[Senate Hearing 118-266]
[From the U.S. Government Publishing Office]


                                                         S. Hrg. 118-266

                 EXAMINING THE IMPLICATIONS OF SACKETT
                V. U.S. ENVIRONMENTAL PROTECTION AGENC
                          WETLANDS AND STREAMS

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                                HEARING

                               BEFORE THE

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS

                          UNITED STATES SENATE

                    ONE HUNDRED EIGHTEENTH CONGRESS

                             FIRST SESSION

                               __________

                            OCTOBER 18, 2023

                               __________

  Printed for the use of the Committee on Environment and Public Works
  
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]  


        Available via the World Wide Web: http://www.govinfo.gov
        
                               __________

                   U.S. GOVERNMENT PUBLISHING OFFICE                    
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               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                    ONE HUNDRED EIGHTEENTH CONGRESS

                             FIRST SESSION

                  THOMAS R. CARPER, Delaware, Chairman
          SHELLEY MOORE CAPITO, West Virginia, Ranking Member

BENJAMIN L. CARDIN, Maryland         KEVIN CRAMER, North Dakota
BERNARD SANDERS, Vermont             CYNTHIA M. LUMMIS, Wyoming
SHELDON WHITEHOUSE, Rhode Island     MARKWAYNE MULLIN, Oklahoma
JEFF MERKLEY, Oregon                 PETE RICKETTS, Nebraska
EDWARD J. MARKEY, Massachusetts      JOHN BOOZMAN, Arkansas
DEBBIE STABENOW, Michigan            ROGER WICKER, Mississippi
MARK KELLY, Arizona                  DAN SULLIVAN, Alaska
ALEX PADILLA, California             LINDSEY O. GRAHAM, South Carolina
JOHN FETTERMAN, Pennsylvania

               Courtney Taylor, Democratic Staff Director
               Adam Tomlinson, Republican Staff Director
                            
                            C O N T E N T S

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                                                                   Page

                            OCTOBER 18, 2023
                           OPENING STATEMENTS

Carper, Hon. Thomas R., U.S. Senator from the State of Delaware..     1
Capito, Hon. Shelley Moore, U.S. Senator from the State of West 
  Virginia.......................................................     4

                               WITNESSES

Sullivan, Mazeika Patricio, Ph.D., Director, Baruch Institute of 
  Coastal Ecology and Forest Science, Professor, Department of 
  Forestry and Environmental Conservation, Clemson University....     7
    Prepared statement...........................................    10
    Responses to additional questions from Senator Carper........    24
Revels, Kourtney, Water Justice Organizer, Bayou City Waterkeeper    36
    Prepared statement...........................................    38
Bodine, Susan, Partner, Earth and Water Law......................    40
    Prepared statement...........................................    42

                          ADDITIONAL MATERIAL

Amicus brief of the Menominee Indian Tribe of Wisconsin and 17 
  Federally Recognized Indian Tribes about the case of Michael 
  and Chantell Sackett v. Environmental Protection Agency, et 
  al., June 17, 2022.............................................    63
Text of the U.S. Supreme Court's Sackett decision, No. 21-454. 
  Argued October 3, 2022--Decided May 25, 2023...................   115
Letter to Senators Carper and Capito from:
    the American Fisheries Society, October 24, 2023.............   197
    the American Fisheries Society, et al., October 18, 2023.....   202
    American Whitewater, Outdoor Alliance, and Outdoor Industry 
      Association, October 17, 2023..............................   205
    Anacostia Riverkeeper, et al., October 18, 2023..............   211
    Robert Whitescarver, et al., October 17, 2023................   213
    Water and Land Solutions, et al., October 17, 2023...........   215
    the National Wildlife Federation, October 18, 2023...........   218
Letter to Senator Carper from the National Association of Wetland 
  Managers, October 30, 2023.....................................   221
Fact sheet, National Association of Wetland Managers.............   224
Historical Appropriations: Comparison Among CWA Programs, 
  National Association of Wetland Managers.......................   225
Brief State Summaries of Impacts from Sackett, National 
  Association of Wetland Managers, October 2023..................   226
Written Statement of American Rivers, October 17, 2023...........   229
Statement of James M. McElfish, Jr., Senior Advisor, 
  Environmental Law Institute, October 18, 2023..................   259
Results of Clean Water Act survey on behalf of the Walton Family 
  Foundation, September 2022.....................................   264
Memorandum from the National Parks Conservation Association, Fall 
  2023...........................................................   266

 
EXAMINING THE IMPLICATIONS OF SACKETT V. U.S. ENVIRONMENTAL PROTECTION 
     AGENCY FOR CLEAN WATER ACT PROTECTIONS OF WETLANDS AND STREAMS

                              ----------                              


                      WEDNESDAY, OCTOBER 18, 2023

                                       U.S. Senate,
                 Committee on Environment and Public Works,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:03 a.m. in 
room 406, Dirksen Senate Office Building, Hon. Thomas R. Carper 
(Chairman of the Committee) presiding.
    Present: Senators Carper, Capito, Cardin, Merkley, Markey, 
Fetterman, Cramer, Lummis, Mullin, and Boozman.

          OPENING STATEMENT OF HON. THOMAS R. CARPER, 
            U.S. SENATOR FROM THE STATE OF DELAWARE

    Senator Carper. I am pleased to call this hearing to order.
    Two of our witnesses are actually here in person. We have 
another one who is joining us from the other side of the world, 
somewhere.
    Ms. Revels, we are anxious to hear from you.
    Susan, it is nice to see you.
    Mr. Sullivan, is your family Spanish? Where are you guys 
from?
    Mr. Sullivan. We are a nice mixture. It is a long story, 
but we speak Spanish and Lithuanian at home.
    Senator Carper. OK. We mostly stick with English.
    Mr. Sullivan. I will keep it in English for today.
    Senator Carper. All right.
    I am happy to call this hearing to order. We are here, as 
you know, to examine the implications of the Supreme Court's 
decision on Sackett v. Environmental Protection Agency for our 
Nation's wetlands and streams. Our hearing is timely, as today 
marks the 51st anniversary of the Clean Water Act.
    Susan has been here more than a few times. We know her; she 
is part of the extended family here.
    We especially welcome you today, and Mr. Sullivan and Ms. 
Revels, we are delighted that you could join us and for your 
contributions.
    While the Clean Water Act has been immensely successful at 
cleaning up our country's waters and slowing the loss of 
wetlands, the Sackett decision, in my view, has jeopardized 
nearly a half-century of progress under this bedrock 
environmental law. To understand the significance of this 
ruling, it is important for us to recall the state of our 
Nation's waterways in the early 1970s.
    Before the Clean Water Act, our Nation's waters were 
subject to indiscriminate pollution and destruction. Our waters 
were so polluted that the Cuyahoga River in Cleveland, Ohio, 
just north of where I went to college in Columbus, Ohio, the 
Cuyahoga River caught on fire. That was the year after I 
graduated.
    I think I was on my way to Southeast Asia for the Navy, and 
I remember reading about the Cuyahoga River catching on fire, 
and I thought, oh my God. That was a wakeup call, not just for 
me, but for a lot of people in our country and a lot of people 
who worked here in the House and the Senate.
    As a result, Congress got to work. Thanks to champions like 
Senator Ed Muskie, a Democrat from Maine, whom many of us knew, 
and Senator Howard Baker, a Republican from Tennessee, whom 
many of us knew and respected both of them enormously, Congress 
enacted the Clean Water Act in 1972. In doing so, they made a 
bipartisan commitment to protecting and restoring our Nation's 
waterways. The law very clearly states that its objective is to 
restore and maintain the chemical, the physical, and the 
biological integrity of our Nation's waters.
    Today, the science is clear: We simply cannot achieve that 
goal without protecting wetlands and streams. That is because 
the health of our waterways and the health of our wetlands and 
streams are inextricably linked.
    Unfortunately, the Supreme Court failed to recognize this 
link in May of this year when the conservative majority upended 
more than four decades of agency practice and precedent based 
on the original intent of the law.
    While we don't yet know the full extent of the damage from 
the Sackett decision, scientists estimate that more than half 
of our Nation's wetlands no longer have Clean Water Act 
protection. This loss of Federal protections could have 
disastrous consequences for our environment and our economy.
    Why are wetlands so important? In addition to sequestering 
carbon, wetlands act as a natural sponge that traps, filters, 
and slowly releases water. They help provide us with clean 
drinking water and protect our property and infrastructure. In 
fact, wetlands can store more than a million gallons of 
floodwater per acre.
    Let me just say that again. The first time I heard that, I 
didn't believe it, so let me say that again: Wetlands can store 
more than a million gallons of floodwater per acre. That is 
pretty amazing. They provide an estimated $1.2 trillion to $2.9 
trillion in prevented National Flood Insurance Program claims 
each year in our country.
    Why is that important? Because the National Flood Insurance 
Program is always running out of money, and the ability to 
actually save and preserve some money there in that fund is 
important.
    Removing protection for wetlands is especially shortsighted 
as climate change continues to fuel more extreme weather 
events, which we witness almost daily. In Delaware, we have 
seen firsthand how wetlands can mitigate flood risk. After 
Hurricane Sandy a few years ago, we restored degraded wetlands 
in communities that had long flooded during storms. And since 
the completion of that restoration project, many of those 
communities, thank God, no longer flood.
    Wetlands also provide irreplaceable habitat for many 
wildlife species, especially birds and fish. At a time when 
habitat loss is one of the factors driving a global crisis of 
biodiversity loss, we should think long and hard before 
eliminating protections for more than half of our wetlands.
    The Sackett decision increased the burden of wetlands 
management for States. Currently, 25 States do not have laws in 
lieu of the Clean Water Act to protect their wetlands. And even 
in States with wetlands protection laws, many regulators have 
said that they lack the capacity to issue permits for the 
wetlands and streams previously protected by Federal agencies.
    Furthermore, watersheds span multiple States, which means 
that the actions in one State can often implicate neighboring 
States, like Delaware and Maryland, Delaware and Pennsylvania, 
Delaware and New Jersey, and so forth. But even if States 
quickly expand their capacity to protect waters and wetlands, a 
patchwork of State laws would result in confusion and 
regulatory uncertainty.
    I talked with Susan a little bit about one of my goals, 
certainty and predictability, and hopefully, when all is said 
and done here, we can have more of that than we have right now. 
If States are left to conserve wetlands by themselves, the 
objective of the Clean Water Act would be unfulfilled.
    What is more, wetlands are only one part of the impact of 
the Sackett decision. This ruling also likely means that more 
than a million miles of streams no longer have protection under 
the Clean Water Act. These streams provide over $15 trillion 
per year in ecosystem services, including protecting and 
filtering water supplies.
    Streams that only flow for part of the year are especially 
vulnerable because of the Supreme Court's decision in Sackett. 
These types of streams play a key role in mitigating drought 
and protecting water supplies for communities in the western 
United States, particularly for tribal nations. Many of those 
communities are now rightfully concerned about their ability to 
protect these streams without Federal protection in place.
    Let me just close by saying that the Sackett decision, in 
our view, ignores science and turned back the clock on 
protections for our wetlands and streams. This decision puts 
our health, it puts our environment, and our economy, really, 
at risk.
    For more than 45 years, no less than eight consecutive 
Democrat and Republican administrations interpreted the Clean 
Water Act protections to be broader than they are following the 
Sackett decision. The need to make our Nation's waters safe for 
drinking, swimming, and fishing was obvious to Congress in the 
1970s. Today, I believe the Supreme Court got it wrong, with 
all due respect, in the Sackett decision. And I know that many 
of our colleagues agree with that.
    With that said, I also know there is a wide range of 
stakeholder perspectives on this topic. We look forward to 
hearing those views from our witnesses today.
    Before we do, let me turn to Ranking Member Senator Capito 
for her opening statement.
    Let me just say to our colleagues, we have all kinds of 
hearings going on, and votes and so forth this morning, so we 
will have people coming and going, as you know. Please bear 
with us.
    If you would, Senator Capito.

        OPENING STATEMENT OF HON. SHELLEY MOORE CAPITO, 
          U.S. SENATOR FROM THE STATE OF WEST VIRGINIA

    Senator Capito. Thank you, Mr. Chairman.
    I thank the witnesses for being here today. It is the 51st 
anniversary of the Clean Water Act as we speak.
    Thanks for holding this important hearing to discuss the 
scope and implications of the Biden administration's revised 
Waters of the U.S., or WOTUS, rule and its failure to fully 
implement the Supreme Court's recent Sackett versus EPA 
decision.
    I fear this inability or unwillingness of the Biden EPA and 
the U.S. Corps of Engineers to follow the directions laid down 
by the Court sets up only more regulatory uncertainty for 
stakeholders and the promise of even more litigation.
    On day one of this Administration, President Biden signed 
an Executive Order to once again reopen and expand the reach of 
Federal jurisdiction over waters of the United States. It was a 
solution in search of a problem, even after repeated requests 
that the EPA and the Corps could never identify specific 
examples of waters that were impaired as a result of the prior 
rule, and it took 2 years to finalize the new version. That is 
2 years without clarity, even as Congress moved forward with 
infrastructure investments that would be held up by WOTUS 
jurisdictional determinations.
    During that time, EPA Assistant Administrator for Water 
Radhika Fox repeatedly promised that the Biden administration's 
initial WOTUS proposal would balance elements of the prior two 
revisions, provide regulatory certainty, and perhaps, most 
importantly, be durable so that it could withstand legal 
scrutiny. The rule we ultimately got achieved none of those 
goals.
    During those 2 years of rulemaking, the Sackett case was 
making its way up to the Supreme Court with every indication 
that a ruling would significantly affect any rule the EPA or 
the Corps of Engineers finalized.
    The Administration ignored repeated admonitions from, 
certainly, me and others, as well as impacted property owners 
and stakeholders that the agency should wait until the Supreme 
Court acted to proceed so that they could follow the Court's 
directives. Ultimately, we were right, and they were wrong: The 
Biden administration wasted valuable time and resources 
prioritizing the promulgation of a rule that was unanimously 
rejected by the Supreme Court for its overreach.
    The EPA has now done the bare minimum to revise its initial 
proposal in response to the Supreme Court's decision so that it 
could rush a direct to final rulemaking that avoids 
transparency and public input. The only reason I can see to 
take this path is to keep WOTUS alive as a political wedge 
issue and environmental activists engaged. I fear this is 
setting us up for a repeat of WOTUS whiplash.
    To understand why, let's just go back a few months. The 
Supreme Court ruling in Sackett versus EPA handed down in May 
of this year represented a crucial victory for the cause of 
cooperative federalism enshrined in the Clean Water Act. The 
Court correctly limited the scope of Federal authority over 
wetlands consistent with the text of the Clean Water Act, thus 
reestablishing the delicate equilibrium between Federal and 
State governments that Congress intended when it comes to 
safeguarding our precious water resources.
    Supporters of expansive Federal regulation of WOTUS argue 
that the Court's decision leaves waters unprotected. The 
Chairman spoke to this. That is misleading. It is not only 
misleading, but it does a disservice to State and local 
governments who know their own local water issues best and have 
the most at stake in protecting them.
    It is an argument we have heard repeatedly over the past 
decade as the Federal Government embarked on five separate 
attempts to create a WOTUS Rule, ramping up or scaling back the 
reach of Federal jurisdiction and the types of projects 
requiring Federal permits from Washington's broken regulatory 
apparatus.
    The Supreme Court's decisive ruling in the Sackett case 
should have put an end to this back and forth; at least, that 
was our hope. Instead, on September the 8th, the agencies 
published the updated final WOTUS Rule amending the 2023 rule 
to allegedly conform to the Sackett decision. The agencies 
stated that the sole purpose of the rule was to conform to 
Sackett, and therefore used a procedural tactic that is 
supposed to apply only when an action allows no agency 
discretion and imposes no burdens on the regulated community. 
What that really results in is no public input or transparency 
into the rulemaking as it is announced in its final form.
    The Supreme Court's decision in Sackett did more than just 
abandon the old significant nexus standard for determining the 
scope of Federal waters. The majority established a new test 
pulled from the Clean Water Act that fully accounts for the 
law's use of the term navigable waters. The agencies entirely 
ignored this direction, and so on both process and substance 
have opened themselves up, I believe, to more legal challenges, 
creating more uncertainty for businesses, landowners, and 
project sponsors, and prolonged for all of those involved the 
likelihood that it is going to necessitate yet another WOTUS 
rule in the future.
    This new revision to WOTUS won't even be consistently 
applied across the country. The update does nothing to address 
other issues that prompted the rule to be stayed by District 
and Circuit Courts. In 27 States, and I have a little picture 
here, the purple are the 27 States, and as we sit here, it is 
your State, my State, and Senator Cramer's State, and those 27 
States where the 2023 rule was enjoined, the agencies will 
interpret WOTUS consistent with the pre-2015 regulatory regime 
and the Sackett decision. The agencies, in response to 
questioning from my staff, could not really tell us how this 
will be implemented or even if or when guidance would come for 
those States so that people know the rules of the road.
    For 23 States, and I believe that is your State, Mr. 
Chairman, and Washington, DC, where the 2023 rule has not been 
enjoined, the agencies will implement their revised rule. A 
patchwork of States with differing definitions of Federal 
jurisdiction is a regulatory nightmare for stakeholders, and 
you brought out a good point in your statement. A lot of these 
waters cross over from different State to State and now have 
different regimes.
    As it stands, without regulatory guidance from the 
agencies, no one has clarity on what either side of the 
bifurcated implementation scheme will mean for a given project 
in a given State. It is no wonder that everyone who wants to 
build something in this country, whether it is a road or a 
renewable energy project, a semiconductor facility, or a 
pipeline, everybody wants permitting reform. It is essential 
for policymakers and regulatory agencies to actually address 
these issues and ensure a transparent and inclusive 
decisionmaking when formulating these environmental 
regulations.
    Only through a fair and transparent approach can we develop 
effective policies that protect our natural resources, our 
precious air and water, and have sustainable growth. The 
Supreme Court correctly applied the Clean Water Act in the 
Sackett case. Had the Administration faithfully followed the 
Court's decision, then perhaps we would have avoided this 
ongoing litigation and the patchwork regulatory standard that 
we see now exists. Instead, it is likely going to be up to the 
courts again to constrain administrative overreach or to give 
us some clarity.
    Despite this summer's rulemaking, Sackett was a significant 
step forward in an effort to make permitting more efficient and 
in the effort to limit Federal agency authority to the 
parameters set by this Congress, or our Congress. Cooperative 
federalism enshrined in statute, when correctly applied, will 
protect our environment and our economy. The executive branch 
should follow these instructions from both Congress and the 
judiciary to move in that direction.
    I thank you, Mr. Chairman.
    Senator Carper. Thank you very much for that opening 
statement.
    Now, we are going to hear from our three witnesses, two in 
person, and one joining us remotely. First, Dr. Sullivan, who 
is a professor in the Department of Forestry and Environmental 
Conservation and the Director of the Baruch Institute for 
Coastal Ecology and Forest Science at Clemson University, the 
home of the Tigers.
    Dr. Sullivan received a bachelor's degree in anthropology 
and Native American studies from Dartmouth College, and earned 
his master's degree in biology and Ph.D. in natural resources 
from the University of Vermont. After earning his Ph.D., Dr. 
Sullivan was a post-doctoral research fellow at the University 
of Idaho. He also served as faculty in the School of 
Environmental and Natural Resources at Ohio State from 2008 to 
2022.
    I mentioned earlier the Cuyahoga River catching on fire the 
year after I got into the Navy in 1969. That was long before 
you showed up on campus there to be a part of the faculty.
    Dr. Sullivan has authored something like 81 peer reviewed 
publications on aquatic ecosystems and water body connectivity.
    Is that correct?
    Mr. Sullivan. That is correct.
    Senator Carper. That is a lot. I thought maybe that was a 
typo, but all right.
    Next, we are going to hear from Kourtney Revels. I just 
love that name. Isn't that a great name, Revels? She is the 
Water Justice Organizer for Bayou City Waterkeeper in Texas. 
Ms. Revels in a community organizer and education justice 
advocate who works tirelessly for equity in underserved 
communities. She has advocated for structural improvements to 
drainage systems, equitable distribution of resources, and 
disaster preparedness in northeast Houston.
    Last but not least, we are going to hear from Susan Bodine, 
who is a partner at Earth and Water Law.
    Somebody came up with a term called Carpertown, people who 
worked with me in the Navy or Treasurer, Congressman, Governor, 
Senator, whatever. We consider you part of EPW Town. It is 
great to have you back, and thank you for joining us. We don't 
always agree on everything, but we respect you hugely, as you 
know, and welcome you warmly back to this hearing room.
    Prior to enjoying E and W Law, Ms. Bodine served as the 
Assistant Administrator for the U.S. Environmental Protection 
Agency's Office of Enforcement and Compliance Assurance from 
2017 to 2021.
    From 2006 to 2009, you served as the Assistant 
Administrator for the Office of Solid Waste and Emergency 
Response, which is now called the Office of Land and Emergency 
Management.
    Ms. Bodine also served as chief counselor for this 
Committee from 2015 to 2017. She is a graduate of Princeton 
University and the University of Pennsylvania's School of Law.
    I don't know if Albert Einstein ever taught, I think we has 
a professor at either Dartmouth or Princeton, but I like to 
quote him every day: In adversity lies opportunity. There is 
some adversity here before us today, but I think we have some 
opportunity, as well. Shoutout to him.
    Welcome, and thank you to each of you for your willingness 
to testify before our Committee today. We are now pleased to 
hear the testimony of all three of you, starting with Dr. 
Sullivan.
    Dr. Sullivan, you are now recognized for 5 minutes. Please 
proceed.

STATEMENT OF MAZEIKA PATRICIO SULLIVAN, PH.D., DIRECTOR, BARUCH 
  INSTITUTE OF COASTAL ECOLOGY AND FOREST SCIENCE, PROFESSOR, 
DEPARTMENT OF FORESTRY AND ENVIRONMENTAL CONSERVATION, CLEMSON 
                           UNIVERSITY

    Mr. Sullivan. Thank you very much.
    Good morning, Chairman Carper, Ranking Member Capito, and 
members of the Committee. I appreciate the opportunity to stand 
before you today and discuss the implications of this case for 
our Nation.
    As Senator Carper has said, I have authored 81 peer 
reviewed publications on aquatic ecosystems and water body 
connectivity, so I spent a lot of my career focused on these 
questions. In my capacity as a member of the American Fisheries 
Society and the Society for Freshwater Science, I contributed 
to an amicus brief to the U.S. Supreme Court in the Sackett 
versus Environmental Protection Agency. I have included the 
brief, as well as some key publications, in my written 
testimony.
    As described by Justice Alito, Sackett concerns a nagging 
question about the outer reaches of the Clean Water Act, the 
principal Federal law regulating water pollution in the United 
States. These outer reaches, as he terms them, in fact, refer 
to our Nation's most vulnerable waters.
    Sackett disregards the established science around these 
smaller and often nonperennial streams and wetlands, which 
shows that they maintain hydrological, chemical, and biological 
functions that are essential in sustaining human well being, 
ecological health, and the economy. For example, they are 
critically important for fisheries, flood control, drought 
mitigation, carbon storage, and biodiversity, including many 
endangered species, as well as recreational and commercially 
valuable fishes like salmon and herring.
    I have a few slides here. We will be on the second one. 
Yes, so the decision is catastrophic for water protection 
across the United States. The U.S. Supreme Court declared that 
a wetland must have a continuous surface connection with a 
water of the United States to be afforded Federal Clean Water 
Act protection. By requiring adjoinment, Sackett sets a far 
more limited standard for jurisdiction than any prior agency 
rule. Please refer to the figure in the slide, which shows how 
the conforming rule strips protections from our Nation's 
waters.
    This ruling removes the majority of U.S. wetlands from 
Federal protection. For example, nationwide, approximately 16.3 
million acres of wetlands, or roughly the size of West 
Virginia, are non-floodplain wetlands, meaning they are found 
outside of non-adjacent to streams or rivers, such as prairie 
potholes, and will not be federally protected. Next slide.
    We must recognize that this historic loss of protections is 
occurring at a time when the United States has already lost 
vast amounts of wetlands. Twenty-two States have experienced a 
loss of wetland area greater than 50 percent. Many midwestern 
States have lost greater than 80 percent. Likewise, 5 million 
acres of wetlands existed at the time of California's statehood 
in 1850. Today, only 9 percent of those wetlands remain.
    While the Court's opinion is focused on wetlands, it also 
jeopardizes headwater streams. Non-permanent, ephemeral, and 
intermittent streams represent 59 percent of all streams of the 
conterminous United States, and greater than 81 percent of 
streams in the arid and semi-arid Southwest. Across the Nation, 
at least 4.8 million miles of streams are ephemeral and are 
left without protection. Next slide.
    Conservative estimates suggest that wetlands outside of 
floodplains, such as prairie potholes, provide $673 billion 
U.S.D. per year, whereas headwater streams, small streams at 
the upper ends of watersheds, contribute $15.7 trillion U.S.D. 
per year to the U.S. economy via the ecosystem services listed 
on the slide. If you can't see them, they are talking about 
water purification, recreation, climate regulation, and others.
    Loss of protections for these waters creates a direct risk 
to human life and well being from flooding and drought, with 
marginalized communities most at risk. Wetlands are key players 
in reducing the number and severity of floods. On the flipside, 
wetlands protect against drought by storing water during times 
of high flows and releasing it slowly over time, returning it 
to the water table during times of scarcity. Next slide.
    Sackett's inadequate protection of water resources on 
tribal lands leaves vast swaths of reservation streams and 
wetlands unprotected and does not uphold the U.S. trust 
responsibility to the Tribes. Hunting, gathering, and fishing 
from wetlands and headwater streams, for example, are critical 
for subsistence based economies of rural Alaskan Native 
peoples.
    In this slide, you can see that ephemeral streams represent 
90, 39, and 73 percent of reservation stream length on the Fort 
Apache Reservation in New Mexico and Arizona, Coeur d'Alene 
Reservation in Idaho, and Menominee Reservation in Wisconsin, 
respectively.
    The Court describes non-navigable wetlands and streams as 
outer reaches, but this is akin to minimizing the importance of 
the network of capillaries and small veins to the functioning 
of our circulatory systems and overall condition. The Court's 
decision has significantly weakened water protection and 
gambled with environmental, human, and economic health at a 
time when protections should be strengthened. Climate change 
will only exacerbate this situation.
    In closing, I remember meeting Wilma Mankiller when she was 
the principal Chief of the Cherokee Nation. She said that in 
Iroquois society, leaders are encouraged to remember seven 
generations in the past and consider seven generations in the 
future when making decisions that affect the people. Not only 
do I stand before you today as a scientist, but also as a 
father of four and a citizen. Water is a precious and finite 
resource. The information I have provided you today is based on 
science. It is not hyperbole. I urge you to value this science, 
consider the seven generations to come, and remedy this 
situation.
    Thank you.
    [The prepared statement of Mr. Sullivan follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Senator Carper. Dr. Sullivan, thank you very much for your 
testimony.
    We are going to ask Ms. Revels to join us remotely.
    Ms. Revels, you are recognized for 5 minutes. Once you 
complete your testimony, we will come back to Susan Bodine. Ms. 
Revels, please proceed.

 STATEMENT OF KOURTNEY REVELS, WATER JUSTICE ORGANIZER, BAYOU 
                        CITY WATERKEEPER

    Ms. Revels. Thank you, Chairman Carper and Ranking Member 
Capito, for hosting this hearing to examine the implications of 
Sackett v. EPA for Clean Water Act's protections of wetlands 
and streams.
    My name is Kourtney Revels, Water Justice Organizer for 
Bayou City Waterkeeper and a lifelong resident of Houston, 
Texas. Bayou City Waterkeeper is a Houston based organization 
that serves the lower Galveston Bay watershed with a focus on 
improving water quality, wetlands protection, and flood 
mitigation across our region while emphasizing climate 
resilience and environmental justice. I am also a member of the 
Northeast Action Collective, which organizes for drainage 
equity in northeast Houston.
    My role within Bayou City Waterkeeper is to organize 
community members and shed light on experiences in communities 
most vulnerable to impacts on water pollution, system failures, 
underinvestment, and wetland development.
    Water justice is a personal issue for me, because in my 
community in northeast Houston, I have experienced recurring 
flooding in the ditches near my home and my daughter's school. 
We are the communities on the frontlines of climate related 
changes and flooding. I am determined to fight for my community 
and the safety of my daughter. My journey in advocacy has been 
deeply rooted in the quest for flood mitigation, infrastructure 
enhancement, increasing community engagement, and bolstering 
community resilience.
    Houston is emblematic of the struggle against climate 
change induced storm flooding. I have witnessed firsthand the 
devastating impact of these issues. The greater Houston region 
has repeatedly experienced floods and storm surges, including 
2017's Hurricane Harvey that caused over 100 deaths and over 
$125 billion in damage.
    In Houston, our watershed is home to some of the most 
unique and diverse wetlands in the world. These wetlands and 
others provide real services to our communities that often go 
unnoticed, like reduced costs to water treatment plants for 
purifying and filtering our drinking water, as well as soaking 
in and storing flood waters during heavy rainstorms. With 
climate change heightening the pressure on our infrastructure, 
the functions provided by healthy, natural water systems are 
even more critical.
    Many of the wetlands in our region do not directly border 
or have continuous surface connections to another 
jurisdictional water, so they no longer qualify as Waters of 
the United States or for the Clean Water Act's protections, yet 
they have real connections to the way our ecosystems function, 
and refusing to protect them has consequences to our 
environment and communities.
    The impact of less protective Federal regulations will 
likely hit frontline communities like mine the hardest. When we 
pave over wetlands, floodwaters that would normally be stored 
in soils flow quickly to communities downstream. This strains 
our infrastructure and exacerbates flooding that 
disproportionately impacts Black and lower income 
neighborhoods. The water is often polluted, not only from 
industrial waste, but also from sewer overflows during rain 
events, spewing untreated sewage into our neighborhoods, homes, 
and waterways.
    This decision also emphasizes the need for local and 
regional policy solutions and investments that can preserve 
large ecosystems as a means for flood and climate protection. 
As our region grapples with how to address the intense storms 
and rising sea levels, it becomes more important to protect our 
remaining wetlands at the highest risk of loss due to 
development and other reasons.
    Aging systems, ill equipped to cope with the surge in 
demand and impact of extreme weather events, puts immense 
strain on our communities, and these burdens disproportionately 
fall on marginalized communities, who lack the resources and 
political representation to address these issues.
    Today, I lift up the urgency of protecting wetlands, not 
just as an issue of water conservation or water protection, but 
also as flood equity and ultimately as environmental justice. 
Together, with local organizations and communities, I am 
committed to working toward addressing these water justice 
crises, fostering resilience, and championing equity.
    Our collective efforts are integral to forging a more 
sustainable and just future where no one is left behind in the 
face of water related challenges. We need everyone locally, in 
the States, and here in DC to understand that when we lose 
Clean Water Act protections, we are facing a water justice 
crisis.
    Thank you guys for the opportunity to testify today.
    [The prepared statement of Ms. Revels follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Senator Carper. All right. We guys are happy.
    [Laughter.]
    Ms. Revels. I mean Senators. I am so sorry. Thank you.
    Senator Carper. We are just regular guys and gals. Welcome. 
Thanks for that testimony, especially for your close.
    Now, we are going to recognize not a stranger in this room, 
but one that we have worked with and admired for a long time, 
though we don't always agree, but we have great respect for 
her, Susan Bodine.
    Susan, you are recognized, if you will, for 5 minutes. 
Please proceed.

                  STATEMENT OF SUSAN BODINE, 
                  PARTNER, EARTH AND WATER LAW

    Ms. Bodine. Thank you, Chairman Carper, Ranking Member 
Capito, and members of the Committee for inviting me to testify 
today on the Sackett decision.
    I don't disagree that all water is connected. My children 
learned about the water cycle in the fourth grade, but the 
Committee needs to understand that the connectivity report that 
Dr. Sullivan talked about and worked on was written to support 
the notion of significant nexus. These connections create a 
significant nexus to a navigable water. It is important to 
recognize that all nine Supreme Court Justices held that 
significant nexus is not a valid basis for establishing Clean 
Water Act jurisdiction.
    Further, the background of the 1972 amendments to the Clean 
Water Act make it clear that the relatively permanent waters 
test that was articulated in Rapanos, picked up on Sackett, is 
consistent with the text and legislative history of the Act.
    As I discussed in my written testimony and in the article 
attached to that testimony, Senator Muskie's staff, and you 
recognized, Senator Carper, that he was one of the lead 
authors, they have talked about what they were trying to do in 
1972. He said, at the time of the negotiations, the House and 
Senate staff believed that the scope of Federal jurisdiction 
that they authorized in the 1972 amendments were more 
constrained than the scope identified by the Supreme Court, in 
both the SWANCC decision on isolated waters and the Rapanos 
decision. So the Sackett case hasn't removed any Clean Water 
Act restrictions. It reaffirmed its original scope.
    Despite Sackett, as I discussed in my written testimony, I 
am actually concerned about how the opinion will be 
implemented. In particular, I am worried about the position 
that has been taken in the preamble to the January 2023 rule 
that a continuous surface connection makes a wetland adjacent, 
and that it is just a physical connection, not a water 
connection, just a physical connection.
    All features on the landscape are connected, just like all 
water is connected. And so under this interpretation, you could 
argue that all wetlands are connected, and that therefore, all 
wetlands are considered adjacent.
    I am also worried about the test for relatively permanent 
waters that is articulated not in the regs, but in the preamble 
in January 2023, again, that you can say something is 
relatively permanent just if you see a bed and bank, just if 
you see wet leaves. That is the same test that had been used in 
the past to identify a stream, even a stream or a channel that 
only has water when it rains. Again, the way they have 
interpreted Sackett is to retain and perhaps go back to the 
same issues that gave rise to these Supreme Court cases.
    I also disagree that Sackett means we have lost a lot of 
authority. For example, referring to Ms. Revels' testimony, I 
worked on Corps of Engineers projects for Houston when I was in 
the Committee and in the House. I worked on the combined sewer 
overflow and sanitary sewer overflow, the sewer overflow 
consent decree for the city of Houston, when I was at EPA. 
Neither of those authorities are affected at all by Sackett. 
Both of those authorities can actually incorporate wetlands 
into their projects to achieve their goals.
    Again, waterways are still protected based on the authority 
under point source. So if you have a ditch, if you have a 
channel, even if it is an ephemeral channel, that can be a 
point source. You can't dump pollutants into that channel. The 
channel itself isn't a Water of the United States, but it is a 
point source that, if it leads to a Water of the United States, 
results in a discharge into a Water of the United States, it is 
still regulated. You still need a permit.
    Even if wetlands don't directly abut, although leaving 
aside the fact that the agencies think it is a physical 
connection only, but even if you don't directly abut, many 
wetlands are still going to be protected by other programs. The 
Fish and Wildlife Service has grants under the North American 
Wetlands Conservation Act. The Department of Agriculture 
protects wetlands through its conservation programs.
    There are a lot of non-Federal partners. Ducks Unlimited, 
Nature Conservancy, many, many local watershed organizations, 
all working cooperatively with the private sector, with 
landowners, to conserve wetlands. States, too, have adopted 
their own definitions of Waters of the State, and about 26 of 
them have their own separate State programs to protect those 
waters.
    The other 24 do rely on their 401 authority, which means 
that they can attach conditions to any kind of Federal spending 
or project if there is a discharge to something that is a 
WOTUS, but the way that has been interpreted in a recent rule 
by the Biden administration, you can then attach conditions 
whether or not. If all you need is one discharge, and then you 
can attach kind of whatever conditions you want. That authority 
is still there, too.
    I do also want to emphasize that back in 1972, the staff 
was worried and the Senators were worried about federalism and 
constitutional limitations on their authority. As you look at 
this issue, I just ask you to keep that in mind.
    Thank you.
    [The prepared statement of Ms. Bodine follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Senator Carper. Thank you for that testimony.
    In fact, thanks to all of you for your testimonies this 
morning.
    I have a couple of prepared questions I am going to ask, 
but I just want to start off and say, Dr. Sullivan, do you want 
to respond or comment on anything that Ms. Bodine has said, 
please?
    Mr. Sullivan. Yes, I do, and I appreciate the comments. I 
think that a few points.
    One is, I think we need to ask the right questions. I am 
here as a scientist. And the first, the intent of the Clean 
Water Act, I think we can all agree, is to provide clean water. 
And it is expansive by definition. It wasn't called the Clean 
Large Rivers Act or the Clean Large Lakes Act. By the name 
alone, I think the intent is clear in terms of its 
understanding of protecting waters broadly.
    I think that is an important point as we think about what 
the science tells us around protecting clean water. The 
connectivity report that Ms. Bodine referred to, the intent of 
that was to provide an exhaustive and comprehensive 
understanding of the literature around how upstream and upslope 
waters can relate or affect downstream and downslope waters.
    It was not within the context explicitly; in fact, we were 
directed to focus on the science and not the policy. While it 
has implications for the significant nexus, it has equal 
implications for where we are today. That information is 
incredibly valuable.
    What we have seen since that time in the science in the 
decades since that time is increased evidence that changes, 
alterations of upstream and upslope waters have significant 
effects on downstream and downslope waters. I think that report 
is meant to buttress the science and really show those 
important connectivity, how physical, chemical, biological 
connectivity is critical in maintaining clean drinking water, 
for example, for downstream waters. So I think those are really 
important points.
    In terms of the programs, and perhaps we will talk about 
that later, I think a lot of the programs that Ms. Bodine 
mentioned, I agree those are excellent programs, but they are 
not a comprehensive national legislation that sets the bar for 
protection. Many of those are actually programs that are 
restoring, not conserving, and we know, from decades of 
research, that restoration, although very important, does not 
equal conservation.
    I think we all know that from our own bodies. I injured my 
wrist a few years ago and had to have surgery. It works, right, 
it is restored, but it is not the same as the original 
condition. So a lot of those programs are actually meant toward 
restoring.
    They are also patchy in their distribution. For example, 
the Clean Water Act is based on individual organisms and life 
history strategies. So species that have very small ranges, 
that is where that is limited to. It is not a comprehensive 
national legislation, and I think that is what we need to 
protect the science.
    Senator Carper. All right, thanks very much for that.
    Let me yield to Senator Capito.
    Senator Capito. Thank you. Thank you both, all three of 
you, for being here.
    So, the Biden administration has come in and revised the 
rule as a reaction to the Sackett opinion. The Supreme Court 
found, unanimously, that, for different reasons, the mere 
presence of water does not allow for Federal jurisdictions. 
They have removed the phrase ``significant nexus'' from the 
rule and kind of called it a day.
    Ms. Bodine, would you describe the jurisprudence here, and 
am I right that mere deletions cannot satisfy the requirements 
that were laid out by our Supreme Court?
    Ms. Bodine. Thank you, Senator Capito.
    I am concerned, and I agree with you, and the reason is 
that when the Biden administration wrote their rule in January, 
knowing full well that the Sackett decision was pending, they 
hedged their bets, and so they wrote both on significant nexus 
and relatively permanent waters, but they didn't put the 
definitions of what they meant, going to Senator Carper's 
clarity point. They did not put it in rule language. I think 
they attempted to isolate it from judicial review by putting 
all of that in preamble language.
    When they issued their conforming rule on September 7th, 
they excised ``significant nexus'' out of the rule language, 
but they left in all of their preamble language about what 
related to the Rapanos test. What is a relatively permanent 
connection, what does it mean to be relatively permanent, what 
is a continuous surface connection, all that is still there. 
They reaffirmed in a memo that they wrote on September 27th 
that that is controlling. So that January 23 language from the 
preamble is controlling the jurisdictional determinations in 
the field.
    Senator Capito. I would say, to simplify there, what I am 
hearing is that we are going to be back at court, and this is 
going to be back up to the Supreme Court, the way the 
Administration has rewritten this rule.
    Would that be a safe statement?
    Ms. Bodine. Yes, I agree with you.
    Senator Capito. OK.
    Let me ask you this. I talked about the rulemaking process. 
They kind of skirted a little bit the rules there, in terms of 
public input, which is kind of ironic, because in this 
Committee, all we hear about is community input and how we need 
to make sure we are listening to communities, which I believe 
is extremely valuable, and we should be doing that. That is a 
big emphasis, but they didn't go through this. How is that 
going to hold up as we move forward legally here?
    Ms. Bodine. I was very surprised they took that approach. 
There is an exemption in the Administrative Procedure Act, 
saying that if comment is unnecessary, then you don't need to 
go through notice and comment, but the only time comment is 
unnecessary is if Congress took away all the discretion from 
the agencies. If there is any discretion, then you have to take 
notice and comment, and there certainly is.
    There are certainly questions that remain open based on the 
Sackett decision. In fact, there is a whole discussion about 
interstate waters in the Sackett decision that they didn't 
address at all, and then, of course, there is this whole issue 
of how they are going to implement it, which is in the preamble 
language.
    Senator Capito. I think, also, to get to it, we have, as 
much as we might have a different approach to what we are 
trying to get here, one of the conforming themes, I think, that 
the Chairman and I have, and all of us have, is some kind of 
consistency. So if we look at this map, we have the purple and 
the green. The purple is conforming to the 2015 rule; the green 
is to the new rule.
    How in the world are farmers, or construction, anything, 
going to go forward, trying to figure this maze of regulatory 
mish mash? To me, that makes it even more difficult than it 
already is.
    Ms. Bodine. I agree with you completely. The reason is 
that, the way they wrote the rule, again, not by creating 
definitions that could be challenged in court, but by 
essentially leaving everything to a case by case determination. 
So, those case by case determinations about how they are going 
to implement stuff on the ground, that is going to lead to 
inconsistency, and we have seen that before. There is a really 
interesting 2004 GAO report on how different Corps districts 
around the country took completely different interpretations, 
and we are going to be back to that.
    Senator Capito. To simplify it, in regular terms, the whole 
Sackett case was about a couple trying to build a house near a 
lake. It is very granular. We are talking kind of big, bold 
definitions and how it is going to implement and everything, 
but basically, it is about homeowners, construction folks, 
farmers. It is the basic parts of our different States that are 
most equally affected.
    I think I am out of time. I will turn it back to you, Mr. 
Chair.
    Senator Carper. Thanks for those questions.
    Next, Senator Cramer, please. Thank you.
    Senator Cramer. Thank you, Mr. Chairman.
    Thanks, Senator Capito, and to all of our witnesses.
    I do think you are right. We are sort of arguing two things 
here. You are arguing that the science and the effects; you are 
arguing the law and the Constitution. For those of us that want 
to go back and forward seven generations, my sixth-great 
grandfather gave his life at Bunker Hill for the cause of 
liberty. And I believe if we are going to use broad 
definitions, that would be for the cause of federalism, not an 
the insignificant issue that we should ignore for the science.
    I want to ask you, Ms. Bodine, earlier this year, in this 
Committee, Lieutenant General Spellmon, the head of the Corps 
of Engineers, testified. I gasped when he said it. He said it 
rather casually in the context of work force. He said that the 
Corps of Engineers considers about 80,000 Federal issues a 
year, 80,000 Federal decisions per year.
    Do you believe that if there are 80,000 regulatory actions 
by the Corps of Engineers that the clarification, the 
simplification of Sackett, should reduce that workload for the 
Corps of Engineers, and perhaps there is some efficiency that 
we could actually gain from this?
    Ms. Bodine. Unfortunately, I don't think we are ever going 
to see that, because the way they set it up, it is going to be 
case by case determinations instead of right definitions.
    Senator Cramer. Thank you. That is my concern. How much 
simpler could they make it? How much more prescriptive could 
they have been? I suppose you could say, we could be more 
prescriptive if we changed the Clean Water Act to the Navigable 
Waters Act, but we don't call the Endangered Species Act the 
Every Species Act. Titles are one thing; definitions are 
another thing.
    I want to ask you about permitting reform. Senator Capito 
referenced the importance of it. A lot of us on all sides of 
the issue are concerned about it and want some permitting 
reform. One of the things that I have emphasized throughout 
this debate is, it has become just as difficult to permit a 
wind farm or a solar panel farm or a transmission line as it is 
a fuel pipeline of some sort. Transmission lines and pipelines, 
and for that matter, interstate highways are long, linear, 
often, almost always, multi-State, multi-jurisdictional 
infrastructure.
    Because of the complexity of this type of infrastructure, 
Congress established the Nationwide Permit Program to allow 
these projects to obtain one permit, as long as they are 
determined to have a minimal effect on the environment.
    Can you discuss the importance of the nationwide permit, 
and maybe also considering both the efficiency of it, as well 
as the effectiveness, I guess, of a nationwide permit?
    Ms. Bodine. Yes. The Corps of Engineers' nationwide permits 
is really the reason why we haven't completely stopped building 
infrastructure in this country, because it is a more efficient 
and truncated review based on minimal impacts. There has been a 
gradual narrowing of the nationwide permits, which means that 
more and more would be subject to the individual permits, which 
are what take years and years and years, and are subject to 
lawsuits.
    If there isn't Federal jurisdiction, then you don't need to 
get the nationwide permit, but that question is going to be 
decided case by case, and it remains to be seen how that will 
be applied.
    Senator Cramer. It is hard for me as a former regulator to 
imagine multi-State, multi-jurisdictional, linear 
infrastructure that doesn't have a Federal nexus somewhere 
along the line, right, so it seems to me that. Anyway, that 
said, it is another part of the discussion I think we ought to 
get back to.
    Let me ask, where do you see the legal fight coming? 
Obviously, two and a half pages of amendments to a 141 page 
rule in the context of a major Supreme Court decision isn't 
going to be adequate, it is certainly not adequate for the 
Prairie Pothole region that I come from. By the way, with all 
due respect, not federally protected does not mean not 
protected. In fact, I would submit that the mediocrity of the 
Federal Government is far, far worse for the protection of 
wetlands in North Dakota than what North Dakotans, for that 
matter, what farmers, how they protect their own wetlands.
    Where do you see the legal fight coming in the next several 
months?
    Ms. Bodine. I think, and again, I am not representing 
anybody in this, but what I have read and heard is that yes, 
there are groups that are going to challenge the September 
conforming rule based on both the issue of no notice and 
comment as well as the substance, and then the litigation over 
the January rule is ongoing.
    That is why it is not in effect. That is why it is stayed 
in 26 States, and that litigation will go on. Yes, there will 
still be litigation.
    Senator Cramer. Let's face it, as long as there is chaos 
and uncertainty, there is going to be litigation and stays, and 
maybe that is a strategy in and of itself.
    Thank you, Mr. Chairman.
    Thank you.
    Senator Carper. Thank you, Senator.
    We have been joined by Senator Merkley.
    If you would like to jump in, you are next in line. Thanks 
for joining us.
    Senator Merkley. Thank you very much, Mr. Chairman.
    Senator Carper. After you, if no one else shows up, Senator 
Mullin, you would be next, and then Senator Boozman.
    Senator Merkley. Dr. Sullivan, it is well established, the 
connection between wetlands and the nesting and feeding habits 
of 50 percent of North American birds, 31 percent of plant 
species. These play a vital role in so many ways.
    I wanted to ask you, though, about a particular angle. That 
is related to whether the loss of protection for wetlands 
impacts tribal communities. The wetlands are critical to 
sustain fish species, like the various protected species in 
Klamath Basin in Oregon, culturally significant plants and 
first foods.
    Are some of these vital ecological and culture functions in 
jeopardy, and how will Sackett affect Tribes across the 
country?
    Mr. Sullivan. Thank you, Senator Merkley.
    Yes, this is a critical issue, one which I work with many 
tribal partners myself addressing these sorts of questions.
    I think we probably need to back up a step to fully 
understand the situation. One is, the key piece is that for the 
dispossession of land, when it is entered into the trust 
responsibility with the Tribes, and part of that trust 
responsibility was to protect natural resources, including 
water. That is a really critical piece that we have a burden of 
responsibility to protect water as well as other natural 
resources.
    The other pieces of this is, and it is clear to understand, 
that we have a duty to protect tribal rights and resources that 
we don't shoulder with every other group. Although this was 
initially meant to serve as a protective role, that trust 
responsibility has morphed today into Federal authority that is 
considered plenary.
    The reason that is important is the combination of limited 
tribal authority and plenary Federal authority has cause Tribes 
to rely heavily on Federal environmental legislation rather 
than their inherent sovereignty for environmental protections 
within tribal lands. That is one point I want to make.
    The other is that, despite the trust responsibility, many 
Tribes have found that Federal protection of waters is 
insufficient, has been inadequate in providing sufficient 
protection, leading to impaired water quality, largely because 
of the TAS provisions, which is the Treatment as a State, and I 
want to make a point here. As of 2018, only 54 of the roughly 
330 federally recognized Tribes that meet TAS eligibility 
requirements had received TAS status, and only 44 of those had 
their water quality standards approved by the EPA.
    This leads us to a situation where Tribes are in limbo a 
little bit in terms of protecting water. To your point, these 
waters are critical. And I showed a map earlier of ephemeral 
streams across multiple reservations. Those were mapping that 
we did using the most advanced techniques to map ephemeral 
streams. Ephemeral streams and wetlands are critical for many 
tribal nations for a suite of different purposes, ranging from 
subsistence purposes, hunting, fishing, and gathering, to 
spiritual purposes.
    A couple specific examples I could give is camas is a 
critical plant in the western United States in the Northwest. 
Where does it grow? It grows in areas around ephemeral streams 
and seasonal wetlands. These have been longstanding subsistence 
plants that are central to many tribal cultural practices and 
subsistence. So that is an example where those waters then lose 
protection.
    Another point that I really want to make, and this is 
critical, is that on many reservations, due to the Allotment 
Act, the Dawes Act, which was essentially that even within 
reservation land, non-Indians were allowed to come in and 
purchase land. So that patchwork of jurisdiction on the 
reservations makes it very hard for the Tribes to do this 
themselves, and they need the Clean Water Act protections to 
protect those critical systems.
    I think it is a critically important piece. I am actually 
working right now with the Coeur d'Alene Tribe where we are 
looking at wetlands and restoring wetlands to actually combat 
drought on the reservation. Critical question, absolute need 
for a consistent protection at the Federal level for wetlands, 
ephemeral streams, and to protect multiple uses, beneficial 
uses for Tribes.
    Senator Merkley. Thank you very much.
    My time is up, so I will just close with a comment, which 
is in Oregon, we have experienced intense droughts over the 
last few years. There is a lot more attention to the role of 
groundwater. Many ranchers are starting to ask for oversight of 
the control of groundwater for that reason, because if the 
level drops too low, you are in trouble. It is also drawing 
attention to the connection of the groundwater filtering and 
effect on cooling in terms of algae in the lakes and other 
factors, whether or not it is connected by surface water.
    Thank you, Mr. Chairman.
    Senator Carper. You are welcome. Thank you, I know you have 
a lot on your table this morning. Thanks so much for making 
time to join us and for your questions.
    Senator Mullin, you are next, please.
    Senator Mullin. Thank you, Mr. Chairman.
    Is it Sullivan, is that right? Where do you live?
    Mr. Sullivan. South Carolina.
    Senator Mullin. City?
    Mr. Sullivan. It is a small village called McClellanville.
    Senator Mullin. How much time do you spend in Indian 
country?
    Mr. Sullivan. How much time do I spend doing what?
    Senator Mullin. How much time do you spend in Indian 
country?
    Mr. Sullivan. Quite a bit. I used to live in Idaho; I have 
projects. I was just out, actually.
    Senator Mullin. Are you tribal yourself?
    Mr. Sullivan. I am not tribal, no.
    Senator Mullin. You are not? I am Cherokee. I lived in 
tribal land my whole life, and I can tell you, we start talking 
about seven generations, my kids are probably close to that. We 
live in the Cherokee Nation inside the reservation, my whole 
life. You bring up Wilma Mankiller and talk about seven 
generations there, and you really bring up a lot of interesting 
points.
    But you forget one thing, that Tribes have been fighting 
forever to get the government out of the way. We don't need 
more government involvement. In fact, that is what led us to 
Oklahoma to begin with. We have been fighting for water rights 
forever, and I can assure you that your definition is saying 
that all waters belong to the United States of America. Is that 
what you are saying?
    Because that map you showed up said that everything flows, 
eventually, into what you consider a navigable body of water, 
and it is all connected, and so by your definition, you are 
saying that all waters belong to the Waters of the U.S. Right?
    Mr. Sullivan. I am going to back up a step there. First, 
all the----
    Senator Mullin. No, I don't need you to back up. I am just 
asking you, is that what your definition is?
    Mr. Sullivan. My definition is that Waters of the U.S.----
    Senator Mullin. All tied together. That is basically what 
you are saying?
    Mr. Sullivan. My definition, from a scientific perspective, 
waters are tied together. I am not----
    Senator Mullin. OK, so all waters belong to the U.S., so 
there is no private water rights. So all this land rights that 
we have been fighting for, farmers have been fighting for, 
Tribes have been fighting for, actually, it doesn't exist, 
because underneath your definition, it all belongs to the 
United States, and we should all ask permission to the United 
States before we can even water our cows in a pond.
    Mr. Sullivan. No, not at all, and I think you are 
misinterpreting what I am saying and the intent of what I am 
saying.
    Senator Mullin. Underneath your broadened definition, you 
are saying all waters belong to the Waters of the U.S.
    Mr. Sullivan. No, I am here as a scientist, saying waters 
are connected.
    Senator Mullin. Well, you are also giving your opinion, 
too.
    Mr. Sullivan. No.
    Senator Mullin. Well, when you start talking about Wilma 
Mankiller, and you are talking about seven generations, and you 
are doing all this, yes, you are. You are giving your opinion 
about this in a place that you haven't lived.
    I take a little bit offense to it to some degree, because 
you keep talking about all this tribal like you are trying to 
protect tribal land, and you forget the simple fact that we 
have simply been fighting for water rights forever on our 
traditional lands, and we really don't want the Federal 
Government getting involved in it. That is not what we want. We 
want to be able to use our water without having to ask 
permission, and if you connect all the waters of the U.S. and 
you put it underneath a broad definition of saying that 
everything is tied into that, then that is exactly what it 
would lead to. It would exactly--if you say all of it belongs 
underneath Waters of the U.S., everything we would do on tribal 
land from then on would be us requiring to have some type of 
permit from a big, overreaching Federal Government. Would that 
be fair to say?
    Mr. Sullivan. I am waiting for you to finish so I can 
respond.
    Senator Mullin. Go ahead.
    Mr. Sullivan. I think of a couple points to make. First of 
all, I absolutely respect where you are coming from. The work I 
am presenting today and as part of my written testimony, is 
with tribal partners who wrote these papers, and we are working 
together. You are talking about opinions, but these are points 
that we are deriving together in collaboration.
    The position I have here is as a scientist understanding 
how these waters are connected and how alterations of that 
connectivity can impact waters on tribal lands.
    Senator Mullin. But you are saying that they are all 
connected.
    Mr. Sullivan. They are connected.
    Senator Mullin. Are you not afraid of the overreach of the 
Federal Government at this point, because I am very skeptical.
    Mr. Sullivan. My role here is as a scientist. I am not 
talking----
    Senator Mullin. Underneath the Clean Water Act, we 
originally said that it was navigable bodies of water. The 
reason why we said in the original navigable bodies of water, 
and we started talking about the 404 and the 402 permits was 
because we wanted to limit the scope and the reach of the 
Federal Government.
    We came in and redefined that to the Waters of the U.S., 
and specifically said they were adjacent, because we were 
afraid of the Federal Government overreach of going too far in 
country.
    Now, we are saying that everything is tied into. There are 
72,000 farmers in Oklahoma, 72,000. I am one of them. My family 
has been raising cattle on the same land we have been to since 
we were forced to walk there in the mid-1830s. And it is very 
difficult to say that now, from now on--are you gaveling me 
down, and everybody else has went farther than me?
    Senator Carper. No, I did not go like that, OK? Just to 
remind you--excuse me--just to remind you that your time has 
expired. Continue. Continue, OK?
    Senator Mullin. I am good.
    Senator Carper. All right.
    Please, go ahead. Thank you.
    Senator Lummis. Welcome, witnesses.
    Ms. Bodine, are you concerned that the wording of the 2023 
rule will create uncertainty for landowners across the West, 
and particularly in Wyoming?
    Ms. Bodine. Yes, Senator Lummis. I am very concerned about 
that. It has been set up as case by case jurisdiction, and as 
what we have seen before, that has led to regulatory expansion 
and inconsistencies.
    Senator Lummis. During your time at the EPA, have you ever 
seen the Administration willfully ignore the Court's ruling, as 
they seem to be doing in Sackett?
    Ms. Bodine. I have not.
    Senator Lummis. What are they hanging their coat on, in 
terms of departing from what seemed to be a clear direction in 
Sackett, to get to where they are today?
    Ms. Bodine. In their September 8th conforming rule, they 
excised significant nexus out of their regulations. And that is 
accurate. That reflects what the Sackett decision said.
    But what they left was all of the interpretive language, 
which was in guidance in the preamble. They didn't put it in 
regs, and that makes it all case by case, but they left it all 
intact. They have said, this is what we are going to do on a 
case by case basis to follow it.
    If you compare what they say, how they are going to 
interpret these terms with the opinion, they don't match. But 
we may end up having to litigate. People may end up having to 
litigate that on a permanent basis and not by challenging the 
rule. That remains to be seen.
    Senator Lummis. It seems so unique to me that this could be 
dealt with on a case by case basis, especially after a decision 
like Sackett. What makes that possible?
    Ms. Bodine. They could have written bright lines in their 
conforming rule and chose not to. I do think that the agencies 
are trying to hold onto as much jurisdiction as they wanted. 
There has to be some case by case. I am not going to say that 
everything is absolutely a bright line, but what we have here 
is essentially 100 percent case by case.
    Senator Lummis. I am deeply concerned about that, because 
some of the examples pre-Sackett of enforcement actions in 
Wyoming would, to the naked eye of people with common sense, 
seem to be beyond the scope of the Federal Government. It also 
seems to fail to recognize State jurisdiction over water, 
especially quantity, but also quality.
    What would you advise if you were involved in the 
decisionmaking at the agency as a clarification, so we are not 
just in this pattern of litigating? It almost seems like an 
effort is being made to run out the clock on people who are 
regulated and then have to access the courts to have a more 
reasonable interpretation of the law.
    Ms. Bodine. Most people just want to get their project 
done, and so they won't litigate. That is how you get ever 
increasing claims of jurisdiction.
    You talked about some older examples of overreach. My 
concern is that the way they have set this rule up, they have 
left the door open to go back to that same overreach because of 
the way they are defining their terms. I would recommend that 
the operative terms of how the statute should be implemented 
should be in rule language and not just left to a guidance 
document.
    Senator Lummis. We are told frequently that guidance is not 
necessarily something that has to be adhered to with a bright 
red line, but then there are examples where it is. Does the 
Congress need to step in and define guidance in a way that 
makes it less onerous?
    Ms. Bodine. If the agencies take the position that a 
guidance is binding, it is a rule, and it can be challenged in 
court.
    Senator Lummis. I thank the witness.
    Thank you, Mr. Chairman.
    Senator Carper. Thank you, ma'am.
    We have been joined by Senator Markey.
    Senator Markey, welcome, and you are recognized.
    Before you do, though, let me ask for a unanimous consent 
request, if I could, to submit for the record an amicus brief 
submitted in the Sackett case by 18 federally recognized Tribes 
outlining their concerns with the narrowing Clean Water Act 
protections. This brief affirms that narrowing Clean Water Act 
protections through Sackett would have dire consequences for 
Tribes, including undercutting their ability to protect against 
cross-border pollution.
    Is there any objection?
    Hearing none, Senator Markey.
    [The referenced information follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Senator Markey. Thank you, Mr. Chairman, very much.
    This year alone, we have seen severe flooding, costly 
storms across the country. We know that climate change is only 
going to make those disasters worse, more water, more often. 
And wetlands are vital to storing water before it gets into our 
homes and our communities. Almost two-thirds of our wetlands 
are now at risk of development and destruction, thanks to this 
misguided Supreme Court ruling.
    Dr. Sullivan, do you agree that the Sackett ruling is 
likely to intensify damage from flooding at a time when we 
actually need greater storage capacity from our wetlands, 
thanks to climate supercharged storms?
    Mr. Sullivan. Thank you, Senator Markey. I do. I absolutely 
agree. I think one of the key pieces that we have to recognize 
there is we have lost tremendous capacity already, so we are 
past a 50 percent loss of wetlands in the United States. I 
mentioned that earlier.
    Some of these States are upwards of 90 percent, so we are 
already at a point where the capacity of wetlands to mitigate 
flooding, exactly through the way you described, wetlands act 
as sponges, right, so during times of higher flows, they store 
water, and they release that slowly. They release it not only 
back onto the landscape, but into groundwater. Wetlands in 
their historic distribution, we would have seen them hemming 
most rivers and serving that role.
    I think as we are at a point now where we are working with 
a limited set, it is, on a commercial two engine airliner, we 
are down to one engine right now. When we think about how we 
are going to maximize the benefits of wetlands, one of those is 
understanding maximizing their protection so that we maintain 
the capacity for wetlands to mitigate against floods, which 
costs money and costs lives, but also, on the flip side, as we 
discussed earlier, to maximize their capacity to mitigate 
drought. Those are flip sides of the same coin.
    Senator Markey. Is it true that building over wetlands will 
also contribute to heat surges, amplifying the urban heat 
island effect that we had a hearing on recently?
    Mr. Sullivan. That is absolutely true. It is not just 
wetlands, it is streams. In fact, there is a well known 
scientific principle called the urban stream syndrome, which 
discusses the changes streams go through under urbanization. 
Streams and wetlands in urban environments create micro-
climates and reduce heat. They absorb, they provide green 
spaces, and they do exactly that. They create favorable 
climatic conditions on a local scale, so very critical 
functions.
    Senator Markey. From the Sackett ruling, we are supposed to 
think that the upstream headwaters don't have any relation to 
the downstream bodies of water that we fish in, swim in, and 
enjoy, but we know that water rolls downhill, so any problems 
in that water will roll down with it.
    Ms. Revels, from what you have seen as a waterkeeper, is it 
possible to protect our larger rivers, lakes, and bays without 
protecting headwater streams and wetlands?
    Ms. Revels. Absolutely not. In my experience, with just 
different things within communities, as a community member, I 
see, on the grass root level, all of the things that are 
affecting our waterway, like industries, stormwater runoff, 
things that we don't talk about that lead into our waterway 
that has to go somewhere. We know that water goes somewhere, 
and in these disasters where water is sitting and flowing, 
everything is moving everywhere, so it is a necessity to keep 
these protections so that our wetlands can work the way 
wetlands work, by filtering and purifying and putting less 
pressure on our infrastructure within our cities.
    Senator Markey. Do protected wetlands help keep stormwater 
from flooding chronically underinvested communities with aging 
or limited infrastructure, Ms. Revels?
    Ms. Revels. Absolutely, particularly communities like mine. 
Now, we are seeing the removal of over 126 acres of wetlands 
that were previously in front of my neighborhood, and we are 
just going to be able to sit back and see what happens, but we 
already know what is going to happen: More flooding and more 
devastation.
    Senator Markey. In your experience, do those heavy storms 
cause an uptick in pollution from industrial waste and 
untreated sewage overflow into communities like yours?
    Ms. Revels. Absolutely, because these things are left, they 
haven't been addressed yet, so when left unaddressed, it 
absolutely impacts the bigger, broader picture of how things 
are happening in the city.
    Ms. Bodine addressed the consent decree. We are still 
trying to make that work for the community, right, that we are 
still trying to see the impacts of those on the grass roots 
level.
    So yes, we need to protections to remain the way they are 
so that we can see more protections for our communities. 
Communities are the last persons that are asked questions. We 
have sat here and talked about protected wetlands, we talked 
about birds, we talked about Tribes, but the frontline 
communities that are seeing the cancer clusters and the cancer 
plumes and how the water moves those things around are the last 
to be spoken about or spoken to.
    Senator Markey. Thank you so much.
    Thanks, all of you, for your testimony.
    Thank you, Mr. Chairman.
    Senator Carper. Senator Markey, thanks so much for joining 
us. Thanks for those questions.
    We have been joined by my neighbor from Pennsylvania, 
Senator Fetterman.
    It is good to see you. Welcome. You are recognized.
    Senator Fetterman. Thank you, Chairman.
    Welcome, thank you for coming today.
    Just to kind of set the stage here, Pennsylvania, Dr. 
Sullivan, how do wetlands in Pennsylvania impact our drinking 
water?
    Mr. Sullivan. Wetlands in Pennsylvania and everywhere are 
critical in purifying water, and they do, actually, there are 
three really important pieces to that. They trap sediment, so 
they remove sediment out of the water, they remove nutrients, 
so nitrogen and phosphorus, those types of nutrients, and they 
detox the water, so they take chemicals out.
    In doing that, they reduce a huge expense to the taxpayer 
of purifying water. They do that in Pennsylvania, absolutely. 
They do that across the country, and they do that in a way that 
is 24/7. They work full time.
    Senator Fetterman. Because of the wetlands, that is an 
impact on clean water, right?
    Mr. Sullivan. Correct.
    Senator Fetterman. Gosh, I find clean water useful often. 
It is remarkable.
    [Laughter.]
    Senator Fetterman. I support clean water.
    So now, we have this situation here. The Supreme Court 
believes that unlimited money is speech, and they believe that 
women in this Nation aren't entitled to reproductive freedom, 
and now they attack the Clean Water Act as well, too. Again, 
the shocking opinion that clean water might be useful to 
Americans.
    Do you believe that this is now based on the politics, or 
is it because of a very careful, thorough scientific kind of 
review?
    Mr. Sullivan. Sackett got the science all wrong, and that 
is what I can say. The science is crystal clear. It is not 
confusing, right? The chemical, physical, biological integrity, 
which is the goal of the Clean Water Act, of downstream and 
downslope waters relies on wetlands and streams. It is 
virtually impossible to restore and maintain the health of our 
waters and uphold the primary goal of the Clean Water Act while 
only protecting adjoining waters.
    Senator Fetterman. I am no scientist. Our friends in Fox 
News don't even think I should be a Senator, but to me, 
personally, it just seems like it is really kind of an extreme 
right wing kind of deregulation obsessed that the Supreme 
Court, and I believe that it puts Pennsylvania's drinking water 
at risk.
    Could you explain that to me, as a non-scientist?
    Mr. Sullivan. Explain how it puts it at risk?
    Senator Fetterman. Yes, please.
    Mr. Sullivan. Yes. So, removing wetlands, removing streams 
and landscape, now I understand they are not protected, and 
people are saying that, well, just because they are not 
protected, there are other mechanisms, potentially, that are 
there, but history tells us a very different story. We arrived 
at a place where we had already lost 50 percent more of our 
wetlands across the country. It is only through legislation 
like the Clean Water Act that we actually can----
    Senator Fetterman. More than 50 percent? I want to 
reiterate that: More than 50 percent of our critical wetlands?
    Mr. Sullivan. More than 50 percent of wetlands have been 
lost, historically. That rate continued until the Clean Water 
Act, until legislation came that then started to slow down 
wetland loss.
    Unfortunately, history tells us there is no evidence to 
suggest that that is going to change unless we protect 
wetlands, set the standard for protection nationally and across 
the floor. So I think that is really critical.
    I would say, too, that the U.S. public agrees. There was a 
poll in the New York Times that 72 percent of American adults 
believe the Clean Water Act should be read broadly to include 
wetlands and not only major streams, rivers, and lakes.
    Senator Fetterman. I believe clean water is cool. We need 
it. I think that is kind of our job to make sure we are going 
to protect that, as well, too. And it is truly bizarre to me, 
personally, that anybody would attack the kind of legislation 
that has been a demonstrative and dramatic kind of change in 
our water quality. Is that accurate?
    Mr. Sullivan. No, it is absolutely accurate. Can I add one 
small piece there? I think as we think about these, and I 
brought this up earlier, are we asking the right questions? In 
my humble opinion, we should be aligning with the science 
first, and then once we have that set, then decide how do we 
use water responsibly within that context.
    Senator Fetterman. So wait, you are suggesting that we 
follow the science?
    Mr. Sullivan. I am absolutely suggesting that we follow the 
science.
    Senator Fetterman. Lunacy.
    [Laughter.]
    Mr. Sullivan. Just like we would go to the physician in 
order to follow the best medicine for our health.
    Senator Fetterman. OK. Thank you for joining, and I 
apologize for going over, Chairman.
    Thank you.
    Senator Carper. Not at all. We are glad you are here. 
Thanks.
    Senator Capito.
    Senator Capito. I would like to ask one final question 
before I have to go to another event.
    The Federal Government does protect clean water. Our State 
governments protect clean water, and you mentioned other 
agencies that are involved in this as well.
    Ms. Bodine, could you kind of enumerate for me where the 
protections are? We are not eliminating or getting rid of any 
protections of clean water here. We are actually asking an 
Administration to heed the decision, in part, a unanimous 
decision by our Supreme Court, and to adhere to the law as it 
was written 51 years ago and has been amended since then.
    Can you just talk, just say, if somebody is listening to 
this, what are our water protections now and how they exist?
    Ms. Bodine. Thank you, Senator Capito. I know that the 
Sackett decision has been depicted as this radical change, and 
it really isn't. For example, when you talk about isolated 
waters and wetlands, which the connectivity report tried to 
establish a basis for regulating those, even though in 2001, 
the Supreme Court said you couldn't regulate them under the 
SWANCC decision.
    Since that decision in 2001, however many years ago that 
was, EPA and the Corps have not tried to regulate these 
isolated wetlands and isolated waters because of SWANCC. They 
tried to expand their jurisdiction through interpretations 
including relying on the connectivity report, but they haven't 
done that, so that is not even a change from practice because 
of other Supreme Court decisions. Again, that would be status 
quo.
    But in terms of protections, we have other programs, 
including cooperative programs, that people engage in that 
protect wetlands. We do talk about the agriculture, the 
conservation programs from USDA. The Fish and Wildlife Service 
talked about how after SWANCC, after 2001, they said 88 percent 
of the prairie potholes are not regulated.
    OK, but then they went on to say, look, we work with the 
farmers in a cooperative way, and in the wet years, they are 
not plowing the prairie potholes. In the dry years, they can 
plant there. And it is cyclical because of how climate works; 
it is always cyclical.
    Again, that is not the same as saying you can never plow 
there. It is not the same as taking someone's land away. And 
that a was the status quo that was described in a 2014 report 
by Fish and Wildlife Service.
    Then, of course, when we talked about waterways, it is 
true. Water flows downstream, undisputedly. You can't just dump 
pollutants into a channel, and I don't care whether it is 
ephemeral or a ditch or any kind of channel, a fissure. All 
those meet the definition of a point source in the Clean Water 
Act. You discharge into a point source, and it is conveyed, 
another word from the statute, to a navigable water, it is 
regulated.
    So a lot of regulatory remains, a lot of nonregulatory 
remains. When we talk about other authorities and other 
projects like the infrastructure projects that this Committee 
spent a lot of time on, I have to disagree. The Corps of 
Engineers projects that I was talking about for flood control 
have nothing to do with restoration. The restoration authority 
is a different authority of the Corps'.
    The flood control they do, we call it soft infrastructure 
or green infrastructure. That is not a restoration. That is 
setting aside or buying up land instead of building levees. 
That is done; that is part of projects, where you preserve the 
wetlands to avoid exactly the flood impacts that, I think Ms. 
Revels was talking about, and we do the same thing with our 
sewer overflow projects. We call it green infrastructure.
    Senator Markey was talking about stormwater. I am 
personally aware of a number of stormwater projects and consent 
decrees where the solution was setting aside land to act as the 
sponge. That was the solution to deal with the stormwater 
problem. None of those authorities are affected at all by the 
Sackett decision.
    Senator Capito. Thank you, all three of you.
    Thank you.
    Senator Carper. Senator Capito, thanks. We will see you on 
the floor later today. Thank you, ma'am.
    I have a couple questions. We may be joined by a few of our 
other colleagues. We are going to start voting here. In fact, 
we may have already started voting, but let us keep going until 
we run out of time.
    Are you OK on time right now? All right.
    Ms. Revels, are you OK on time?
    Ms. Revels. Yes, I am good. Thank you.
    Senator Carper. Good.
    Ms. Revels, we have just been joined by Senator Whitehouse. 
While he settles in, tell us, where are you today? Are you in 
Houston?
    Ms. Revels. Yes, I am in Houston.
    Senator Carper. OK. All right.
    We have just been joined by a Senator from a State even 
smaller than Delaware. That would be the State of Rhode Island. 
We are delighted that Sheldon Whitehouse has joined us. He is a 
great member of this Committee.
    Sheldon, when you are ready, you are on.
    Senator Whitehouse. Higher, but smaller. We share being 
coastal. We share being small, and we share being faced by 
having to redraw the maps of our States, thanks to fossil fuel 
emissions driven climate change and sea level rise, so we have 
a lot in common.
    One of the things that I want to make a matter of record 
here is that the Sackett case is one of a series of cases in 
which the Republican appointees to the Supreme Court, who I 
would perhaps more accurately refer to as the Federalist 
Society Justices, have rendered decisions that are very much in 
the interests of big polluters. And there is an unpleasant 
overlap between the billionaire funders of the Federalist 
Society while the lists off which Supreme Court nominations 
were chosen and the billionaires who funded the ad campaigns 
against Judge Garland first, and then for the three Trump 
nominees, and a lot of the groups that show up in the Supreme 
Court to direct those chosen justices how to rule.
    In this particular case, we had, first of all, the U.S. 
Chamber of Commerce, which refuses to disclose how much fossil 
fuel money it receives, but has become, as measured by the 
influence map organization, one of the worst climate 
obstructors in America, notwithstanding that is not the favored 
position of a good number of its members. Others included 
Americans for Prosperity Foundation, which is a 501(c)(3) front 
group that the Koch operation runs.
    The state of the art these days is to have a 501(c)(3) and 
a 501(c)(4) and have them essentially be the same entity, same 
location, overlapping staff, board, donors, all of that, and 
one of them is the 501(c)(3) and one of them is the 501(c)(4). 
Those of us in politics know Americans for Prosperity, the 
501(c)(4), as one of the most aggressive and powerful political 
battleships of the Koch Brothers organization. So, Americans 
for Prosperity Foundation showing up is a pretty big clue as to 
what the Koch fossil fuel empire wants.
    Also, it is supported by Donors Trust, Bradley Foundation, 
and the Sarah Scaife Foundation. The Cato Institute also turned 
up, funded by the Kochs, Donors Capital, Donors Trust, Bradley 
Foundation. The Claremont Institute turned up, funded by Donors 
Capital, Donors Trust, the Bradley Foundation, and the Sarah 
Scaife Foundation. Liberty Justice Center turned up, funded by 
Donors Trust and the Bradley Foundation.
    Something called the NFIB Small Business Legal Center 
showed up, funded by Donors Capital, Donors Trust, and the 
Bradley Foundation. The Atlantic Legal Foundation showed up, 
funded by the Bradley Foundation and the Sarah Scaife 
Foundation. The Mountain States Legal Foundation showed up, 
funded by the Kochs, Donors Capital, Donors Trust, the Bradley 
Foundation, and the Sarah Scaife Foundation.
    The Southeastern Legal Foundation showed up, funded by 
Donors Trust, the Bradley Foundation, and the Sarah Scaife 
Foundation, and something called the Washington Legal 
Foundation showed up, funded by the Kochs, by Donors Capital, 
by Donors Trust, by the Bradley Foundation, and by the Sarah 
Scaife Foundation.
    As you can see, from those common funders, it is very hard 
to distinguish between all those different amici, and 
particularly because the Supreme Court didn't require them to 
disclose those donors, and didn't require them to show that 
they weren't, in fact, one single interlocking group of 
scripted and choreographed entities trying to look independent, 
when in fact, they were all part of the same operation. And 
sure enough, in this case, they got what the big donors wanted.
    Thank you very much.
    Senator Carper. Thank you very much.
    I am going to go back just a little bit earlier in the 
hearing. Senator Cramer correctly pointed out that we are 
talking past each other on science and law. As a legislator 
here, along with my colleagues, I have a lot of respect for 
law, as you would hope would be the case, but I know we can't 
pass laws to tell water how to flow. I think we need to 
understand that by changing the decades long understanding of 
what the Clean Water Act protects and the Supreme Court has 
changed the realities on the ground.
    Dr. Sullivan, could you just please give us maybe a couple 
real world examples of that?
    Mr. Sullivan. Yes. I think talking about place based 
examples is important. I guess, let me start on a broad scale 
first, though, and just remind folks again that we have lost 
over 50 percent of wetlands, and so one out of every two 
wetlands is gone. Even at a large scale, what we see is already 
a reduced number.
    Let me take you to South Carolina for a moment, where 
nearly 4.6 million acres are categorized as wetlands, of which 
90 percent are freshwater wetlands. A large chunk of the land 
area of South Carolina is characterized as a wetland, ranking 
South Caroline as the State with the third highest percentage 
of land area of wetlands, so it is really part of our legacy. 
It is a quintessential part of the State. They support fish and 
wildlife, recreation, hunting, tourism, education.
    I work at an institute where we have partly a focus on 
wetlands and streams, and the educational component is 
critical. It is a huge tourist piece, as well, a huge revenue 
builder. We have talked about their role in mitigating floods 
and clean water. They are truly a quintessential part of our 
landscape, and certainly they are in danger without the 
safeguards, the full safeguards of the Clean Water Act.
    In terms of a specific example, I think there are a lot, 
but I think let us go to the Okefenokee Swamp for a moment, 
which is in Georgia. It is one of the largest remaining, intact 
freshwater ecosystems in North America. In addition to its 
ecological significance, it is critically important to local 
communities, supporting over 750 jobs and nearly $65 million in 
annual economic output per year.
    It is a national wildlife refuge, which is great, so it is 
protected, but the concern is that on its doorstep, there are 
hundreds and hundreds, over 600 acres, of wetlands that are 
unprotected and subject to mining operations and strip mining. 
This is a wild place. It is iconic. It is one of the last 
remaining wild wetlands that we have, and wetlands that are 
bordering it are directly purifying the water. They are the 
source waters for the Okefenokee Swamp. We are threatening 
thousands of species of plants and wildlife, recreational 
opportunities for birders, fishers, hikers, and kayakers, 
photographers, more and more.
    That is an example. I think there are many across the 
country, obviously. I would encourage everybody to think about 
their own landscapes and wetlands that have meaning to them and 
understand that not only have a lot of wetlands been lost, but 
most of those wetlands likely remain unprotected, at this 
point.
    Senator Carper. Thanks very much.
    Ms. Revels, I have a question for you. EPA has changed its 
regulations as quickly as possible to conform to the Sackett 
decision, as you know. I was surprised how quickly they did 
that. They did that in order to allow permitting decisions to 
resume.
    Now, we are hearing complaints that EPA may not have gone 
far enough. I think these concerns miss the point. We just had 
a radical, I think, a sweeping reduction in water protections. 
Ms. Revels, what could this mean for your community? The 
question is, what could this mean for your community? Could you 
just give us some thoughts one that, please? Go ahead.
    Ms. Revels. For my community, it looks like possibly 
looking like more industry coming in and destroying the few 
wetlands that we have left, and then those things have a 
cumulative impact. Ms. Bodine talked about the minimal impacts. 
We bring industry in, and then they have all these different 
permits, stormwater runoff, all these different things that 
impact our water and how many cumulative minimal impacts can 
one community withstand, right?
    So, it just creates a bigger compound. It is like putting 
sprinkles on the cake. It already had the icing, it was already 
really good, and then you sprinkle the sprinkles, and you just 
add more layers to an already complex issue that is really 
difficult for community members like myself to even address 
these things at a local level and then at a State level, and 
here at DC. It becomes taxing on community members, and 
oftentimes, outside of our areas of expertise.
    We know how to survive storms. We know how to be resilient. 
We know how to build ourselves back up, but we need protections 
to help us with those things as we build ourselves up and make 
our communities more resilient, we need protections that are 
going to think about the people to come.
    I am already some of your kids' age, and just think about 
my kid and our grandkids that are going to have to clean this 
up again. It is a reason that the definitions were amended to 
protect communities from industry that is just dumping and just 
not thinking about everybody else. We can't just think about 
one group. We have to think about the community members, also.
    Thank you.
    Senator Carper. OK, thank you.
    Dr. Sullivan, another question for you, if I could. We have 
heard from some of our Republican colleagues that the Sackett 
decision aligns with the intent of the Clean Water Act. 
However, as I mentioned, I think I mentioned in my statement, 
the Clean Water Act clearly states, ``The objective of this Act 
is to restore and maintain the chemical, physical, and 
biological integrity of our Nation's waters.''
    Given your scientific understanding of how the health of 
our Nation's waterways is interconnected with the health of our 
wetlands and our streams, do you believe that the Sackett 
decision aligns with the objective of the Clean Water Act? If 
you would, please elaborate on that.
    Mr. Sullivan. No, I do not. I believe everything you just 
said is very accurate. The science, and I know Ms. Bodine has 
referenced the connectivity report, which is a fundamental 
document. I want to remind folks that almost 10 years have 
passed since then, and there has been a lot of work done in 
this field and understanding connectivity and the impacts of 
altered connectivity on downstream and downslope waters, and 
the evidence increasingly points to the critical nature of 
maintaining, protecting headwater streams, non-permanent 
streams, wetlands, adjacent, and geographically isolated. We 
talked about prairie potholes, as an example.
    Alterations to these, the science is unequivocal. It is 
very clear what it is telling us. I think that is one of the 
pieces that I am struggling with is that we are talking a lot 
about regulation and those sorts of things, which I understand, 
but the Sackett decision got the science all wrong. I can't say 
that enough. It really is not representing the science. To be 
perfectly blunt, it shows a fundamental lack of understanding 
of how natural waters function. That decision is counter to 
what we understand.
    Again, it is not just the connectivity report, but it is a 
decade of research since then, and thousands of scientists will 
agree with me on this, that are demonstrably showing that if we 
do not protect upstream, upslope waters, there are serious 
consequences.
    Again, I will use an analogy with our own bodies. If you go 
into the hospital and get an IV, it goes into a small vein. 
Where does that go? It goes through your circulatory system. It 
is the same idea. I don't think many of us would be willing to 
sacrifice 10, 20, 30 percent of our circulatory systems and 
say, well, that is OK. We don't need to protect or maintain the 
health of a large portion of our circulatory systems. We will 
be fine.
    I can't state enough that the science is clear. I do think 
that we are locked in a circular pattern here, and that one, we 
need to be more thoughtful in terms of rulemaking.
    I will give you a specific example, if I may. It has always 
been a binary, protected or not protected, yet there are 
examples at the State level and others, for example, with 
riparian protections, not water, well, certainly riparian 
protections, where it is a graded system. Certain waters are 
most protected. Some are intermediate protection. Some are less 
protected.
    There are more strategic ways to be going about this, and I 
don't think we are exploring those options. And I think we need 
to value the science, follow the science, and be strategic in 
how we proceed forward.
    Senator Carper. Thank you for that.
    I am going to ask one more question of you, Dr. Sullivan, 
and then I am going to just ask a question of all three of you 
to sort of close us out please, so thank you for your patience 
with us.
    The last question I will ask of you, Dr. Sullivan, is we 
have heard testimony that Sackett does not represent a 
fundamental shift in wetlands protections and that there are 
other Federal laws and programs that do protect wetlands. Would 
you just explain for us, if you would, Dr. Sullivan, why laws 
such as the Endangered Species Act and North American Wetlands 
Conservation Act, laws that I happen to support strongly, don't 
fill the void left by the Sackett decision?
    Mr. Sullivan. Yes. I agree those are excellent programs. 
They should be supplemental to the Clean Water Act. The reason 
is multifold.
    I will give you an example with the Endangered Species Act. 
The Endangered Species Act is based on individual organisms' 
current status, trends, life history, information that is 
derived from that specific organism, so it protects habitat of 
that organism. Yet, most of those cases are going to be 
organisms with very limited home ranges, very limited 
territories.
    As a result, that only protects that particular habitat, 
spatially distinct. It is not something that is far reaching. 
It is based on individual species, and those species, of 
course, are going to have their specific home ranges.
    We can think about, there are species of fish, for example, 
that are endemic only to, endangered species, to parts of Death 
Valley. Therefore, for that particular fish, the Endangered 
Species Act will protect habitat in that place. We need 
something that covers the entire country. That is an example.
    The other thing is species can be delisted. We need long 
term plans here. That is supplemental, in terms of wetland 
protection.
    The other program is a grants based program, and I agree, 
there has been some great work done. I absolutely agree with 
that, but any grants based program is going to be patchy in 
distribution. It is going to be mediated by who applies, where 
they have access.
    Again, it is not creating a floor of protection, which is 
needed for wetlands. We cannot afford to lose more wetlands and 
streams. We need a comprehensive protection, which is exactly 
what the intent of the Clean Water Act was.
    Senator Carper. Just a quick comment, Ms. Bodine, on the 
same question, if you would. Any thoughts that you have, please 
share them with us, on the question I just asked. If you don't 
have any comments, that is fine, we will go to my closing 
question. All right?
    Ms. Bodine. I think I have, the question is, comprehensive 
versus the existence of the other programs.
    The Supreme Court in Sackett interpreted the Clean Water 
Act. All nine agreed that connectivity is not a basis for the 
jurisdiction. That significant nexus concept was not valid.
    We already, as I put in my written testimony, as I have 
spoken about today, there are a number of programs out there. 
Does one collectively cover everything? No, but that doesn't 
mean that we are going to lose the remaining 50 percent of our 
wetlands.
    I believe this building was built on a wetland. Certainly, 
the Mall was actually an estuary. So yes, there has been a lot 
of building. Maybe it is first in time, first in right, but I 
am by no means saying that wetlands aren't valuable, and I 
agree they should be protected.
    But the real fundamental question is how, and should it be 
through various conservation programs, should it be through 
cooperative programs, should it be a combination of all that, 
or should it be a single Federal regulatory program? The Clean 
Water Act has lofty goals, and then it has some nonregulatory 
programs, and some regulatory programs. It by no means says 
that we are going to achieve our lofty goal with just one tool. 
The Clean Water Act has a lot of tools, and then the Federal 
Government has a lot of tools.
    Senator Carper. All right, thank you.
    My closing question will be for each of you. One of the 
things that Senator Capito and I try to do is develop consensus 
on difficult issues. We have been remarkably successful, not 
entirely successful, remarkably successful on a wide range of 
issues, not the least of which is the Bipartisan Infrastructure 
Law, a huge piece of legislation which has its roots right here 
in this room with this Committee. Democrat and Republican, 
bipartisan, and something that we are both very proud of and 
seeing it implemented across the country.
    My closing question would be, we have this situation where 
we have a law we have had for decades that has been litigated. 
The Supreme Court recently with Sackett handed down a decision 
that folks on our side aren't at all pleased with. The 
Administration came right back out of EPA a regulation to try 
to say well, if this is going to be Sackett, we are going to 
have to live with Sackett for a while. Here are the regs we 
think that are consistent and line up with that decision.
    My question would be this: We are coming out of this 
hearing today. I am going to be here for 14 more months. I am 
standing alongside the Christina River, a beautiful river which 
flows through Wilmington, Delaware.
    A couple months ago, I announced I wouldn't run for 
reelection. I had a great run in the Navy and as Delaware's 
treasurer, Congressman, Governor, Senator, and to serve here 
and chair this Committee, and the Homeland Security Committee, 
I have just been really blessed.
    In the next 14 months that I have here, I am going to be 
looking for consensus and implementing a lot of stuff that we 
have authored and enacted, a lot of legislation, but I am also 
going to be looking for consensus, maybe on some areas where we 
have not identified the consensus. As we have gone through this 
hearing today, any thoughts that you might share with us, and 
where you think there is hope for some consensus, where we 
might actually work together toward actually making sure that 
we do have clean water from coast to coast in all kinds of 
States and situations.
    One of the things that Senator Capito and I have been 
trying to do is provide some certainty and predictability. I 
used to work, when I got out of the Navy, many years ago, and 
moved to Delaware, and I went to work in the Division of 
Economic Development for 6 months and then got to run for State 
treasurer when I was 29, and I said, I want to do that. One of 
the things I learned in the 6 months at the Division of 
Economic Development was businesses need certainty and 
predictability.
    Right now, we don't have a lot of that in the situation we 
are in today. So any thoughts you have about maybe, in the next 
14 months, we will restore a little bit of certainty and 
predictability, and if there are any areas that you think where 
there might be some bipartisan consensus that we should pursue.
    Ms. Bodine, if you would just go first, and then we will 
just ask our other witnesses, as well, please. It is not an 
easy question. Any thoughts you have.
    Ms. Bodine. This Committee has had great successes working 
on bipartisan issues, and I would point out in particular that 
the infrastructure programs under the jurisdiction of this 
Committee have always had very great bipartisan support. You 
had a great bipartisan success with the Infrastructure Bill 
from about 2 years ago.
    You may want to look at the infrastructure model rather 
than the regulatory model, because I think that, given how this 
Committee and your past successes, that is going to be your 
highest opportunity for bipartisan agreement.
    Senator Carper. All right, thank you.
    Dr. Sullivan.
    Mr. Sullivan. Yes, thanks for the opportunity to comment on 
this. I have appreciated being here. I value all of the 
comments from my colleagues here and from the Senators. I 
agree. I grew up on a farm, and I understand.
    Senator Carper. Where was the farm?
    Mr. Sullivan. It was in Vermont.
    Senator Carper. OK. What did you raise there?
    Mr. Sullivan. We had dairy for a while, a long time, and 
then we had beef cattle, and now it is a sugar operation.
    The point I am making is, I am a scientist, but I also 
understand the practicality around this. I understand that we 
have to find common ground.
    What I am asking for is that we value the science in doing 
that. As I mentioned before, you go to the physician, you want 
them to tell you the most current, best treatment for whatever 
your condition is. We need to do the same thing. Sackett has 
not done that; it has taken us away from the science.
    In terms of next steps, I gave you one before, and I will 
repeat it because I think it is important. I think we have been 
locked in a bit of a cycle and not thinking as creatively as we 
can in the rulemaking process and in how we approach this. To 
repeat, at the risk of repeating, but I think it is worthwhile, 
we have been very binary in our approach to water protection. 
And although the connectivity report and our work since then 
has shown that there is a gradient of the degree to which 
upstream and upslope waters affect downslope waters, the 
rulemaking has still been very binary. It has been protected or 
not protected. Even if it is a case by case, it has still been, 
at the end, protected or not protected.
    We have an opportunity to think a little differently and to 
understand there are models out there that led us to look at 
these, and this could be an area, maybe, where we could get 
some consensus to say, can we come up with an understanding 
that certain waters are going to be the highest protection 
level, some are going to be a little lower. We understand that, 
so I think that is really important to do.
    I also, and I wish Senator Mullin hadn't left quite as 
quickly as he did, because I had an important point I wanted to 
make, is that tribal colleagues and I have actually suggested 
that there be a separate category of WOTUS for our tribal 
nations that are informed by some of the concerns he was 
bringing up that are in consultation with the Tribes.
    I think that is really important that we understand, and we 
dig a little deeper, but I do feel that we need a 
comprehensive--I do understand there are a lot of programs out 
there. I feel very strongly as a scientist in what I see these 
programs doing and some of the outcomes, they are not the same 
as a Federal level floor. So I feel very strongly that we need 
to value the science. We need to respect that at the first 
pass, and then at the second pass, we can figure out 
effectively together how to use water and working landscapes.
    Senator Carper. All right, good, thanks. Thanks very much.
    I would ask our minority staff, if you could just convey 
what our witness has just said to Senator Mullin, I would 
appreciate that. Thanks very much.
    OK, Ms. Revels, please, if you would like to comment. Same 
question: We are looking for a pathway to consensus, if that is 
a hopeless journey, or if that is man's triumph of hope over 
experience, that is fine, but any thoughts you have toward how 
we might move toward consensus on this really important issue. 
Ms. Revels.
    Ms. Revels. Yes, sir. Absolutely.
    For me, I think there is plenty of opportunity. This is not 
a Republican or a Democrat issue. This is a human issue. This 
is an issue of us all, and it is important that we all have our 
human hats on and our community hats on and just always are 
considering the impacts of those that are on the frontlines.
    This is my life. I have gotten into this work through 
necessity, not because I thought it would be a great career 
path. In the consideration, it is so imperative to have people 
that have experienced the things that we have experienced, like 
Harvey, and remembering that when we remove wetlands and pave 
over wetlands, that is climate change. We are changing the 
climate; we are changing the planet.
    We are all human, and there is opportunity for us to 
remember our humanity. You guys can always come down to Houston 
and just see the different demographics from 6 years ago with 
Harvey to today, and see what the science would say about that.
    Senator Carper. Good. Thank you, ma'am, and thanks for 
joining us all the way from Houston.
    I am going to give a short closing statement, and then we 
will wrap it up.
    In closing, again, I want to thank the three of you, each 
of you, very much for appearing before us today. I want to 
thank my colleagues who have been able to join us and to 
participate even though we have a lot going on in other 
committees now and now with votes on the floor.
    Today, we have heard about the scientific context and 
actually heard about the history, and we have heard about the 
impacts of the Supreme Court's decision to dramatically narrow 
the scope of the Clean Water Act. As a matter of science, we 
have heard that wetlands and more than a million miles of 
streams are inextricably linked to downstream water quality.
    As a matter of history, we have heard that this decision 
reverses over four decades of clean water implementation, and 
as a matter of impacts, we have heard that the loss of 
protections for over half of our Nation's remaining wetlands 
and millions of miles of streams will lead to more flooding, 
more polluted waters, and unfortunately, harm to wildlife. 
Through Sackett, the Supreme Court has weakened one of our 
bedrock environmental laws, and harms will be felt nationwide.
    I would also like to ask, at this point, unanimous consent 
to submit for the record a number of letters and statements 
that I have received from stakeholders. These documents 
underscore the importance of Clean Water Act protections for 
our Nation's health and environment and economy.
    This is one of my favorite parts of a hearing when I get to 
ask unanimous consent for something to enter into the record, 
and there is nobody here to object, and I am not going to 
object to my own unanimous consent request.
    Without objection.
    [The referenced information follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Senator Carper. Seriously though, before we adjourn, 
Senators may submit their questions for the record until the 
close of business on Wednesday, November 1st. We will compile 
those questions. We will send them to our witnesses, and we ask 
our witnesses to reply by Wednesday, November 15th.
    With that, again, our thanks to each of you. To be 
continued.
    I will close with a nod to my mother. We were born in a 
coal mining town in West Virginia. We grew up in Danville and 
Roanoke, Virginia, but my mother was a deeply religious woman. 
She wanted to make sure we always focused on Matthew 25, the 
least of these, which starts off, ``When I was thirsty, did you 
give me a drink?''
    So with the issues that are before us today, I think it is 
a moral issue, and it is something that we have a moral 
imperative to make sure we get it right. We have been trying 
for a long time, but that doesn't mean we should quit now, and 
I have no intention. In the next 14 months, I like to say I am 
going to race once through the tape. Since we are talking about 
water here, I will have to come up with a new, different kind 
of way of saying that, like swim through the water.
    Anyway, I want to make sure if we can make some progress on 
this front, that we do find some consensus and ways to provide 
some certainty and predictability, and I like to do that 
keeping in mind the moral imperative that we face with respect 
to making sure we do have clean water to drink and to live by.
    With that, this hearing is adjourned. Thank you all.
    [Whereupon, at 12:03 p.m., the hearing was concluded.]

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