results in an approved
permit by default.
Level 2 permits are for impacts greater than 0.5 acres of
category 1 wetland (with no upper limit) or to greater than 0.5 acres
of category 2 wetland up to 3.0 acres. OEPA must approve or deny a
level 2 permit within 90-days of determining an application is
complete. Failure of the agency to timely approve or deny the permit
results in an approved permit by default.
Level 3 permits are for impacts of greater than 3.0 acres
of category 2 wetlands and to category 3 wetlands. OEPA must approve or
deny a level 3 permit within 180-days of determining an application is
complete. Failure of the agency to timely approve or deny the permit
results in an approved permit by default.
Question 2. Wetland restoration is a key tool in balancing
environmental protection and development. Can you provide any examples
where wetland restoration is being halted due to Section 404 permitting
delays?
Answer. The Environmental Policy Innovation Center (EPIC) issued a
report in 2023 that clearly documents the Corps inability to timely
complete the review and approval of restoration projects for mitigation
banks. Additionally, the Corps recently acknowledged that they have not
promptly completed the review and approval of mitigation banks (e.g.
wetland restoration) as they rolled out a memo to the public. As
announced at the Ecological Restoration Business Association's
(``ERBA'') 8th Annual Policy Conference held on 16 September 2024,
Assistant Secretary of the Army Michael Connor signed a memorandum
titled, Improving U.S. Army Corps of Engineers Timeline Compliance with
the 2008 Compensatory Mitigation Rule (``Memorandum''), clarifying
certain aspects of the 2008 Mitigation Rule to improve the U.S. Army
Corps of Engineers' (``Corps'') timelines for review of proposed
mitigation banks and in-lieu fee (``ILF'') programs. The Memorandum is
issued in response to ERBA recommendations and a recent analysis of
Corps data indicating that the 2008 Mitigation Rule's review timeline
of no longer than 225 days is on average, not being met. ERBA sent a
letter to the Corps in April 2022 requesting a regulatory guidance
letter on the 2008 Mitigation Rule that includes several of the final
memo's recommendations. ERBA's April 2022 letter can be accessed
here.\\ The Memorandum provides the following clarifications:
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\\ https://img1.wsimg.com/blobby/go/41e32553-5f04-46fc-
9fa2-2486b37b0f46/downloads/ERBA
%20RGL%20Recommendations%20to%20Corps%20HQ%20(April%2020.pdf?ver=1726589
984959
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1. As chair of the Interagency Review Team (``IRT''), the district
engineer should strive to achieve consensus with IRT members within the
mitigation rule timeline; if consensus is not readily possible, the
district engineer will move the review process forward so as to meet
the 2008 Mitigation Rule timeline.
2. The district engineer should, to all extents practicable,
minimize the number of review iterations of complete draft instruments.
3. If a draft instrument is not complete, it should be returned
with the missing components identified.
4. If specific provision(s) of a complete draft instrument have
been identified as substantive area(s) of concern by IRT members, the
district engineer should work with the IRT members and sponsor to
address those specific concerns within the constraints of the
mitigation rule timeline. Extending the mitigation rule timeline should
be limited to the scenarios cited in 33 CFR Sec. 332.8(f).
5. The district engineer should comply with the 2008 Mitigation
Rule timeline for credit release decisions of 45 days.
6. Site visits may not be necessary for every credit release but
should be used when documentation provided by the sponsor does not
sufficiently inform a decision by the district engineer; when the
district engineer determines that a site visit is necessary, the
district engineer should immediately notify the sponsor.
7. Notification and scheduling of a site visit related to a credit
release request should occur within the mitigation rule timeline for
credit release requests of 45 days. The district engineer and sponsor's
availability should determine when the site visit occurs, which may be
outside the 45-day period.
8. IRT members should be invited to participate in the scheduled
site visit, but the availability of individual IRT member(s) should not
drive the scheduling of, nor delay the site visit.
9. Headquarters should develop nationwide templates for the
general elements that should be included in any mitigation bank or ILF
program instruments for use where there are no local developed
templates. In addition, Headquarters should seek input from federal,
Tribal, and state partners as well as the public and private sectors
(including mitigation bank sponsors and in-lieu fee program sponsors)
and/or NGO partners to develop national templates for specific types of
financial assurances.
10. The district engineer should develop, in collaboration with
the IRT, templates for site protection instruments, credit release
schedules, and service area determinations.
11. The district engineer should, in collaboration with the IRT,
develop and regularly update rapid assessment methods (``RAMs'') for
quantifying impact and offset actions, while using standard operating
procedures (``SOPs'') until such RAMs are available. As part of this
effort, the district engineer should issue a public notice on draft
rapid assessment procedures and SOPs to allow the regulated public and
other interested members of the public (including third-party
mitigation sponsors) to provide comments on these tools.
12. Headquarters should take steps to better document the causes
of delays in the mitigation rule timeline and credit release timeline,
including adapting existing databases and record-keeping (e.g., ORM
data fields). Additionally, the Corps should seek input from federal
(e.g., EPA or other federal IRT members), Tribal, and state partners as
well as the private sector and/or NGO partners to better identify the
sources of delay and potential solutions.
Question 3. Could you share some real-world examples where WOTUS
permitting significantly delayed, or even caused a permit applicant to
walk away from, a project?
Answer. As stated in Q1: permitting for a NWP can extend upward of
313 days, and an IP can run for over two years.
Below are three examples, where I'm able to share client names:
The proposed Ikea in the greater Cleveland area that was
withdrawn.
Sherwin Williams research and development facility was
substantially delayed (greater Cleveland area).
Cleveland Clinic facility in Avon, OH was substantially
delayed.
Question 4. Permitting delays and fees associated with the Section
404 permitting process can rack up quickly, often leading to costs
being passed on to the price of new developments, affecting
affordability. In your experience working with home builders to develop
projects of 10 to 25 homes, what do permitting delays and costs look
like, not only for the developers, but also for home buyers?
Answer. Regrettably, there are thousands of small projects that die
before prospective project proponents have even applied for a permit.
Most of these projects are contemplated by small businesses and
individuals that discover how time consuming and costly it is to pull a
404 permit. For example, when the agencies proposed the latest WOTUS
regulatory definition, their economic analyses included a study that
examined the average (i.e., median) permitting timeframes it took
landowners to prepare, submit, and receive from the Corps permit
authorizations for both NWPs and individual permits (IPs). Based upon
that study the median timeframe to obtain a streamlined NWP was 313
days when a more complex IP took 788 to obtain. Therefore, even a
simple NWP authorizing less than \1/2\ acre impact of wetland can
easily cost more than $200,000--engineers, surveyors, wetland
scientists, attorneys, mitigation costs, and land costs all contribute
to this amount.
Delays in the permitting process are an added layer of strain for
applicants. Time delays are costly--interest expense and additional
consultant and legal fees add up quickly. Often, we see applicants
simply agree to accept PJDs and permit terms and conditions that they
would otherwise not agree to, just to end the permitting process and to
stop the hemorrhaging of capital to get the project permitted. The cost
to develop the lots are subsequently passed on to the homebuyers. This
can easily amount to an additional cost of more than $10,000 per lot
that is passed along to the home buyer. As I've stated in my written
testimony, homebuyers are acutely sensitive to price changes. NAHB's
``Priced Out'' study demonstrates that for every $1,000 increase in a
new, median priced home--106,031 households are priced out of the
market.
Question 5. EPA and the Corps have issued a series of coordination
memos to the regulated communities on what ``connectivity'' could be
for determining a WOTUS. The challenge, however, is that there are no
clear limits on connectivity. In some of your testimony, you have
mentioned that non-relatively permanent waters have been used to assert
jurisdiction over wetlands post-Sackett. Have the Agencies provided any
insight on how far is too far for a non-relatively permanent water to
determine connectivity to a wetland?
Answer. The coordination memos that the EPA and Army Corps issued
do not provide the necessary, clear guidelines the regulated public
needs to confidently navigate the serious consequences of the CWA. The
memos have demonstrated to project proponents that 195 feet is
``relatively short'' to establish ``connectivity''; however, we've seen
an example where they tried to trace two miles of connectivity and that
was deemed too far. The public is operating under this system of vague
rules to try and determine if their property is under federal
jurisdiction.
In Sackett, the Supreme Court held that the CWA extends to ``only''
those wetlands that are ``as a practical matter indistinguishable from
waters of the United States.'' \1\ Furthermore\\, the Court stated that
a wetland cannot be considered part of water of the United States
``even if they are located nearby.''
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\1\ [Editor's note: A citation for footnote 1 was not provided.]
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If the Agencies abided by the Court's directive surrounding
distinguishability, the public could more confidently navigate the 404-
permitting process.