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





                                  

 
   WATERS OF THE UNITED STATES IMPLEMENTATION POST-SACKETT DECISION: 
                      EXPERIENCES AND PERSPECTIVES

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

                                (118-69)

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                    WATER RESOURCES AND ENVIRONMENT

                                 OF THE

                              COMMITTEE ON
                   TRANSPORTATION AND INFRASTRUCTURE
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED EIGHTEENTH CONGRESS

                             SECOND SESSION

                               __________

                           SEPTEMBER 11, 2024

                               __________

                       Printed for the use of the
             Committee on Transportation and Infrastructure
             
  GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT
            
             


     Available online at: https://www.govinfo.gov/committee/house-
     transportation?path=/browsecommittee/chamber/house/committee/
                             transportation
                             
                             
                           _______

               U.S. GOVERNMENT PUBLISHING OFFICE 
58-131 PDF           WASHINGTON : 2025                            
                             
                             
                             
                             
                             
                             
             COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

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

            Subcommittee on Water Resources and Environment

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



                                CONTENTS

                                                                   Page

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

                 STATEMENTS OF MEMBERS OF THE COMMITTEE

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

                               WITNESSES

Emma Pokon, Commissioner, Alaska Department of Environmental 
  Conservation, oral statement...................................    11
    Prepared statement...........................................    12
Nicole Rowan, Director, Water Quality Control Division, Colorado 
  Department of Public Health and Environment, oral statement....    13
    Prepared statement...........................................    15
Courtney Briggs, Chairman, Waters Advocacy Coalition, on behalf 
  of the American Farm Bureau Federation, oral statement.........    19
    Prepared statement...........................................    21
Vincent E. Messerly, President, Stream and Wetlands Foundation, 
  on behalf of the National Association of Home Builders, oral 
  statement......................................................    27
    Prepared statement...........................................    29

                       SUBMISSIONS FOR THE RECORD

Response to Waters Advocacy Coalition's Freedom of Information 
  Act Request, Submitted for the Record by Hon. Mike Collins.....    53
Submissions for the Record by Hon. David Rouzer:
    Letter of September 11, 2024, to Hon. David Rouzer, Chairman, 
      and Hon. Grace F. Napolitano, Ranking Member, Subcommittee 
      on Water Resources and Environment, from Kristen 
      Swearingen, Vice President, Legislative and Political 
      Affairs, Associated Builders and Contractors...............    59
    Letter of September 9, 2024, to the Committee on 
      Transportation and Infrastructure and the Subcommittee on 
      Water Resources and Environment, from Benjamin Davenport, 
      Executive Vice President, Idaho Mining Association.........    60
    Letter of September 9, 2024, to Hon. David Rouzer, Chairman, 
      and Hon. Grace F. Napolitano, Ranking Member, Subcommittee 
      on Water Resources and Environment, from Alex Etchen, Vice 
      President, Government Relations, Associated General 
      Contractors of America.....................................    61
    Letter of September 10, 2024, and Memo from Fall 2023 to Hon. 
      David Rouzer, Chairman, and Hon. Grace F. Napolitano, 
      Ranking Member, Subcommittee on Water Resources and 
      Environment, from Chad W. Lord, Senior Director, Government 
      Affairs, National Parks Conservation Association...........    62
    Letter of September 11, 2024, to Hon. David Rouzer, Chairman, 
      and Hon. Grace F. Napolitano, Ranking Member, Subcommittee 
      on Water Resources and Environment, from Michele Stanley, 
      Executive Vice President and Chief Advocacy Officer, 
      National Stone, Sand & Gravel Association..................    68
    Letter of September 11, 2024, to Hon. David Rouzer, Chairman, 
      and Hon. Grace F. Napolitano, Ranking Member, Subcommittee 
      on Water Resources and Environment, from Rich Nolan, 
      President and Chief Executive Officer, National Mining 
      Association................................................    69
    Letter of September 6, 2024, to the Committee on 
      Transportation and Infrastructure and the Subcommittee on 
      Water Resources and Environment, from Ryan Anderson, 
      Commissioner, Alaska Department of Transportation and 
      Public Facilities..........................................    71
    Letter of September 6, 2024, to Hon. Sam Graves, Chairman, 
      and Hon. Rick Larsen, Ranking Member, Committee on 
      Transportation and Infrastructure, and Hon. David Rouzer, 
      Chairman, and Hon. Grace F. Napolitano, Ranking Member, 
      Subcommittee on Water Resources and Environment, from 24 
      State Attorneys General....................................    72
Submissions for the Record by Hon. Grace F. Napolitano:
    Statement of American Rivers.................................    76
    Letter of September 10, 2024, to Hon. Sam Graves, Chairman, 
      and Hon. Rick Larsen, Ranking Member, Committee on 
      Transportation and Infrastructure, and Hon. David Rouzer, 
      Chairman, and Hon. Grace F. Napolitano, Ranking Member, 
      Subcommittee on Water Resources and Environment, from 
      Felice Stadler, Vice President, Government Affairs, 
      National Audubon Society...................................    82
    Letter of September 10, 2024, to Hon. Sam Graves, Chairman, 
      and Hon. Rick Larsen, Ranking Member, Committee on 
      Transportation and Infrastructure, and Hon. David Rouzer, 
      Chairman, and Hon. Grace F. Napolitano, Ranking Member, 
      Subcommittee on Water Resources and Environment, from the 
      Clean Water for All Coalition..............................    83
    Letter of September 11, 2024, to Hon. David Rouzer, Chairman, 
      and Hon. Grace F. Napolitano, Ranking Member, Subcommittee 
      on Water Resources and Environment, from Jim Murphy, Senior 
      Director, Legal Advocacy, National Wildlife Federation.....    86
    Letter of October 17, 2023, to Hon. Thomas R. Carper, 
      Chairman, and Hon. Shelley Moore Capito, Ranking Member, 
      Senate Committee on Environment and Public Works, from 
      farmers and agricultural professionals.....................    89
    Letter of September 10, 2024, to Hon. Sam Graves, Chairman, 
      and Hon. Rick Larsen, Ranking Member, Committee on 
      Transportation and Infrastructure, and Hon. David Rouzer, 
      Chairman, and Hon. Grace F. Napolitano, Ranking Member, 
      Subcommittee on Water Resources and Environment, from 
      Protect Colorado Waters Coalition..........................    90

                                APPENDIX

Questions from Hon. David Rouzer to Emma Pokon, Commissioner, 
  Alaska Department of Environmental Conservation................    93
Questions from Hon. David Rouzer to Courtney Briggs, Chairman, 
  Waters Advocacy Coalition, on behalf of the American Farm 
  Bureau Federation..............................................    96
Questions from Hon. David Rouzer to Vincent E. Messerly, 
  President, Stream and Wetlands Foundation, on behalf of the 
  National Association of Home Builders..........................    98




                           September 6, 2024

    SUMMARY OF SUBJECT MATTER

    TO:      LMembers, Subcommittee on Water Resources and 
Environment
    FROM:  LStaff, Subcommittee on Water Resources and 
Environment
    RE:      LSubcommittee Hearing on ``Waters of the United 
States Implementation Post-Sackett Decision: Experiences and 
Perspectives''
_______________________________________________________________________


                               I. PURPOSE

    The Subcommittee on Water Resources and Environment of the 
Committee on Transportation and Infrastructure will meet on 
Wednesday September 11, 2024, at 10:00 a.m. ET in Room 2167 of 
the Rayburn House Office Building to receive testimony at a 
hearing entitled, ``Waters of the United States Implementation 
Post-Sackett Decision: Experiences and Perspectives.'' The 
hearing will examine implementation of the Administration's 
conforming rule on the definition of the definition of ``waters 
of the United States'' (WOTUS) under the Clean Water Act (CWA), 
following the 2023 Supreme Court decision in Sackett v. EPA 
(Sackett), 598 U.S. 651. The hearing will provide Members with 
the opportunity to receive testimony from witnesses who have 
experienced the regulatory impact of the conforming rule and 
its implementation. Members will receive testimony from 
witnesses representing the State of Alaska, the State of 
Colorado, the American Farm Bureau Association, and the 
National Association of Home Builders (NAHB).

      II. ``WATERS OF THE UNITED STATES'' AND THE CLEAN WATER ACT

    Congress enacted the 1972 amendments to the Federal Water 
Pollution Control Act, commonly referred to as the Clean Water 
Act (CWA), with the goal to ``restore and maintain the 
chemical, physical, and biological integrity of the Nation's 
waters.'' \1\ The CWA protects ``navigable waters,'' which is 
defined in the CWA as the ``waters of the United States, 
including the territorial seas.'' \2\
---------------------------------------------------------------------------
    \1\ CWA, Pub. L. No. 92-500, 86 Stat. 816.
    \2\ Id. at Sec. 502(7).
---------------------------------------------------------------------------
    However, the CWA does not further define the term ``waters 
of the United States'' (WOTUS). As such, the United States 
Environmental Protection Agency (EPA) and the United States 
Army Corps of Engineers (Corps) have attempted to define which 
waters are subject to Federal regulation under the CWA. Since 
the CWA grants authority to EPA and the Corps to implement the 
Act, EPA and the Corps have promulgated several sets of rules 
interpreting the agencies' jurisdiction over WOTUS and the 
corresponding scope of CWA authority.
    The definition of WOTUS governs the application of CWA 
programs--including tribal and state water quality 
certification programs, pollutant discharge permits, and oil 
spill prevention and planning programs. For example, Section 
303, which requires states to develop water quality standards 
for their waters such as Total Maximum Daily Load (TMDL), 
Section 311, which prohibits the discharge and mandates 
reporting of oil and other hazardous substances into WOTUS, and 
Section 401, which outlines state approval for Federal permits 
that would affect a WOTUS, are all dependent on the definition 
of WOTUS.\3\
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    \3\ Id. at Sec. Sec.  303, 311, 401.
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    In addition, the CWA prohibits the discharge of any 
pollutant by any person into a WOTUS, unless in compliance with 
one of the enumerated permitting provisions in the Act. The two 
main permitting authorities in the CWA are Section 402 (the 
National Pollutant Discharge Elimination System, or ``NPDES'') 
for discharges of pollutants from point sources, and Section 
404, for discharges of dredged or fill material.\4\ Both 
Sections 402 and 404 govern discharges into ``navigable 
waters,'' and thus are directly dependent on the definition of 
WOTUS.
---------------------------------------------------------------------------
    \4\ Id. at Sec. Sec. 402(b) and 404.
---------------------------------------------------------------------------
    EPA runs its own NPDES permitting program, and the CWA 
authorizes EPA to approve individual states and tribes to 
manage their own NPDES permitting programs, in keeping with the 
CWA's intent of Federal-state partnership.\5\ Nearly all states 
have assumed administration of their own NPDES permitting 
programs, with only three exceptions: Massachusetts, New 
Hampshire, and New Mexico.\6\
---------------------------------------------------------------------------
    \5\ Laura Gatz, Cong. Rsch. Serv. (RL30030), Clean Water Act: A 
Summary of the Law, (Updated Oct. 18, 2016), available at https://
www.crs.gov/Reports/RL30030 [hereinafter CRS Report RL30030].
    \6\ Id.
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    EPA and the Corps play complementary roles in implementing 
the Section 404 program, with the Corps in charge of issuing 
permits for discharge of dredged or fill material, using a set 
of environmental guidelines promulgated by EPA, in conjunction 
with the Corps, to evaluate permit applications.\7\ The Corps 
likewise administers the day-to-day program, including 
jurisdictional determinations (JD), which certify the presence 
or absence of waters subject to the CWA.\8\
---------------------------------------------------------------------------
    \7\ CWA, supra note 1, Sec. 404(b); see also CRS Report RL30030, 
supra note 5.
    \8\ EPA, Permit Program under CWA Section 404, available at https:/
/www.epa.gov/cwa-404/permit-program-under-cwa-section-404.
---------------------------------------------------------------------------
    Similar to the NPDES permitting process, EPA may also allow 
states and tribes to assume authority to grant or deny dredge 
and fill permits under Section 404, under the condition that 
states or tribes develop a wetlands permit program consistent 
with the CWA.\9\ Currently, two states are approved to manage 
their Section 404 program: Michigan and New Jersey.\10\ The 
status of the approval of a state-managed program for the State 
of Florida is under litigation.\11\
---------------------------------------------------------------------------
    \9\ EPA, State or Tribal Assumption of the CWA Section 404 Permit 
Program, available at https://www.epa.gov/cwa-404/state-or-tribal-
assumption-cwa-section-404-permit-program.
    \10\ Laura Gatz & Kate R. Bowers, Cong. Research Service (R46927), 
Redefining Waters of the United States (WOTUS): Recent Developments, 
(updated July 8, 2022) [hereinafter CRS Report R46927], available at 
https://www.crs.gov/reports/pdf/R46927/R46927.pdf.
    \11\ See EPA, State and Tribal Assumption of Section 404 of the 
Clean Water Act, available at https://www.epa.gov/cwa404g/us-
interactive-map-state-and-tribal-assumption-under-cwa-section-404; see 
also State of Florida, State 404 Program, available at https://
floridadep.gov/water/submerged-lands-environmental-resources-
coordination/content/state-404-program.
---------------------------------------------------------------------------
    The CWA also authorizes the Federal Government to levy 
penalties upon those deemed to have violated its provisions. 
Specifically, Section 309 of the CWA outlines the authority 
given to bring civil and/or criminal punishment against those 
who have violated the CWA.\12\ Civil and criminal penalties 
vary based on the type of infringement.\13\ For example, 
penalties for point source discharges into a WOTUS without, or 
in violation of, a permit can be one year and/or $2,500-$25,000 
per day for negligent violations, and three years and/or 
$5,000-$50,000 per day.\14\
---------------------------------------------------------------------------
    \12\ CWA, supra note 1, Sec. 309, 33 U.S.C. Sec. 1319.
    \13\ See id.; EPA, Criminal Provisions of Water Pollution, 
available at https://www.epa.gov/enforcement/criminal-provisions-water-
pollution.
    \14\ Id.
---------------------------------------------------------------------------

                       III. PREVIOUS WOTUS RULES

    The last three Presidential Administrations, through EPA 
and the Corps, have each published in the Federal Register 
regulatory changes to the definition of WOTUS.
    In 2015, the Obama Administration published a rule, known 
as the Clean Water Rule, which redefined WOTUS in the agencies' 
regulations for the first time since the 1980s.\15\ The 
regulatory changes to the definition of WOTUS incorporated in 
the 2015 Clean Water Rule allowed the Corps and EPA to utilize 
both the ``relatively permanent'' or ``significant nexus'' 
concepts, espoused in the 4-1-4 Supreme Court decision in 
Rapanos v. United States (Rapanos).\16\
---------------------------------------------------------------------------
    \15\ Clean Water Rule: Definition of ``Waters of the United 
States'' Final Rule, 80 Fed. Reg. 37054 (June 29, 2015).
    \16\ See id.; Rapanos v. United States, 547 U.S. 715 (2006). These 
concepts are discussed further below.
---------------------------------------------------------------------------
    Under the Trump Administration, EPA and the Corps rescinded 
the 2015 Clean Water Rule, recodifying guidance from 2008 that 
was in effect prior to the 2015 Rule.\17\ Then, in 2020, EPA 
and the Corps published in the Federal Register another 
definition of WOTUS in the Navigable Waters Protection 
Rule.\18\ The Navigable Waters Protection Rule was structured 
to focus the WOTUS definition primarily on relatively permanent 
bodies of water that provide surface flow to navigable waters 
or the territorial seas in a typical year, and moved away from 
the ``significant nexus'' test.\19\
---------------------------------------------------------------------------
    \17\ See Exec. Order No. 13778, (Feb. 28, 2017), available at 
https://www.govinfo.gov/content/pkg/DCPD-201700147/pdf/DCPD-
201700147.pdf; Definition of ``Waters of the United States''--
Recodification of Pre-Existing Rules, 84 Fed. Reg. 56626 (Oct. 22, 
2019).
    \18\ The Navigable Waters Protection Rule: Definition of ``Waters 
of the United States,'' 85 Fed. Reg. 22250 (Apr. 21, 2020).
    \19\ See CRS Report R46927, supra note 10.
---------------------------------------------------------------------------
    Shortly after taking office in January 2021, President 
Biden signed an Executive Order revoking President Trump's 
Executive Order, directing EPA and the Corps to revise and 
rescind the Clean Water Rule.\20\
---------------------------------------------------------------------------
    \20\ Exec. Order No. 13990, (Jan. 20, 2021), available at https://
www.govinfo.gov/content/pkg/FR-2021-01-25/pdf/2021-01765.pdf.
---------------------------------------------------------------------------
    On December 30, 2022, EPA and the Corps released the 
Revised Definition of the `Waters of the United States' Rule, 
which went into effect on March 20, 2023.\21\ The 2022 WOTUS 
definition was based largely upon the pre-2015 regulations, 
while again authorizing CWA jurisdiction under either the 
``relatively permanent waters'' or ``significant nexus'' test 
concepts.\22\
---------------------------------------------------------------------------
    \21\ Revised definition of ``Waters of the United States'' Final 
Rule, 88 Fed Reg. 3004 (Jan. 18, 2023).
    \22\ Id.
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                           IV. SACKETT v. EPA

    Since passage of the CWA, there has been a substantial 
amount of litigation in the Federal courts on scope of CWA 
jurisdiction, including numerous Supreme Court cases.
    In 2006, the Supreme Court issued a 4-1-4 opinion in 
Rapanos that did not produce a clear, legal standard on 
determining jurisdiction under the CWA.\23\ The Rapanos 
decision produced three distinct opinions on the appropriate 
scope of Federal authorities under the CWA. Justice Scalia's 
plurality opinion provided a ``relatively permanent/flowing 
waters'' test with ``continuous surface connection.'' \24\ 
Writing alone, Justice Kennedy proposed a ``significant nexus'' 
test for WOTUS, concluding that a case-by-case basis for 
determining navigable waters was appropriate.\25\ Justice 
Stevens' dissenting opinion advocated for maintenance of 
existing EPA and the Corps authority over waters and 
wetlands.\26\
---------------------------------------------------------------------------
    \23\ Rapanos v. United States, 547 U.S. 715 (2006).
    \24\ Id. at 739 and 742.
    \25\ Id. at 782 (Kennedy, J., concurring).
    \26\ See id. at 788 (Stevens, J., dissenting).
---------------------------------------------------------------------------
    In October 2022, the Court heard oral arguments in the 
latest case surrounding the definition of WOTUS under the CWA 
in Sackett. The petitioners in the Sackett case own a parcel of 
land in Idaho which sits across the street from an area of 
wetlands that drains into an unnamed tributary of a creek, 
which in turn flows into Priest Lake.\27\ The Sacketts' efforts 
to build on their parcel of land, around thirty feet from the 
area of wetlands, had been the subject of a decades-long 
dispute with EPA and the Corps regarding CWA jurisdiction and 
regulatory process.\28\ The Ninth Circuit Court, using the 
``significant nexus'' test, had upheld EPA's decision that the 
Sackett property was subject to Federal jurisdiction under the 
CWA.\29\
---------------------------------------------------------------------------
    \27\ Kate R. Bowers, Cong. Research Service Legal Sidebar 
(LSB10707), Supreme Court Revisits Scope of ``Waters of the United 
States'' (WOTUS) Under the Clean Water Act, (Mar. 11, 2022), available 
at https://www.crs.gov/reports/pdf/LSB10707/LSB10707.pdf.
    \28\ Id.
    \29\ Sackett v. EPA, 8 F. 4th 1075, 1091-1093 (9th Cir. 2021).
---------------------------------------------------------------------------
    In May 2023, the Court decided unanimously that the CWA did 
not apply to the Sackett property but differed on the reasoning 
5-4.\30\ The majority in Sackett rejected the ``significant 
nexus'' test penned by Justice Kennedy in Rapanos, instead 
ruling in favor of the ``relatively permanent'' test espoused 
in the Rapanos plurality opinion.\31\ While concurring in 
judgment, four justices disagreed with the majority's holding 
that wetlands are jurisdictional under the CWA only if there is 
a continuous surface connection to other covered jurisdictional 
waters.\32\
---------------------------------------------------------------------------
    \30\ Sackett v. EPA, 598 U.S. 651 (2023).
    \31\ Kate R. Bowers, Cong. Research Service Legal Sidebar 
(LSB10981), Supreme Court Narrows Federal Jurisdiction Under Clean 
Water Act, (June 21, 2023), available at https://www.crs.gov/Reports/
LSB10981.
    \32\ Id.
---------------------------------------------------------------------------

                 V. CONFORMING RULE AND IMPLEMENTATION

    While the Biden Administration's original rule, nor any 
other specific prior regulation was specifically brought before 
the Court, the majority opinion in Sackett rejected key 
jurisdictional interpretations such as ``significant nexus'' 
reflected in the Biden Administration's original rule.\33\ 
Immediately following the Sackett decision, the Corps paused 
processing of approved jurisdictional determinations.\34\
---------------------------------------------------------------------------
    \33\ See id.
    \34\ See E.A. Crunden, et. al., Wetlands approvals paused after 
Supreme Court decision, E&E News, (June 2, 2023), available at https://
subscriber.politicopro.com/article/eenews/2023/06/01/wetlands-
approvals-paused-after-supreme-court-decision-00099717; see also, 
Review of Fiscal Year 2024 Budget Request: Agency Perspectives (Part I) 
Hearing Before the Subcomm. on Water Resources and Environ. of the H. 
Comm. on Transp. and Infrastructure, 118th Cong., (June 22, 2023) 
(Statement of Hon. Michael L. Connor, in response to questioning by 
David Rouzer, Chairman, Subcomm. on Water Resources and Environ. of the 
H. Comm. on Transp. and Infrastructure).
---------------------------------------------------------------------------
    On August 29, 2023, EPA and the Corps issued a final rule 
titled ``Revised Definition of `Waters of the United States'; 
Conforming,'' amending the initial Biden Administration rule 
post-Sackett.\35\ Due to prior ongoing litigation over the 
initial January 2023 Biden Administration rule, the conforming 
rule went into place on September 8, 2023, in 23 states, the 
District of Columbia, and United States territories.\36\ In the 
other 27 states, EPA and the Corps are regulating WOTUS 
consistent with the pre-2015 regulatory regime.\37\
---------------------------------------------------------------------------
    \35\ Revised Definition of ``Waters of the United States''; 
Conforming, 88 Fed. Reg. 61964 (Sept. 8, 2023).
    \36\ Id.; see also EPA, Definition of ``Waters of the United 
States'': Rule Status and Litigation Update, available at https://
www.epa.gov/wotus/definition-waters-united-states-rule-status-and-
litigation-update.
    \37\ Id.
    
    
 LFigure 1 shows the operative definition of WOTUS currently in effect 
 in each state, with green representing states where the amended 2023 
rule is in effect and purple representing where the pre-2015 regime is 
                             in effect.\38\

     \\
---------------------------------------------------------------------------
    \38\ Id.
---------------------------------------------------------------------------
    On September 27, 2023, EPA and the Corps issued a joint 
coordination memorandum outlining how EPA and the Corps would 
coordinate on jurisdictional determinations, which was to be in 
effect for nine months.\39\ On June 25, 2024, the memorandum 
was extended an additional nine months.\40\ EPA and the Corps 
each maintain online resources with additional implementation 
materials.\41\
---------------------------------------------------------------------------
    \39\ EPA and Corps, Joint Coordination Memorandum to the Field 
between the U.S. Department of the Army, U.S. Army Corps of Engineers 
(Corps) and the U.S. Environmental Protection Agency (EPA), (Sept. 27, 
2023), available at https://www.epa.gov/system/files/documents/2023-10/
2023-joint-coordination-memo-amended-2023-rule_508c.pdf
    \40\ EPA and Corps, Extension of Joint Coordination Memoranda to 
the Field between the U.S. Department of the Army, U.S. Army Corps of 
Engineers and the U.S. Environmental Protection Agency (EPA), (June 25, 
2024), available at https://www.epa.gov/system/files/documents/2023-10/
2023-joint-coordination-memo-amended-2023-rule_508c.pdf.
    \41\ See Corps, Regulatory Program and Permits Juris Info, 
available at https://www.usace.army.mil/Missions/Civil-Works/
Regulatory-Program-and-Permits/juris_info/; see also EPA, Current 
Implementation of Waters of the United States, available at https://
www.epa.gov/wotus/current-implementation-waters-united-states.
---------------------------------------------------------------------------
    Some states and stakeholders have raised concerns with the 
pace of implementation of the conforming WOTUS rule, and 
whether EPA and the Corps are in compliance with the ruling in 
Sackett.\42\ Other stakeholders have expressed dissatisfaction 
with the Sackett ruling and called for states and the Biden 
Administration to evaluate other authorities to address the 
effects of Sackett.\43\
---------------------------------------------------------------------------
    \42\ See e.g. Sam Hess, States, Industry Launch Broad Legal Attack 
On EPA's Amended WOTUS Rule, InsideEPA, (Feb. 6, 2024), available at 
https://insideepa.com/daily-news/states-industry-launch-broad-legal-
attack-epa-s-amended-wotus-rule.
    \43\ See e.g. Sam Hess, Groups Urge Officials To Expand Wetlands 
Protections In Wake of Sackett, InsideEPA, (June 4, 2024), available at 
https://insideepa.com/daily-news/groups-urge-officials-expand-wetlands-
protections-wake-sackett.
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                             VI. WITNESSES

     LEmma Pokon, Commissioner, Alaska Department of 
Environmental Conservation
     LNicole Rowan, Director, Water Quality Control 
Division, Colorado Department of Public Health and Environment
     LCourtney Briggs, Chairman, Waters Advocacy 
Coalition, on behalf of the American Farm Bureau Federation
     LVincent E. Messerly, P.E., President and CEO, 
Stream and Wetlands Foundation, on behalf of the National 
Association of Home Builders


   WATERS OF THE UNITED STATES IMPLEMENTATION POST-SACKETT DECISION: 
                      EXPERIENCES AND PERSPECTIVES

                              ----------                              


                     WEDNESDAY, SEPTEMBER 11, 2024

                  House of Representatives,
   Subcommittee on Water Resources and Environment,
            Committee on Transportation and Infrastructure,
                                                    Washington, DC.
    The subcommittee met, pursuant to call, at 10 a.m., in room 
2167 Rayburn House Office Building, Hon. David Rouzer (Chairman 
of the subcommittee) presiding.
    Mr. Rouzer. The Subcommittee on Water Resources and 
Environment will come to order.
    Before we go further, I think it would be appropriate to 
take a quick moment of silence in memory of all those who 
passed and sacrificed on 9/11. If you will join me in a moment 
of silence.
    [Moment of silence observed.]
    Mr. Rouzer. I ask unanimous consent that the chairman be 
authorized to declare a recess at any time during today's 
hearing.
    Without objection, so ordered.
    I also ask unanimous consent that Members not on the 
subcommittee be permitted to sit with the subcommittee at 
today's hearing and ask questions.
    Without objection, so ordered.
    As a reminder, if Members wish to insert a document into 
the record, please also email it to DocumentsTI@mail.house.gov. 
Again, that is DocumentsTI@mail.house.gov.
    I now recognize myself for the purposes of an opening 
statement for 5 minutes.

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

    Mr. Rouzer. For more than half a century, the Clean Water 
Act has worked to improve the quality of our Nation's 
waterways. In our continued pursuit to protect and improve the 
quality of our Nation's waters, it is imperative that the 
regulatory framework under the Clean Water Act works as 
Congress intended it to work, allowing the demands of the 21st 
century to be met.
    To do so, we must have environmental protection and 
economic development--this critical balance that protects the 
environment without unnecessarily hampering our economy and 
private property rights. To achieve this, we must also balance 
the role of the Federal Government with that of the States and 
municipalities. The Clean Water Act was never envisioned for 
the Federal Government to have control over every ditch and mud 
puddle. It left room for States to protect their waters as they 
best see fit.
    So, consider this as well: Our competitors in China, as 
well as elsewhere in the world, they don't care about 
regulations or environmental permitting. When they want to 
build it, they just do it, with little, if any, regard to the 
environment.
    Now, while we do not want to adopt their mentality--nor 
would we--we should not put meaningless delays on critical 
infrastructure projects like manufacturing, housing, or very 
critical energy projects.
    As I have stated many times before, regulations should be 
simple and easy to follow. The benefit of that is, they should 
carry out the intent of the law in a clear and transparent 
manner, making them easy to enforce. There should be no 
subjectivity or wiggle room for any bureaucrat to substitute 
their own biases or interpretations.
    But, unfortunately, that has certainly not been the case 
with the Clean Water Act.
    Now, there is no greater example of bureaucratic overreach 
than the nightmare of complying with and understanding the 
definition of a water of the United States, or WOTUS, as we 
call it. This definition determines the scope of jurisdictional 
waters under the Clean Water Act, affecting water-quality 
certification programs, pollutant discharge permits, and 
oilspill prevention.
    Now, a good example of all this is in North Carolina. 
Pharmaceutical company Novo Nordisk, the worldwide leader in 
treating and preventing a wide range of diseases, including 
diabetes, announced a $4 billion investment for a site 
expansion, bringing more than 1,000 jobs to the State. In 
October, they requested a jurisdictional determination, or JD, 
as we call it, which never came. They were told to apply for a 
permit and to modify it once a JD was issued. They have since 
applied for a permit without determination. However, the permit 
review process can take more than 1 year.
    Novo Nordisk cannot conduct onsite avoidance and 
minimization analysis before they know what parcel of property 
must be avoided. Nor can they conduct an offsite alternatives 
analysis without a clear concept of how their site works 
against other sites that may or may not have similar issues. 
And this is just one example of many instances across the 
country where economic investment and job creation--and, in 
this case, public health as well--are all stalled due to this 
vague process.
    The Supreme Court's ruling in Sackett v. EPA last year 
provided a decisive win for America's farmers, small 
businesses, and property owners. Yet, despite the Court's 
clarity, there remains a distinct incongruence between the 
ruling and the latest definition of a WOTUS from this 
administration, which has led to a new round of legal 
challenges and additional confusion.
    When Assistant Secretary of the Army for Civil Works 
Michael Connor testified before the subcommittee last December, 
he reported a backlog of more than 4,000 jurisdictional 
determinations that need to be made. While the administration 
claims some progress has been made in approving these, the 
inconsistent and piecemeal approach it is taking in 
implementing its WOTUS rule is causing serious delays on a 
variety of different projects around the Nation.
    Sackett struck down the ``significant nexus'' test and held 
that a WOTUS must have a continuous surface connection to 
traditional navigable waters. That ruling was over 1 year ago, 
and we just passed the 1-year mark since the administration 
issued its revised rule.
    Farmers, homebuilders, businesses, manufacturers, and many 
other hard-working Americans rely on the Corps and EPA for 
predictable, workable, and stable WOTUS regulations. The 
administration has not yet delivered.
    So, in summation, the administration's implementation is 
not in accordance with the Sackett ruling generally, nor is it 
consistent project to project where JDs have been issued. So, I 
remain concerned about the lack of transparency and lack of 
consistency with which this revised definition has been 
implemented.
    We are all still waiting for clear and consistent guidance 
on which everyone can rely. The decision to approach WOTUS on a 
site-specific basis, without clear training and universal 
application, has served only to muddy the waters--no pun 
intended--of a very clear and straightforward Supreme Court 
ruling.
    So, I look forward to hearing from our witnesses today 
about their experiences and challenges with WOTUS 
implementation since the Sackett decision and what 
recommendations they have for us in Congress so we can work to 
provide surety to Americans who rely on clear implementation of 
this important rule.
    [Mr. Rouzer's prepared statement follows:]

                                 
 Prepared Statement of Hon. David Rouzer, a Representative in Congress 
 from the State of North Carolina, and Chairman, Subcommittee on Water 
                       Resources and Environment
    For more than half a century, the Clean Water Act has worked to 
improve the quality of our nation's waterways. In our continued pursuit 
to protect and improve the quality of our nation's waters, it is 
imperative that the regulatory framework under the Clean Water Act 
works as Congress intended it to work, allowing the demands of the 21st 
century to be met.
    To do so we must have environmental protection and economic 
development--this critical balance that protects the environment 
without unnecessarily hampering our economy and private property 
rights. To achieve this, we must also balance the role of the federal 
government with that of the states and municipalities. The Clean Water 
Act was never envisioned for the federal government to have control 
over every ditch and mud puddle, and left room for states to protect 
their waters as they best see fit.
    Our competitors in China, as well as elsewhere in the world, do not 
care about regulations or environmental permitting. When they want to 
build, they just do it, with little if any regard to the environment. 
While we do not want to adopt their mentality--nor would we--we should 
not put meaningless delays on critical infrastructure projects like 
manufacturing, housing, or energy projects.
    As I have stated many times before, regulations should be simple 
and easy to follow. They should carry out the intent of the law in a 
clear and transparent manner, making them easy to enforce. There should 
be no subjectivity or wiggle room for any bureaucrat to substitute 
their own biases or interpretations. Unfortunately, that's not the case 
with the Clean Water Act.
    There is no greater example of bureaucratic overreach than the 
nightmare of complying with and understanding the definition of a 
``water of the United States'' or ``WOTUS.'' This definition determines 
the scope of jurisdictional waters under the Clean Water Act, affecting 
water quality certification programs, pollutant discharge permits, and 
oil spill prevention.
    In North Carolina, pharmaceutical company Novo Nordisk, a leader in 
treating and preventing a wide range of diseases including diabetes, 
announced a four-billion-dollar investment for a site expansion, 
bringing over one thousand jobs to the state. In October, they 
requested a jurisdictional determination, or JD, which never came. They 
were told to apply for a permit and to modify it once a JD was issued. 
They have since applied for a permit without determination. However, 
the permit review process can take over a year.
    Novo Nordisk cannot conduct on-site avoidance and minimization 
analysis before they know what parcel of property must be avoided. Nor 
can they conduct an off-site alternatives analysis without a clear 
concept of how their site works against other sites that may or may not 
have similar issues. This is just one example of many instances across 
the country where economic investment and job creation--and in this 
case, public health as well--are stalled due to this vague process.
    The Supreme Court's ruling in Sackett vs. EPA last year provided a 
decisive win for America's farmers, small businesses, and property 
owners. Yet, despite the Court's clarity, there remains a distinct 
incongruence between the ruling and the latest definition of a WOTUS 
from this administration, which has led to a new round of legal 
challenges and additional confusion.
    When Assistant Secretary of the Army for Civil Works Michael Connor 
testified before the Subcommittee last December, he reported a backlog 
of more than 4,000 jurisdictional determinations that need to be made. 
While the Administration claims some progress has been made in 
approving these, the inconsistent and piecemeal approach it is taking 
in implementing its WOTUS rule is causing serious delays on a variety 
of different projects across the nation.
    Sackett struck down the ``significant nexus'' test and held that a 
WOTUS must have a continuous surface connection to traditional 
navigable waters. That ruling was over a year ago, and we just passed 
the one year mark since the Administration issued its revised rule. 
Farmers, home builders, businesses, manufacturers, and many other hard-
working Americans rely on the Corps and EPA for predictable, workable, 
and stable WOTUS regulations. The Administration has not yet delivered.
    In summation, the Administration's implementation is not in 
accordance with the Sackett ruling generally; nor is it consistent 
project to project where JDs have been issued. I remain concerned about 
the lack of transparency and lack of consistency with which this 
revised definition has been implemented. We are all still waiting for 
clear and consistent guidance on which everyone can rely. The decision 
to approach WOTUS on a site-specific basis without clear training and 
universal application has served only to muddy the waters of a very 
clear and straightforward Supreme Court ruling.
    I look forward to hearing from our witnesses today about their 
experiences and challenges with WOTUS implementation since the Sackett 
decision and what recommendations they have for us in Congress so we 
can work to provide surety to Americans who rely on clear 
implementation of WOTUS.

    Mr. Rouzer. I now recognize Ranking Member Napolitano for 5 
minutes for an opening statement.

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

    Mrs. Napolitano. Thank you, Mr. Chairman, for yielding that 
time to me.
    For the past 25\1/2\ years, I have made protection and 
preservation of water a primary focus of my time in Congress. 
In the arid West, where annual droughts have become an 
unfortunate consequence of a warming climate, I have worked to 
make our communities more resilient to climate change, such as 
ensuring my communities are prepared for their current and 
future water needs. I have worked with local officials to 
promote the conservation, recycling, and reuse of every drop of 
water available.
    Knowing of these ongoing challenges that may soon face 
every community in the United States, I grow frustrated with 
the heated and often misguided rhetoric on the scope of waters 
protected by the Clean Water Act. In my view, we get lost on 
questions of who is best suited to protect our water resources, 
rather than thinking about the importance of rivers, streams, 
lakes, and wetlands for current and future needs.
    Mr. Chairman, clean water was not always a partisan issue, 
and no issue has more support among American families than the 
protection of the Nation's waters. Yet, in recent years, this 
issue of comprehensive Clean Water Act protections has become 
so politicized that it has become increasingly difficult to 
find any commonalities.
    For this, I cite the example, this issue is prominently 
highlighted in the extreme ``Project 2025'' manifesto. It has 
been the focus of two failed Congressional Review Act efforts 
to overturn vital clean water protections. And, recently, 
decades-old water protections have fallen to a Supreme Court 
that, time and again, substitutes its own conservative 
philosophies for the established legal precedent or clear 
statements of congressional intent.
    In the aftermath, we are left with a Nation less prepared 
to protect its precious water resources and less capable of 
ensuring the long-term health and resiliency of our 
communities, our neighbors, and our future generations.
    History has shown that the current State-by-State approach 
of protecting rivers, streams, and wetlands is likely to fail, 
as it did before the enactment of the Clean Water Act.
    Without minimum levels of protection, States will be 
negatively impacted by pollution from upstream sources if 
neighboring States choose not to put the same priority on 
protecting water resources.
    Without minimum levels of protection, farmers, businesses, 
and communities may no longer rely on sufficient, safe, and 
sustainable supplies of water to meet our quality-of-life 
needs, our economic and agricultural needs, and our day-to-day 
survival, especially in arid regions of the West.
    Without minimum levels of protection, American families may 
be forced to pay more for safe and reliable resources of water 
for their homes--if such resources even remain available.
    Without minimum standards of protection, businesses will 
face different requirements and standards in every State or 
community, likely increasing the complexity and cost of doing 
business, which will, again, result in higher prices for 
American families.
    Mr. Chairman, in my remaining time in Congress, I remain 
committed to protecting clean water for more people, not less. 
I believe the Supreme Court purposely chose to substitute its 
own philosophy over decades-old, legally grounded efforts to 
protect water quality.
    That is why I joined with Ranking Member Larsen, 
Congressman Beyer, and Congresswoman Stansbury in introducing 
the Clean Water Act of 2023. I believe this bill will restore 
the minimum levels of protections struck down by the 
conservative Court and can put back into place the predictable 
Federal-State partnership which protected our rivers, streams, 
and wetlands for over five decades, all while providing 
predictability and certainty to American businesses.
    To me, the answer is clear: We should recognize the 
familiarity and workability of the historic Clean Water Act and 
get on with the preservation of the health of our economy as 
well as that of our communities, of our environment, and our 
water-dependent futures.
    Mr. Chairman, I yield back the balance of my time.
    [Mrs. Napolitano's prepared statement follows:]

                                 
  Prepared Statement of Hon. Grace F. Napolitano, a Representative in 
Congress from the State of California, and Ranking Member, Subcommittee 
                   on Water Resources and Environment
    Thank you, Mr. Chairman, for yielding me this time.
    For the past 26 years, I have made the protection and preservation 
of water a primary focus of my time in Congress.
    In the arid west, where annual droughts have become an unfortunate 
consequence of a warming planet, I have worked to make our communities 
more resilient to climate change, such as ensuring my communities are 
prepared for their current and future water needs.
    I have worked with local officials to promote the conservation, 
recycling, and reuse of every drop of water available.
    Knowing of these ongoing water challenges that may soon face every 
community, I grow frustrated with the heated and often-misguided 
rhetoric on the scope of waters protected by the Clean Water Act.
    In my view, we get lost on questions of who is best suited to 
protect our water resources, rather than talking about the importance 
of rivers, streams, lakes and wetlands for current and future needs.
    Mr. Chairman, clean water was not always a partisan issue, and no 
issue has more support among American families than the protection of 
our nation's waters.
    Yet, in recent years, the issue of comprehensive Clean Water Act 
protections has become so politicized that it has become increasingly 
difficult to find any commonalities.
    For example, this issue is prominently highlighted in the extreme 
Project 2025 manifesto.
    It has been the focus of two failed Congressional Review Act 
efforts to overturn vital clean water protections.
    And, recently, decades-old water protections have fallen to a 
Supreme Court that, time-and-again, substitutes its own conservative 
philosophies for established legal precedent or clear statements of 
Congressional intent.
    In the aftermath, we are left with a nation less prepared to 
protect its precious water resources and less capable of ensuring the 
long-term health and resiliency of our communities, our neighbors and 
future generations.
    Mr. Chairman, history has shown that the current, state-by-state 
approach to protecting rivers, streams and wetlands is likely to fail 
as it did before enactment of the Clean Water Act.
    Without minimum levels of protection, states will be negatively 
impacted by pollution from upstream sources if neighboring states 
choose not to put the same priority on protecting water resources.
    Without minimum levels of protection, farmers, businesses and 
communities may no longer rely on sufficient, safe and sustainable 
supplies of water to meet our quality-of-life needs, our economic and 
agricultural needs and our day-to-day survival, especially in the arid 
regions of the country.
    Without minimum levels of protection, American families may be 
forced to pay more for safe and reliable sources of drinking water for 
their homes, if such sources even remain available.
    Without minimum standards of protection, businesses will face 
differing requirements and standards in every state or community, 
likely increasing the complexity and cost of doing business--which 
will, again, result in higher prices for American families.
    Mr. Chairman, in my remaining time Congress, I remain committed to 
protecting clean water for more people, not less.
    I believe the Supreme Court purposefully chose to substitute its 
own philosophy over decades-old, legally grounded efforts to protect 
water quality.
    That is why I joined with Ranking Member Larsen, Congressman Beyer, 
and Congresswoman Stansbury, in introducing the Clean Water Act of 
2023.
    I believe this bill will restore the minimum levels of protections 
struck down by the conservative Supreme Court and put back into place 
the successful and predictable federal-state partnership which 
protected our rivers, streams, and wetlands for over five decades--all 
while providing predictability and certainty to American businesses.
    To me, the answer is clear. We should recognize the familiarity and 
workability of the historic Clean Water Act and get on with the 
preservation of the health of our economy as well as our communities, 
our environment and our water-dependent futures.
    I yield back the balance of my time.

    Mr. Rouzer. The gentlelady yields back.
    I now recognize Ranking Member Larsen for up to 5 minutes.

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

    Mr. Larsen of Washington. Thank you, Mr. Chair and Ranking 
Member Napolitano, for this hearing and update on the waters of 
the U.S. and the Clean Water Act.
    My home State of Washington is defined by its clean water, 
from Puget Sound to the hundreds of lakes and thousands of 
miles of rivers and streams. Washingtonians know that 
protecting these rivers, streams, and wetlands takes work and 
that the health of our water bodies are intertwined.
    Our waters and water-related economy depend on the historic 
protections of the Clean Water Act and its pollution-prevention 
programs. It is more effective and less costly to prevent 
pollution than to clean up pollution. This is true in 
Washington State; it is true across the country.
    When Congress passed the Clean Water Act over 50 years ago, 
Members recognized the effectiveness and importance of 
comprehensive pollution-prevention measures--stopping pollution 
before it happens rather than simply cleaning it up. The Clean 
Water Act was enacted on an overwhelming and bipartisan basis.
    Before this law, rivers and lakes served as little more 
than open sewers. Lake Erie was pronounced ``dead,'' and Ohio's 
Cuyahoga River literally caught on fire.
    Thanks to the Clean Water Act, the Cascade River in my 
district was recently designated as an Outstanding Resource 
Water by the State of Washington, which now protects the river 
from any future activities or development that would degrade 
its water quality.
    In passing the Clean Water Act, Congress specifically noted 
that a State-by-State, do-it-alone approach was, quote, 
``inadequate in every vital aspect,'' end quote, and left 
waters severely polluted and expensive to restore.
    For decades, then, Republicans and Democrats shared these 
bipartisan principles to defend clean water, maintain a strong 
Federal-State partnership to protect waters, stop pollution 
from entering the system in the first place, and support a 
robust Federal floor of protections while allowing States to do 
more, but not less.
    After the Sackett decision, the robust Federal protections 
for our Nation's waters have been eliminated for more than 50 
percent of wetlands and up to 70 percent of streams.
    History has shown that a lack of strong Federal water-
quality protections makes it difficult and expensive for States 
to protect their waters if neighboring States adopt a lesser 
standard. States are now faced with a decision on how to handle 
pollution of the countless nonnavigable streams, lakes, and 
wetlands once protected by the Clean Water Act.
    Some States will meet this challenge by establishing new 
State-level water-quality standards for unprotected wetlands 
and streams, as the State of Colorado has done. Other States 
will choose to do nothing, or worse, pull back on State-level 
protections, like the State of North Carolina, leaving critical 
waters completely unprotected.
    Without uniform national protections, downstream States 
will be negatively impacted by pollution from upstream sources 
if neighboring States choose not to pass new protections.
    Last Congress, though, we did pass the Bipartisan 
Infrastructure Law, affirming our commitment to improving 
water-quality infrastructure. The BIL included significant 
investments in water infrastructure, providing $13.8 billion in 
Federal dollars for upgrading wastewater systems, preventing 
pollution discharges, and supporting restoration programs in 
places like the Puget Sound.
    These investments are critical, providing a lifeline to 
communities across the country struggling to maintain water 
quality. Such a large Federal investment was a downpayment to 
address the backlog of water infrastructure needs across the 
country.
    The Sackett decision reduces the effectiveness of these 
investments and reduces the Federal role in the successful 
partnership that has been the Clean Water Act. If we are to 
maintain the same historic protections, States will have to 
step up and spend more resources protecting water quality.
    Unfortunately, States will be doing so from scratch, 
without the decades of experience from the EPA and the Army 
Corps of Engineers. In this post-Sackett world, we must find 
ways to leverage Federal experience in assisting States that 
are stepping up to maintain water-quality protections.
    But Congress can do its job as well and legislate a 
solution. Passing the Clean Water Act of 2023, a bill I 
introduced in partnership with Ranking Member Napolitano, would 
restore the historic, bipartisan protections that the Sackett 
decision removed.
    So, I want to thank the witnesses for joining us today, and 
I look forward to your testimony.
    With that, I yield back.
    [Mr. Larsen of Washington's prepared statement follows:]

                                 
 Prepared Statement of Hon. Rick Larsen, a Representative in Congress 
    from the State of Washington, and Ranking Member, Committee on 
                   Transportation and Infrastructure
    My home state of Washington is defined by its clean water, from 
Puget Sound to the hundreds of lakes and thousands of miles of rivers 
and streams.
    Washingtonians know that protecting these rivers, streams and 
wetlands takes work, and that the health of our water bodies are 
intertwined.
    Our waters and our water-related economy depend on the historic 
protections of the Clean Water Act and its pollution-prevention 
programs.
    It is more effective and less costly to prevent pollution than to 
clean up pollution. This is true in Washington state, and it is true 
across the nation.
    When Congress passed the Clean Water Act over 50 years ago, Members 
recognized the effectiveness and importance of comprehensive pollution 
prevention measures--stopping pollution before it happens rather than 
simply cleaning it up.
    The Clean Water Act was enacted on an overwhelming and bipartisan 
basis. Before this law, rivers and lakes served as little more than 
open sewers--Lake Erie was pronounced ``dead,'' and Ohio's Cuyahoga 
River literally caught on fire.
    Thanks to the Clean Water Act, the Cascade River in my district was 
recently designated as an Outstanding Resource Water by the State of 
Washington, which now protects the river from any future activities or 
development that would degrade water quality.
    In passing the CWA, Congress specifically noted that a state-by-
state, do-it-alone approach was ``inadequate in every vital aspect'' 
and left waters severely polluted and expensive to restore.
    For decades, Republicans and Democrats shared these bipartisan 
principles to defend clean water: maintain a strong federal-state 
partnership to protect our waters; stop pollution from entering the 
system in the first place; and support a robust federal floor of 
protections while allowing states to do more, but not less.
    After the Sackett decision, the robust federal protections for our 
nation's waters have been eliminated for more than 50 percent of 
wetlands and up to 70 percent of streams.
    History has shown that a lack of strong federal water quality 
protections makes it difficult and expensive for states to protect 
their waters if neighboring states adopt a lesser standard.
    States are now faced with a decision on how to handle pollution of 
the countless, non-navigable streams, lakes and wetlands once protected 
by the Clean Water Act.
    Some states will meet this challenge by establishing new state-
level water quality standards for unprotected wetlands and streams, as 
the State of Colorado has done.
    Other states will choose to do nothing, or worse, pull back on 
state-level protections, like the State of North Carolina, leaving 
critical waters completely unprotected.
    Without uniform national protections, downstream states will be 
negatively impacted by pollution from upstream sources if neighboring 
states choose not to pass new protections.
    Last Congress, we passed the Bipartisan Infrastructure Law, 
affirming our commitment to improving infrastructure. The BIL included 
significant investments in water infrastructure--providing $13.8 
billion in federal dollars for upgrading wastewater systems, preventing 
pollution discharges and supporting restoration programs in places like 
the Puget Sound.
    These investments are critical, providing a lifeline to communities 
across the country struggling to maintain water quality.
    Such a large federal investment was a downpayment to address the 
backlog of water infrastructure needs across the country.
    The Sackett decision reduces the effectiveness of these investments 
and reduces the federal role in the successful partnership that has 
been the Clean Water Act. If we are to maintain the same historic 
protections, states will have to step up and spend more resources on 
protecting water quality.
    Unfortunately, states will be doing so from scratch, without the 
decades of experience of EPA and the Army Corps of Engineers.
    In this post-Sackett world, we must find ways to leverage federal 
experience in assisting states that are stepping up to maintain water 
quality protections.
    Congress can do its job, as well, and legislate a solution. Passing 
the Clean Water Act of 2023, a bill I introduced in partnership with 
Ranking Member Napolitano, would restore the historic, bipartisan 
protections that the Sackett decision removed.
    Thank you to the witnesses for joining us today, and I look forward 
to your testimony.

    Mr. Rouzer. The gentleman yields back.
    I ask unanimous consent to enter into the record a series 
of letters regarding WOTUS implementation from the Associated 
Builders and Contractors, dated September 11, 2024; Idaho 
Mining Association, dated September 9, 2024; Associated General 
Contractors of America, dated September 9, 2024; National Parks 
Conservation Association, September 10, 2024; National Stone, 
Sand, and Gravel Association, dated September 11, 2024; 
National Mining Association, dated September 11, 2024; State of 
Alaska Department of Transportation and Public Facilities, 
dated September 6, 2024; and, finally, from 24 State attorneys 
general, led by West Virginia, dated September 6, 2024.
    Without objection, so ordered.
    [Hon. Rouzer's submissions for the record are on pages 59-
72.]
    Mr. Rouzer. I would now like to welcome our witnesses and 
thank them for being here today.
    First, we have Emma Pokon--or is it ``Pokon''?
    Ms. Pokon. Either is just fine.
    Mr. Rouzer. Well, which do you prefer, ma'am?
    Ms. Pokon. I think I say it ``Pokon.''
    Mr. Rouzer. ``Pokon''--commissioner of the Alaska 
Department of Environmental Conservation; Nicole Rowan, 
director of the Water Quality Control Division at the Colorado 
Department of Public Health and Environment; Ms. Courtney 
Briggs, chairman of the Waters Advocacy Coalition, on behalf of 
the American Farm Bureau Federation; and Vince Messerly, 
president of the Stream and Wetlands Foundation, on behalf of 
the National Association of Home Builders.
    So, briefly, I would like to take a moment to explain our 
lighting system to our witnesses. Fairly self-explanatory. 
Green means go. Yellow means you have about 45 seconds to 1 
minute left. And red means, of course, conclude your remarks as 
quickly as you can.
    So, with that--oh, I also ask unanimous consent that the 
witnesses' full statements be included in the record.
    Without objection, so ordered.
    I ask unanimous consent that the record of today's hearing 
remain open until such time as our witnesses have provided 
answers to any questions that may be submitted to them in 
writing.
    Without objection, so ordered.
    I also ask unanimous consent that the record remain open 
for 15 days for any additional comments and information 
submitted by Members or witnesses to be included in the record 
of today's hearing.
    Without objection, so ordered.
    As your written testimony has been made part of the record, 
the subcommittee asks you to limit your oral remarks to 5 
minutes.
    And, with that, Commissioner Pokon, you are recognized for 
5 minutes.

  TESTIMONY OF EMMA POKON, COMMISSIONER, ALASKA DEPARTMENT OF 
   ENVIRONMENTAL CONSERVATION; NICOLE ROWAN, DIRECTOR, WATER 
QUALITY CONTROL DIVISION, COLORADO DEPARTMENT OF PUBLIC HEALTH 
  AND ENVIRONMENT; COURTNEY BRIGGS, CHAIRMAN, WATERS ADVOCACY 
 COALITION, ON BEHALF OF THE AMERICAN FARM BUREAU FEDERATION; 
    AND VINCENT E. MESSERLY, PRESIDENT, STREAM AND WETLANDS 
   FOUNDATION, ON BEHALF OF THE NATIONAL ASSOCIATION OF HOME 
                            BUILDERS

  TESTIMONY OF EMMA POKON, COMMISSIONER, ALASKA DEPARTMENT OF 
                   ENVIRONMENTAL CONSERVATION

    Ms. Pokon. Thank you, Chairman Rouzer, Ranking Member 
Napolitano, Ranking Member Larsen, and members of the 
subcommittee. I appreciate the opportunity to testify today.
    My name is Emma Pokon. I serve as the commissioner of the 
Alaska Department of Environmental Conservation.
    To start today, I want to emphasize the importance of this 
topic to the State of Alaska. Our State has 900,000 miles of 
navigable rivers and streams, 22,000 square miles of lakes, 
27,000 miles of coastline, and more wetlands than every other 
State in the Union combined. At about 130 million acres, it is 
estimated around 63 percent of the wetlands in the Nation. And 
all of that is before you get to glaciers and groundwater.
    If you want to build a home, a road, a mine, or really 
anything in the State, you will likely impact a water of some 
sort. And where there is an impact to a water body, Alaska DEC 
is going to be working to ensure that impact doesn't compromise 
the water-quality standards we have set to protect human health 
and the environment.
    Under the Federal Clean Water Act, Alaska DEC implements 
the section 402 discharge permitting program, evaluates section 
404 dredge and fill permits for section 401 certification, and 
assesses water quality throughout the State to ensure water 
bodies that fail to meet State water-quality standards have 
plans developed to address that impairment.
    Importantly, I also have broad authority under State 
statute to establish and protect water-purity standards. If you 
want to discharge to water in the State of Alaska, you need 
authorization from my team regardless of whether it is going 
into a traditional navigable water body, a tributary, an 
adjacent wetland, an isolated surface water, or groundwater.
    In fact, in all 50 States, State agencies work diligently 
to do their part to protect waters in their jurisdictions. Many 
of these States, Alaska among them, apply the same water-
quality standards to all waters within their boundaries.
    You can see, then, a lack of Federal regulation does not 
necessarily mean no regulation, no Government oversight at all. 
If EPA doesn't control an activity affecting water, State law 
and policymakers can make the judgment call about what level of 
protection is appropriate for their residents.
    And, frankly, we are better suited to make those judgment 
calls. We have better visibility on the totality of 
circumstances for our residents. We are also more accessible to 
our residents, so there are better opportunities for the 
feedback loops that make democracy work.
    But the Federal agencies do seem reluctant to trust States. 
Nationally, more than 1 year after Sackett was decided and the 
agencies published a revised rule, EPA and the Corps have still 
failed to address the ``indistinguishable'' concept and the 
vagueness concerns articulated by the Court.
    Instead, we have seen worrying ``Chicken Little'' rhetoric 
from the administration. They have characterized the decision 
as a terrible threat to water. The White House itself has gone 
as far as declaring that the Court decided the case 
incorrectly, essentially challenging fundamental constitutional 
checks and balances.
    Rather than developing a standard that can be understood 
and implemented by the regulated community and State partners, 
the agencies appear intent on leveraging uncertainty and 
threats of heavy civil and criminal liability to effectively 
maintain sweeping control across the country.
    If major elements of the Supreme Court guidance go 
unaddressed, we can anticipate continuing conflict and pendulum 
swings in implementation. That is not good for anyone.
    Without stability, States don't have certainty around what 
resources to consider committing to new or existing programs 
that regulate State-only waters. And the public we serve will 
continue to either go through unnecessary and expensive 
permitting exercises, getting approvals from the incorrect 
authority, or, as the Court feared, choosing to forgo 
productive activities on their own lands entirely.
    In closing, I would first remind everyone that States 
exist, we are here, and we are ready to do our jobs to protect 
State waters at the level deemed appropriate by our elected 
legislatures and chief executives.
    And, second, I would posit that the field of water-quality 
regulation would be best served by accepting the totality of 
the guidance provided by the United States Supreme Court and 
working with States to achieve our common objectives of a 
predictable, respectful, and rule-of-law-driven regulatory 
framework.
    Thank you.
    [Ms. Pokon's prepared statement follows:]

                                 
 Prepared Statement of Emma Pokon, Commissioner, Alaska Department of 
                       Environmental Conservation
    Dear Chairman Graves, Chairman Rouzer, Ranking Member Larsen, and 
Ranking Member Napolitano:
    Thank you for the invitation to provide testimony on the 
implementation of the Clean Water Act, specifically the scope of 
statute as defined by the term ``Waters of the United States'' (WOTUS), 
following the United States Supreme Court decision in Sackett.
    This topic is important to the State of Alaska. We have roughly 
900,000 miles of navigable rivers and streams; 22,000 square miles of 
lakes; 27,000 miles of coastline; and, at about 130 million acres, more 
wetlands than every other state in the union combined. And all of that 
is before considering glaciers and groundwater. Anyone looking to build 
a home, a road, or a mine in the state will likely impact a water of 
some sort.
    Alaska's Department of Environmental Conservation (DEC) regulates 
pollution across media--from soil contamination to air emissions to 
water discharges. Under the federal Clean Water Act, DEC implements the 
Section 402 discharge permitting program, evaluates Section 404 dredge 
and fill permits for Section 401 certification, and assesses water 
quality throughout the state to ensure water bodies that fail to meet 
state water quality standards have plans developed to address that 
impairment.
    Importantly, DEC also possesses broad authority under state statute 
to establish and protect water purity standards. Anyone looking to 
discharge wastewater in the state of Alaska needs authorization from 
DEC--regardless of whether the discharge goes to a traditional 
navigable water body, a tributary, an adjacent wetland, an isolated 
surface water, or groundwater. In fact, in all 50 states, state 
agencies work diligently to do their part to protect waters in their 
jurisdictions. Many of these states, Alaska among them, generally apply 
the same water quality standards to all waters within their boundaries 
regardless of whether they are under federal jurisdiction.
    Thus, a reduced scope of federal authority does not necessarily 
mean activity will be free of regulatory oversight. State policymakers 
can make judgment calls about what level of protection is appropriate 
for their residents. And states are often better situated to make those 
judgment calls. State officials have more complete visibility on 
circumstances for residents, are more accessible, and may have more 
nuanced appreciation for unique ecosystem issues and concerns.
    To illustrate, many factors make Alaska's circumstances unique 
compared to other states and regions of the country. There's the sheer 
geographic size and volume of water bodies and wetlands. And, as a 
younger state, Alaska remains largely undeveloped in terms of 
infrastructure and resource extraction. Our state is also in the 
enviable position of having had landscape level planning to establish 
state and federal conservation units that will remain undeveloped even 
as other resource rich areas--often on federal, State, or Alaska Native 
Corporation owned lands--could progress to production. In this context, 
Alaskan lawmakers and elected officials might make different judgment 
calls than the federal government or more industrialized and developed 
states.
    But federal agencies are reluctant to trust states; instead, they 
continue to grope for complete authority over all waters. Nationally, 
more than a year after Sackett was decided and the agencies published a 
revised rule, EPA and the Corps have still failed to address the 
``indistinguishable'' concept and the vagueness concerns articulated by 
the Supreme Court. Rather than developing a standard that can be 
understood and implemented by the regulated community and state 
partners, the agencies appear intent on leveraging uncertainty and the 
risk of civil and criminal liability to effectively maintain sweeping 
authority in their own hands.
    As long as major elements of the Supreme Court guidance go 
unaddressed, conflict and pendulum swings in implementation will likely 
continue. Without stability, states will struggle to appropriately 
adjust existing programs. Nor will states have the time to seek 
additional authorities from their legislatures. And the public we serve 
will continue either going through unnecessary and expensive permitting 
exercises, getting approvals from the incorrect authority, or, as the 
Court feared, choosing to forego productive activities on their land.
    Federal policymakers must remember that states exist. We're here, 
and we're ready to do our jobs to protect state waters. Moreover, 
working with states to achieve a stable regulatory framework would best 
serve the field of water quality regulation.

    Mr. Rouzer. Ms. Rowan, you are recognized for 5 minutes.

  TESTIMONY OF NICOLE ROWAN, DIRECTOR, WATER QUALITY CONTROL 
 DIVISION, COLORADO DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT

    Ms. Rowan. Thank you, Chairman Rouzer, Ranking Member 
Napolitano, Ranking Member Larsen, and distinguished 
subcommittee members for the opportunity to testify before you 
today.
    My name is Nicole Rowan, and I serve as the director of the 
Colorado Department of Public Health and Environment's Water 
Quality Control Division. Since 1975, our division has 
implemented the point source discharge permitting program under 
section 402 of the Clean Water Act.
    I am here to discuss the implications of the Sackett v. EPA 
decision for the State of Colorado.
    The Sackett decision significantly impacted the arid and 
semi-arid States in the West. In Colorado, for example, 
approximately half of our streams are not relatively permanent, 
and around half of our wetlands do not meet the Supreme Court's 
``continuous surface connection'' test.
    However, these wetlands and seasonal streams are vital to 
our environment and economy. They play a crucial role in flood 
and wildfire mitigation, water filtration, and habitat for 
wildlife. Natural systems act as a first defense against 
pollution, filtering out contaminants before reaching larger 
water bodies. They also support key sectors of our economy: 
agriculture, recreation, and tourism.
    As a headwater State, our actions to protect water quality 
have far-reaching implications for our downstream neighbors.
    The Sackett decision had immediate implication for Colorado 
businesses. Some homebuilders and contractors that no longer 
needed permits from the Corps put their permits on hold because 
the State, lacking a dredge and fill permitting program, could 
not authorize these activities. However, placing fill material 
in Colorado waters was not allowed under State statute without 
a permit.
    Colorado sought to remedy this challenge by issuing an 
enforcement discretion policy shortly after the Sackett 
decision. This informed the regulated community that the State 
would not penalize those without a permit who notified us of 
their projects and implemented best management practices from 
the Corps' nationwide permits.
    Some larger projects, however, did not qualify for 
discretion under the policy. Colorado had to act quickly to 
allow these projects to proceed.
    Shortly after the Supreme Court heard oral argument for 
Sackett, Colorado Governor Jared Polis convened a task force to 
examine options for a State dredge and fill program. The task 
force had representatives from agriculture, water supply, 
construction, mining, oil and gas development, local 
government, and the conservation community. All agreed that 
Colorado needed a program to fill a gap left by Sackett.
    The task force proposed four different approaches, ranging 
from continuing to use enforcement discretion to full 
assumption of the 404 program. These four approaches were 
presented to a broader audience of stakeholders, who were asked 
to provide written comments to inform State legislation.
    During the Colorado General Assembly's 2024 regular 
session, legislation was introduced authorizing our division to 
issue permits for dredge and fill activity for all ephemeral 
and intermittent streams and all wetlands in the State, which 
went further than just regulating the gap of waters created by 
Sackett. However, this approach provides certainty to the 
regulated community by eliminating a ``significant nexus'' 
determination.
    Through a series of over 45 stakeholder meetings with 
nearly 500 participants, we drafted clear exemptions and 
exclusions to this permitting regime that ultimately resulted 
in bipartisan support for the legislation from groups like 
Earthjustice and the Sierra Club, as well as the Colorado 
Chamber of Commerce, Colorado Mining Association, and the 
State's largest water advocacy organization representing over 
400 water user interests, including water supply, agriculture, 
and local government.
    Governor Polis signed House bill 1379 into law on May 30, 
making Colorado the first State to enact legislation in 
response to Sackett. The bipartisan legislation ensures that 
Federal 404 standards will continue while also addressing 
Colorado's unique needs. This approach provides much needed 
regulatory certainty and also demonstrates that bipartisan 
solutions are achievable at the State level.
    Thank you for your attention and for allowing us to share 
Colorado's success story.
    [Ms. Rowan's prepared statement follows:]

                                 
  Prepared Statement of Nicole Rowan, Director, Water Quality Control 
     Division, Colorado Department of Public Health and Environment
    Thank you, Chairman Rouzer, Ranking Member Napolitano, Chairman 
Graves, Ranking Member Larsen, and distinguished subcommittee members, 
for the opportunity to testify before you today. My name is Nicole 
Rowan, and I serve as the Director of the Colorado Department of Public 
Health and Environment's Water Quality Control Division. We are the 
primary water quality protection program in the state. Since 1975, we 
have implemented a delegated Section 402 program under the federal 
Clean Water Act (or ``federal Act'') and a Section 401 water quality 
certification program. Our 250-person division regulates 11,000 
businesses across Colorado to ensure that they can operate effectively 
while protecting the state's water resources.
    I am submitting this written testimony on behalf of the State of 
Colorado to accompany my oral testimony concerning Colorado's proactive 
response to the U.S. Supreme Court's decision in Sackett v. EPA (May 
2023). Colorado led the nation to establish a state dredge and fill 
program in response to the Sackett decision through legislation. Our 
program reinstates water quality protections that had been in place for 
50 years at the federal level prior to Sackett, and also addresses a 
number of Colorado-specific priorities. While we take pride in this 
success story, we also want to take this opportunity to emphasize the 
resulting significant financial burden on states like Colorado that 
wish to continue wetland and water quality protection at the pre-
Sackett level, as well as the entities regulated by those states.
    As you know, the U.S. Supreme Court`s decision in Sackett v. EPA 
significantly narrowed the scope of waterways and wetlands historically 
protected under the Clean Water Act. The Court's decision altered the 
decades-long status quo that acknowledged the interconnectivity of all 
water sources, regardless of navigability or permanence. The Sackett 
decision saddled states with the burden of filling the gaps in 
longstanding, uniform federal protection--to the extent states choose 
to do so at all. The decision will undeniably result in a patchwork of 
regulatory schemes across the nation to address water quality 
protection, which is counter to the intent and purpose of the federal 
Clean Water Act since wetlands serve to protect both seasonal and 
permanent waterways that eventually flow across state borders. The 
decision also greatly undermines the principle of cooperative 
federalism that is the cornerstone of the Clean Water Act--through 
which the federal government is responsible for setting uniform, 
protective nationwide standards that states may choose to implement in 
different ways with federal assistance and oversight.
          I. Implications of the Sackett Decision for Colorado
    From a proportional standpoint, the Sackett decision has some of 
the greatest implications for the arid and semi-arid states in the 
West, such as Colorado. This is because approximately 50% of Colorado's 
streams are seasonal and thus do not satisfy the ``relatively 
permanent'' test under Sackett to be considered ``waters of the United 
States.'' Further, because of Colorado's dry climate and topography, 
over 50% of the state's wetlands do not have a ``continuous surface 
connection'' to relatively permanent waters, although the vast majority 
of these wetlands are vital to protecting downstream waters. Colorado 
is also home to many fens, which are a special kind of wetland in our 
mountainous regions that take thousands of years to form. Fens are 
especially effective in filtering pollution from downstream waters and 
also act as carbon sinks.
    The impacts of the Sackett decision in Colorado are particularly 
stark because water in our state is increasingly scarce, and yet vital 
to our prosperity. As the state's water needs expand, the health of our 
waterways becomes even more important to support our economy and 
growing population. Indeed, Colorado's wetlands and seasonal streams 
provide countless opportunities for outdoor recreation, including 
rafting and kayaking, hunting and fishing, and observing wildlife. 
Colorado also takes great pride in its agricultural economy, which 
relies on clean and predictable water supplies. Wetlands, in 
particular, provide broad public benefits, including erosion control, 
flood control, groundwater recharge, minimization of wildfire impacts, 
and water quality enhancement through filtration of pollutants. 
Further, as a headwaters state where most of our water originates high 
in the Rocky Mountains through snowfall, the 17 downstream states that 
depend on water originating in Colorado through interstate compacts are 
also affected by the quality of our water.
       II. Colorado's Bipartisan Response to the Sackett Decision
    For all of these reasons, the Sackett decision and subsequent 
change to the regulatory definition of ``waters of the United States'' 
made it imperative for Colorado to take immediate action to fill the 
gap left in oversight of dredge and fill activities. Since 1975, 
Colorado has administered an EPA-approved point source discharge 
permitting program under Section 402 of the federal Act. The state, 
however, did not establish a permitting program to regulate discharges 
of dredged or fill material. Instead, along with 47 other states, 
Colorado has historically relied on the U.S. Army Corps of Engineers' 
(``USACE'') Section 404 permitting program to protect its waterways 
from the impacts of dredge and fill activities. Through Colorado's 
Section 401 authority, Colorado has worked cooperatively with the USACE 
for nearly 50 years to ensure that activities being conducted under 
individual 404 permits do not adversely impact water quality. Without 
the 404 permit trigger, however, Colorado lacked a program designed to 
protect its wetlands and waterways from the impacts of dredge and fill 
activities.
    Indeed, the Sackett decision put certain projects in Colorado on 
hold and left those project proponents with no way to legally move 
forward with construction or maintenance activities. Like the federal 
Act, Colorado's Water Quality Control Act prohibits the discharge of 
pollutants (including dredged and fill material) into state waters 
without first obtaining a permit with effluent limitations designed to 
meet water quality standards established by the Colorado Water Quality 
Control Commission. Colorado cannot issue 402-type permits for 
discharges of dredged or fill material because such discharges, by 
their nature, exceed water quality standards. For this reason, after 
the Sackett decision, project proponents in Colorado risked being in 
violation of state law (i.e., discharging pollutants into state waters 
without a permit) for conducting any dredge and fill activities in 
waters that were no longer under federal jurisdiction.
    Three years before the announcement of the Sackett decision, 
Colorado undertook significant efforts to examine ``gap-filling'' 
options for water quality protection. In response to the Navigable 
Waters Protection Rule published in April 2020, the Colorado Department 
of Public Health and Environment led a stakeholder process to discuss 
legislative solutions for filling a similar gap in federal dredge and 
fill protection of our state's waterways and wetlands. That stakeholder 
effort began with monthly meetings and eventually evolved into weekly 
meetings during Colorado's 2021 legislative session. Although state 
dredge and fill legislation was not ultimately passed during that 
session, because of these outreach efforts, much of the foundation had 
already been laid by the time the Sackett decision was announced.
    Colorado's proactive approach continued in anticipation of the 
Sackett decision. Shortly after the Supreme Court heard oral argument 
for the Sackett case in October 2022, Governor Polis convened a task 
force to examine options for a state-administered dredge and fill 
program. The task force included representatives from several important 
sectors within the state: agriculture, water supply, construction, 
industry and commerce (including mining and oil and gas development), 
local governments, and the conservation community. Representatives from 
the Governor's Office, the State Attorney General's Office, and various 
executive agencies, including Colorado's Department of Public Health 
and Environment, Department of Agriculture, Department of Natural 
Resources, and Department of Transportation, also participated. The 
task force met seven times from February 2023 to July 2023.
    All members of Governor Polis's task force agreed that Colorado 
needed a program to fill the gap in dredge and fill protection left by 
the Sackett decision. The task force proposed four possible approaches 
(including the pros and cons of each) for Colorado to address dredge 
and fill activities in the post-Sackett landscape: (1) an enforcement 
discretion approach--a temporary option that would allow dredge and 
fill activities to continue until a more permanent solution could be 
agreed upon, involving installation of best management practices in 
exchange for no enforcement for discharging without a permit; (2) a 
``gap waters'' approach, which would focus on protecting waters and 
wetlands previously protected under the ``significant nexus'' test from 
the Court's Rapanos decision and corresponding EPA guidance issued in 
2008; (3) a Colorado ``state waters'' program, which would protect all 
``state waters,'' as that term is defined in state statute, including 
wetlands, that do not fall under federal jurisdiction; and (4) full 
assumption to administer the federal Section 404 program. The task 
force agreed that it would be important to continue the longstanding 
exemptions and exclusions found in the definition of ``waters of the 
United States'' and the 404 permitting program framework, while taking 
the opportunity to provide additional clarity and adding exemptions and 
exclusions to address Colorado-specific needs. In July 2023, these four 
approaches, along with the exemptions and exclusions, were presented in 
a series of sector-specific meetings open to a broader audience of 
interested stakeholders. The Task Force did not endorse or recommend 
any particular one of these approaches. Stakeholders were asked to 
provide written comments on the options to the Governor's Office by 
October 2023, which would be considered in crafting legislation to be 
introduced in Colorado's 2024 legislative session.
    The Governor's Office and the Departments considered a myriad of 
written comments to assist the bill sponsors, Speaker of the House 
Julie McCluskie, Chair of the House Agriculture, Water and Natural 
Resources Committee Representative Karen McCormick, Chair of the Senate 
Agriculture and Natural Resources Committee Dylan Roberts, and Joint 
Budget Committee Member Barbara Kirkmeyer, in crafting legislation to 
authorize a state dredge and fill program. In January 2024, soon after 
Colorado's legislative session began, the House sponsors and the 
Department hosted a hybrid informational meeting to announce the 
proposed framework of the program and continuing opportunities for 
robust stakeholder involvement as details were being considered. Nearly 
400 people attended that meeting, demonstrating a high level of 
interest in the program. Shortly thereafter, a draft bill was shared 
with stakeholders, kicking off three and half months of negotiating and 
fine-tuning bill language with representatives from the various 
sectors. This back-and-forth continued both before and after the bill 
was officially introduced as House Bill 24-1379. During this period, 
the bill sponsors held numerous in-person meetings and remained in 
constant contact with all stakeholders to consider various proposals. 
This process resulted in dozens of amendments to the introduced bill, 
demonstrating the high level of cooperation that went into the final 
product.
    Incorporating input and specific language from the various 
stakeholders ultimately made the legislation stronger and more focused 
on Colorado's unique interests. The collaboration and expertise of 
several state agencies were also key factors in the bill's success, 
along with the partnership of Colorado's diligent and well-organized 
conservation coalition. Colorado Governor Jared Polis signed the bill 
into law on May 30, 2024, making Colorado the first state in the 
country to enact legislation in direct response to the Sackett 
decision. Colorado could not have achieved this accomplishment without 
bipartisan buy-in and collaboration from all stakeholders. All 
stakeholders were willing to work together to achieve the common goal 
of protecting Colorado's valuable water resources, with each sector 
having unique concerns and perspectives to contribute.
    III. Colorado's Dredge and Fill Program Framework and Continued 
                        Stakeholder Involvement
    The resulting legislation established Colorado's Dredge and Fill 
Protection Program within the Colorado Water Quality Control Act, which 
protects all ``state waters'' from the impacts of dredge and fill 
activities. Consistent with the wishes of the regulated community, the 
Colorado program is based on the longstanding federal Section 404 
permitting principles of avoidance and minimization of adverse impacts, 
and mitigation requirements to compensate for unavoidable impacts. The 
legislation also requires project proponents seeking to construct 
reservoirs under state-issued individual dredge and fill permits to 
develop a fish and wildlife mitigation proposal in consultation with 
the Division of Parks and Wildlife. The Colorado Parks and Wildlife 
Commission then evaluates the proposal and transmits its mitigation 
recommendation to the Colorado Water Conservation Board, which may 
affirm, modify, or amend the Commission's mitigation recommendation.\1\ 
This requirement has been in place since 1987 for reservoirs being 
constructed under federal Section 404 permits, and Colorado felt it was 
important to maintain these same protections for projects that no 
longer fall under USACE jurisdiction.
---------------------------------------------------------------------------
    \1\ Colorado Revised Statutes, Sec.  37-60-122.2 (2024).
---------------------------------------------------------------------------
    The legislation directs the division to administer USACE's existing 
nationwide and regional permits to protect ``state waters'' that are no 
longer covered under the federal Section 404 permitting program. 
Colorado defines ``state waters'' as ``any and all surface and 
subsurface waters which are contained in or flow through the state, 
including wetlands . . . .'' \2\ This includes all ephemeral and 
intermittent streams and other water features (unless otherwise 
excluded), even if they are isolated from other state waters. 
Colorado's point source discharge program and dredge and fill program 
are purposefully designed to protect any and all state waters that do 
not otherwise fall under federal jurisdiction. The broad scope of our 
water quality protection programs provides regulatory certainty in 
light of the ever-changing federal definition waters of the United 
States.
---------------------------------------------------------------------------
    \2\ Colorado Revised Statutes, Sec.  25-8-103(19) (2024). The 
division has historically included wetlands in its administration of 
the state's point source discharge program, but Colorado took the 
opportunity in House Bill 24-1379 to specifically include ``wetlands'' 
in the statutory definition of state waters.
---------------------------------------------------------------------------
    While the scope of protection under the legislation is broad, it 
also eliminates the need for a significant nexus determination and 
provides numerous exemptions for certain activities and exclusions for 
specified types of waterbodies, including those that have been long-
recognized under the federal definition of waters of the United States 
and the section 404 framework, but with added clarity. For example, the 
federal permitting exemption for ``normal farming activities'' in 
section 404 of the Clean Water Act has created confusion for years. The 
federal exemption includes ``upland soil and water conservation 
practices'' (e.g. erosion control) in its list of normal farming 
practices, but the term has never been defined in statute or 
regulation. At the request of agriculture stakeholders, Colorado 
included a detailed definition of the term, which also recognizes that 
farmers and ranchers implement these types of practices daily, thereby 
reducing nonpoint source pollution and improving water quality.
    Colorado's legislation also expands and clarifies the federal 
statutory exemption for ``construction and maintenance of farm ponds, 
stock ponds, or irrigation ditches or the maintenance of drainage 
ditches'' to better align with Colorado's extensive use of ditches and 
acequias for irrigation and drainage. The state provision, crafted in 
partnership with our agriculture stakeholders, exempts:

        Construction or maintenance of farm ponds, stock ponds, farm 
        lagoons, springs, recharge facilities located in uplands, and 
        irrigation ditches or acequias, or maintenance of a drainage 
        ditch, roadside ditch, or a ditch or canal conveying wastewater 
        or water. Construction of new work or to extend, expand, or 
        relocate an irrigation ditch or acequia for municipal or 
        industrial purposes is not an exempt activity . . . .

    The provision goes on to include detailed definitions of the terms 
``construction,'' ``maintenance,'' ``irrigation ditches,'' and 
``acequias,'' which, again, were agreed upon by representatives from 
Colorado's farming and ranching sectors.
    We also crafted additional exemptions and exclusions to address the 
specific concerns of the various sectors, including common-sense 
provisions to allow for certain infrastructure and water supply 
projects to be constructed and maintained in a more efficient manner. 
For example, a permitting exemption was included for dredging and other 
maintenance activities in off-channel reservoirs, which does not exist 
at the federal level.
    The legislation directs Colorado's Water Quality Control Commission 
to adopt rules governing certain aspects of the program such as: (1) 
procedures and guidelines for the division's issuance of individual 
permits for larger projects and incorporation of the federal 404(b)(1) 
guidelines as the framework of those permits; (2) procedures for 
consultation with relevant state and local agencies in developing 
individual permit terms; (3) compensatory mitigation requirements for 
projects that meet certain impact thresholds; (4) rules for the 
issuance of general permits to promote efficiency for activities in 
response to wildfire or other natural disasters, voluntary ecological 
restoration activities, and activities impacting isolated state waters; 
and (5) fee amounts to assist with covering the cost of administering 
the program. The Department recently initiated a new stakeholder effort 
that will continue until the rulemaking hearing, scheduled for December 
2025. Meetings will be held with stakeholders on a monthly basis to 
discuss all aspects of the regulation and to receive comments, even 
before the formal rulemaking process begins in August 2025.
    IV. The Resulting Financial Burden on Colorado and Other States
    While Colorado considers the passage of House Bill 24-1379 to be a 
major bipartisan success for the protection of our valuable water 
resources, administering a program to fill the gap in protection left 
by the Sackett decision will result in a significant fiscal impact for 
the state--just to maintain the longstanding status quo of prior 
federal protection. The Department anticipates spending approximately 
$500k-$600k per year and hiring four full-time employees. In order to 
sustain the program, a portion of the program costs will be passed to 
the regulated community through cash fees, which they are not used to 
paying at the federal level.
    Later this year, Colorado anticipates receiving a grant through 
EPA's Wetland Program Development Grant (``WPDG'') program, which will 
allow the Department to hire contractors to assist with program 
development. While these resources are valuable, funding for the WPDG 
program has remained flat for more than a decade, maintained at 
approximately $14.5 million per year. When adjusted for inflation, FY23 
funding levels are at a 22% reduction from ten years ago. Additionally, 
these grants are for program development and not ongoing administration 
of programs. By upending the 50-year status quo, the Sackett decision 
left states to establish and administer fully protective dredge and 
fill programs. More than ever, states will need to rely upon federal 
assistance to protect their wetlands and downstream water resources.
                             V. Conclusion
    In conclusion, while Colorado has taken significant steps to 
address the regulatory gaps left by the Sackett decision, our 
experience underscores the critical need for sustained federal support 
and collaboration. The proactive measures we have implemented, 
including the creation of a state dredge and fill program, reflect our 
commitment to maintaining the high standards of water quality that 
Coloradans--and those downstream--rely upon. However, the financial and 
administrative burdens placed on states by this decision are 
substantial and ongoing. As we continue to navigate the complex and 
evolving landscape of water regulation, it is imperative that the 
federal government remains an engaged partner, providing both financial 
assistance and consistent regulatory frameworks to ensure that states 
can effectively protect their water resources. Only through such 
cooperative efforts can we uphold the foundational principles of the 
Clean Water Act and safeguard the health of our nation's waters for 
future generations.

    Mr. Rouzer. Thank you very much.
    Ms. Briggs.

    TESTIMONY OF COURTNEY BRIGGS, CHAIRMAN, WATERS ADVOCACY 
  COALITION, ON BEHALF OF THE AMERICAN FARM BUREAU FEDERATION

    Ms. Briggs. Chairman Rouzer, Ranking Member Napolitano, and 
members of the subcommittee, thank you for the opportunity to 
testify today.
    My name is Courtney Briggs, and I serve as chairman of the 
Waters Advocacy Coalition, also known as WAC, and as senior 
director of government affairs at the American Farm Bureau 
Federation.
    WAC is a multi-industry coalition representing a cross-
section of the Nation's construction, transportation, real 
estate, mining, manufacturing, forestry, agriculture, energy, 
wildlife conservation, recreation, and public health and safety 
sectors--all vital to a thriving national economy and providing 
much needed jobs in local communities.
    It is an honor to be here on behalf of our trade 
associations and the thousands of members and millions of jobs 
we collectively support.
    Our members are committed to protecting our natural 
resources while maintaining their businesses. They live in the 
communities where they work and understand their responsibility 
in keeping our waterways healthy.
    However, the Biden administration's interpretation and 
implementation of WOTUS lacks clarity and certainty for 
landowners and businesses and stretches the Federal 
Government's jurisdictional reach beyond the limits of what is 
legal.
    Over the last few years, we have seen the Biden 
administration offer a new WOTUS definition, the Supreme Court 
hand down a highly consequential decision in Sackett, and then 
the agencies respond with a conforming rule and numerous agency 
memos.
    Despite a clear ruling in Sackett, there have been no clear 
directions from the agencies about which water features are 
regulated by the Federal Government and which are left to the 
States. Instead, the agencies are making up the rules as they 
go.
    They have failed to clarify the meaning of ``relatively 
permanent'' and ``continuous surface connection,'' which are 
crucial terms for defining the scope of Federal jurisdiction. 
It seems the agencies want to leave these terms undefined, 
allowing them to exploit the gray areas that persist in a post-
Sackett world. By leaving these terms undefined, the agencies 
gain unchecked power to regulate land and natural resources, 
creating murky waters for regulated entities.
    In this ambiguous regulatory regime, American businesses 
and landowners are left guessing where the line of jurisdiction 
lies, despite the severe penalties for Clean Water Act 
compliance--either $64,000 per day for every day of 
noncompliance or jail time.
    It is, thus, all too easy for our members to unknowingly 
break the law. To put it simply, WAC members are tired of 
playing the agencies' never-ending guessing games.
    The agencies have also neglected to provide clear 
implementation guidance to stakeholders. Instead, WAC members 
began hearing feedback that secret implementation guidance was 
being distributed by Corps headquarters to the districts with 
strict instructions not to share publicly.
    The agencies' refusal to release this secret guidance 
forced many WAC members to submit FOIA requests. The agencies 
responded with substantially redacted texts, stating that the 
guidance was deliberative. How can something that is being used 
on the ground to make determinations that directly impact 
regulated parties be deliberative?
    The agencies' implementation improv is putting our members' 
projects and the communities that rely on them at risk. This is 
a flagrant abuse of power and a blatant disregard for 
Government transparency.
    Rather than offering clear guidance, the agencies are 
relying on memos haphazardly placed on their website with 
little public notice. Each memo gives a small snippet as to how 
they are implementing this rule, leaving stakeholders to play 
connect-the-dots, with their livelihoods on the line.
    Many of the concepts outlined in these memos run counter to 
the decision in Sackett. The agencies offer no mechanism for 
appealing the memos, no opportunity for public comment. These 
memos are effectively rulemakings hiding in plain sight.
    It is unacceptable that 1\1/2\ years since Sackett the 
agencies continue to flout the Court's ruling and hold project 
proponents and States hostage in regulatory limbo.
    Our Nation's job creators, small businesses, farmers, 
landowners, and even States remain in the dark about how the 
rule is being implemented. This is especially concerning given 
the serious penalties for even negligent Clean Water Act 
violations, such as simply moving dirt in the wrong place.
    The agencies seem more interested in charting their own 
course than adhering to the Supreme Court's decision.
    Thank you so much for the opportunity to testify today, and 
I look forward to your questions.
    [Ms. Briggs' prepared statement follows:]

                                 
   Prepared Statement of Courtney Briggs, Chairman, Waters Advocacy 
      Coalition, on behalf of the American Farm Bureau Federation
    Chairman Rouzer and Ranking Member Napolitano, thank you for the 
opportunity to testify today. My name is Courtney Briggs, and I serve 
as Chairman of the Waters Advocacy Coalition (WAC) and as Senior 
Director of Government Affairs at the American Farm Bureau Federation 
(AFBF).
    WAC is a multi-industry coalition representing a cross-section of 
the nation's construction, transportation, real estate, mining, 
manufacturing, forestry, agriculture, energy, wildlife conservation, 
recreation, and public health and safety sectors--all of which are 
vital to a thriving national economy and provide much-needed jobs in 
local communities. It is an honor to be here representing the 45 trade 
associations, and the hundreds of thousands of members collectively 
across the country, that make up WAC. I am also here representing the 
thousands of hard-working farm and ranch families that produce the 
abundant food, fiber, and renewable fuel that our nation and the world 
depend on.
    Our members are committed to protecting our natural resources while 
also maintaining profitable businesses. They live in the communities 
where they work and understand their responsibility in keeping our 
waterways healthy. I have a unique understanding of this mindset, as it 
is imbedded into the business philosophy of almost every farmer and 
rancher across this country. They know they cannot grow crops or raise 
animals without clean water and healthy soil, and they must leave the 
land in better condition than they received it. I think we can all 
agree that this is our collective goal, but the Biden Administration's 
interpretation of WOTUS lacks clarity and certainty for landowners and 
pushes the scope of the federal government's jurisdictional reach to 
the outer bounds of what is legal under the Clean Water Act (CWA). The 
U.S. Environmental Protection Agency (EPA) and the Army Corps of 
Engineers' (the agencies) failure to faithfully implement the Sackett 
decision has real-life consequences for important infrastructure and 
development projects, and is impacting real people in the communities 
that you all represent.
             Flip Flopping of WOTUS is Unfair to Landowners
    WAC and its members support the objectives of federal environmental 
statutes such as the CWA. What we cannot support is the continuing 
ambiguity of the line separating federal and state jurisdiction, which 
is an issue that has created confusion for landowners, regulators, and 
the general public for decades. We have lived in a world of regulatory 
uncertainty due to near-constant rulemakings that swing the pendulum 
back and forth, redefining the scope of the CWA. We have seen ``waters 
of the United States'' (WOTUS) definitions change with each new 
Administration and guidance documents offered and then rescinded, 
generating more questions than answers. Landowners, small businesses, 
and American families are the ones who suffer the most with these 
constant changes.
    Like clockwork, in early 2023, the agencies swung the regulatory 
pendulum and finalized a new definition of WOTUS that greatly expanded 
the federal government's role in regulating land use. WAC was highly 
critical of the agencies' decision to move forward with this rulemaking 
because the Supreme Court was set to imminently hand down a highly 
consequential decision in Sackett v. EPA. Shortly after the 2023 rule 
went into effect, the Court handed down a decision that reinforced 
property owners' rights and ensured adherence to the congressional 
intent of the CWA. The Court also respected the CWA's cooperative 
federalism framework, as well as the states' primary authority and 
responsibility to regulate non-federal waters within their borders.
    All nine Supreme Court justices agreed that the Biden 
Administration's use of the controversial ``significant nexus test'' 
was illegitimate, and a majority of the Court agreed that EPA's 
interpretation of ``adjacency'' was overly broad. In an opinion 
authored by Justice Alito, the Court reprimanded the agencies for 
illegally expanding their regulatory reach. WAC celebrated this legal 
victory because our members thought it would inject more clarity and 
certainty into the regulatory process. Unfortunately, we were wrong.
    On Sept. 8, 2023, the Corps and the EPA published a final rule 
revising the regulatory definition of WOTUS under the CWA to try to 
conform the definition to the Sackett decision. This ``conforming 
rule'' failed to provide any more context to specific terms that are 
serving as the linchpin for determining the scope of the federal 
government's authority. It became obvious that the agencies were going 
to exploit the gray areas that still exist in a post-Sackett world to 
try to expand their regulatory reach. Leaving these terms undefined and 
interpreting them expansively and in a freewheeling manner since 
Sackett has given the agencies the latitude to regulate land use 
however they please.
     Why Words Matter: Relatively Permanent and Continuous Surface 
                               Connection
    With the death of ``significant nexus'' in Sackett, the Court 
agreed that the agencies must solely follow the ``relatively 
permanent'' test; a regulatory test originally authored by Justice 
Scalia in Rapanos v. United States. As its name suggests, the test 
states that a relatively permanent water that is connected to a 
traditional interstate navigable water can be regulated as a 
``navigable water'' (i.e., as a WOTUS). Likewise, an adjacent wetland 
can be jurisdictional if it has a ``continuous surface connection'' to 
a traditional interstate navigable water or a relatively permanent 
water connected thereto.
    In the aftermath of the Rapanos decision, the agencies drafted 
interpretive guidance (2008 Guidance) where they interpreted 
``relatively permanent'' to mean flowing year-round or having 
continuous flow at least seasonally. In practice, the agencies 
unlawfully swept in even ephemeral water features that carried flow 
only after precipitation events (and far too many intermittent features 
as well). The agencies interpreted ``seasonally'' to mean generally 
three months, or possibly even less time depending on what part of the 
country the water feature is located in. The agencies purported to rely 
on a footnote in Rapanos to support this interpretation, but on its 
face, that footnote discussed the possibility that a river flowing for 
290 days (closer to 10 months) would not necessarily be excluded under 
the relatively permanent test. In other words, whether jurisdiction can 
be exercised over rivers, streams, and tributaries that flow 
continuously for 290 days is a case-by-case basis inquiry. The agencies 
inverted what Justice Scalia intended and instead concluded that any 
feature that flows for continuously for at least 90 days is 
automatically jurisdictional. See Rapanos, 547 U.S. at 732 n.5. It goes 
without saying that not necessarily excluding 290 days of continuous 
flow cannot possibly equate to automatically including 90 days of 
continuous flow.
    The new rule makes the relatively permanent standard even more 
expansive than the 2008 guidance. The new rule abandons the seasonal 
concept and does not use any bright line tests (days, weeks, or months) 
or any concepts of flow regime (ephemeral, intermittent, perennial). 
The rule vaguely says relatively permanent tributaries have flowing or 
standing water year-round or continuously during certain times of the 
year and they do not include tributaries with flowing or standing water 
for only a short duration in direct response to precipitation. As an 
example, the agencies suggest that consecutive storm events, or even a 
single strong storm event, is enough to create relatively permanent 
flow. This subtle change will greatly expand what areas the agencies 
can assert jurisdiction over under the relatively permanent test.
    Because the agencies have tied the relatively permanent standard to 
the ditch exclusion, the broader the relatively permanent standard 
gets, the fewer ditches will be excluded from jurisdiction. Under both 
the 2008 guidance and the 2023 rule, ditches are excluded only if they 
do not carry relatively permanent flow. Again, because the relatively 
permanent test has expanded, fewer ditches will meet the requirement in 
the exclusion.
    Likewise, the 2023 rule also expands which wetlands (and ``other 
waters'') are jurisdictional by virtue of having a continuous surface 
connection to a relatively permanent water. The agencies interpret 
``continuous surface connection'' to mean a physical connection that 
does not need to be a continuous surface hydrologic connection, and 
wetlands need not directly abut a relatively permanent water. Under the 
2008 guidance, however, wetlands would only meet the ``continuous 
surface connection'' test if they directly abut a relatively permanent 
tributary (e.g., are not separated by uplands, a berm, dike, or similar 
feature). The new rule, by contrast, abandons this directly abutting 
requirement and instead provides that wetlands have a continuous 
surface connection even if they are separated from a relatively 
permanent impoundment of a tributary by a natural berm, bank, dune, or 
similar natural landform so long as that break does not sever a 
continuous surface connection and provides evidence of a continuous 
surface connection. Wetlands also meet the continuous surface 
connection requirement if they are located some distance away from a 
relatively permanent tributary but connected by some linear feature 
such as a ditch, swale, or pipe. The picture becomes clear that the 
agencies are moving in the wrong direction.
    It is worth noting that, ultimately, the question is not whether 
tributaries or ephemeral streams are ``important'' or may as a 
scientific matter have some connection with downstream navigable 
waters, see, e.g., 86 Fed. Reg. at 69,390; rather, the question is 
whether they should be considered as falling within the bounds of 
federal jurisdiction. As with so many other categories in the 2023 
rule, the agencies collapse that distinction.
                      Alito's Decision in Sackett
    While the decision in Sackett did not pinpoint a specific flow 
metric to be used to determine the meaning of relatively permanent, it 
did give us more context as to what a regulated feature should look 
like. Sackett ``conclude[d] that the Rapanos plurality was correct: the 
CWA's use of `waters' encompasses `only those relatively permanent, 
standing or continuously flowing bodies of water `forming 
geographic[al] features' that are described in ordinary parlance as 
`streams, oceans, rivers, and lakes.' '' The Rapanos plurality, in 
turn, repeatedly distinguished between ``continuously present, fixed 
bodies of water'' and ``ordinarily dry channels through which water 
occasionally or intermittently flows.'' Indeed, the Rapanos plurality 
explained that, as a matter of ``commonsense,'' the phrase ``waters of 
the United States'' excludes ``channels containing merely intermittent 
or ephemeral flow.''
    Equally important, in Sackett, Justice Alito wrote that, to be 
jurisdictional, a ``wetland [must] ha[ve] a continuous surface 
connection with [a relatively permanent] water . . . making it 
difficult to determine where the `water' ends and the `wetland' 
begins.'' Additionally, the Court held ``that the Clean Water Act 
extends to only those wetlands that are as a practical matter 
indistinguishable from waters of the United States.'' In further 
elaborating what it means to have a ``continuous surface connection,'' 
Justice Alito noted that ``temporary interruptions in surface 
connection may sometimes occur because of phenomena like low tides or 
dry spells.'' Read in context, Justice Alito clearly had in mind that, 
to be jurisdictional, wetlands must typically have a continuous surface 
hydrologic connection to a relatively permanent water, not just some 
ordinarily dry physical connection like a ditch, pipe, or swale that 
might span hundreds (or even thousands) of feet.
                     WOTUS Implementation Concerns
    Immediately after the Sackett decision was handed down, the Corps 
notified the public that they would be pausing the issuance of approved 
jurisdictional determinations (AJDs) indefinitely. During the summer of 
2023, landowners' only option to move forward on a project was to 
accept a preliminary jurisdictional determination (PJD). PJDs force 
landowners to concede that their land is a WOTUS and accept the 
permitting and mitigation requirements--often unnecessarily. Many 
projects with specific production windows had their backs against a 
wall and saw this as the only option, especially in weather-dependent 
industries such as construction. The directives in Sackett gave the 
agencies the ability to move forward with most AJDs over that summer 
but the Corps chose to take the summer off.
    In September 2023, the agencies released two joint elevation 
coordination memos to the field that established a process by which the 
agencies will coordinate on CWA jurisdictional matters to ``ensure 
accurate and consistent implementation'' of the 2023 rule or the pre-
2015 regulatory regime, depending on which regulatory framework is 
applicable.\1\ The memos also outline procedures and specific timelines 
under which the agencies can review and provide comment on certain 
draft AJDs. Again, these elevation memos only discuss the process for 
how the agencies will handle the approved jurisdictional determinations 
that are elevated to Corps and EPA headquarters to be decided by 
bureaucrats in Washington, D.C., and it fails to provide any actual 
information for landowners to understand how the Corps intends to 
implement the rule on the ground.
---------------------------------------------------------------------------
    \1\ U.S. Env't. Prot. Agency and U.S. Army Corps of Eng'rs, Joint 
Coordination Memorandum to the Field between the U.S. Department of the 
Army, U.S. Army Corps of Engineers (Corps) and the U.S. Environmental 
Protection Agency (EPA) on the Pre-2015 Regulatory Regime (Sep. 27, 
2023), https://www.epa.gov/system/files/documents/2023-10/2023-joint-
coordination-memo-pre-2015-regulatory-regime_508c.pdf; U.S. Env't. 
Prot. Agency and U.S. Army Corps of Eng'rs, Joint Coordination 
Memorandum to the Field between the U.S. Department of the Army, U.S. 
Army Corps of Engineers (Corps) and the U.S. Environmental Protection 
Agency (EPA) on the January 2023 Rule, As Amended (Sep. 27, 2023), 
https://www.epa.gov/system/files/documents/2023-10/2023-joint-
coordination-memo-amended-2023-rule_508c.pdf.
---------------------------------------------------------------------------
    It has been exactly one year since the issuance of the elevation 
coordination memos and unfortunately, many of WAC's members are still 
experiencing significant challenges. Our members have experienced 
blatant disregard for the timelines specified by the agencies. Some of 
our members have draft AJDs that were elevated for local or 
headquarters coordination twelve months ago and still have not been 
resolved. Our members have compared this process to a ``black box,'' 
with many receiving no communication from the agencies on the status or 
any questions or comments the agencies have regarding their draft AJDs. 
We also understand that some Corps Districts have completely stopped 
issuing AJDs--putting important projects and the communities that rely 
on them at risk. Within WAC, we have many examples of these challenges 
that we are willing to share with the Committee without attribution.
    Shortly after the release of the elevation coordination memo, WAC 
members from various industry sectors and regions of the country also 
began to hear about internal guidance, directives, and training 
documents regarding implementation that the Corps developed but has not 
made available to the public. One of these documents includes internal 
headquarters-level guidance dated around September 2023 that includes 
information germane to, among other issues, assessing whether an arid 
west drainage is relatively permanent. We also understand the agencies 
have been providing regular training and information to District Office 
staff regarding implementation of the final rule post-Sackett. Through 
our contacts within the environmental consulting community, we heard 
firsthand of this ``secret'' implementation guidance. We were 
astonished by the blatant lack of transparency from the federal 
government.
                Agency Implementation Memos Defy Sackett
    The calls from various landowners, industry sectors and states to 
provide more information on implementation reached a fever pitch 
earlier this year and the agencies quietly released two ``Headquarters 
Field Memos Implementing the 2023 Rule, as Amended'' on the WOTUS 
Implementation section of EPA's website. The agencies subsequently 
released three additional ``Headquarters Field Memos Implementing the 
Pre-2015 Regulatory Regime Consistent with Sackett'' on a separate part 
of EPA's website. Unfortunately, the agencies not only failed to 
prominently feature these updates or provide any notification to the 
public about their existence, but they also neglected to offer any 
guidance on how these memos should be interpreted or applied. As of 
Sept. 5, 2024, the agencies have released 10 total policy memoranda, 
four related to draft AJDs completed under the 2023 rule and six 
related to draft AJDs completed under the pre-2015 regulatory regime. 
Unfortunately, these field memoranda functionally expand the scope of 
federal jurisdiction in violation of Sackett.
    Much of what little direction the agencies have provided the 
regulated community and public in the form of these memos directly 
conflicts with Sackett and operates as quasi-rulemakings in disguise, 
in violation of the Administrative Procedure Act (APA). These memoranda 
are precisely the kind of regulatory overreach the APA was designed to 
prevent. According to the APA, a ``rule'' is an agency statement of 
general or particular applicability intended to implement, interpret, 
or prescribe policy, or to describe organizational practice. Yet, the 
agencies have been issuing ``Memos to the Field'' and telling 
stakeholders that EPA regional and Corps District Offices should use 
them for jurisdictional determinations whenever they see a similar fact 
pattern. It's like pouring muddy water into clear streams and 
pretending no one will notice--these memos are clearly being used to 
set broad policy under the guise of specific guidance on WOTUS 
regulations.
    Furthermore, the agencies have asserted that these memoranda are to 
be incorporated into the WOTUS interpretation lexicon. While on paper, 
they attempt to sidestep rulemaking responsibilities by claiming these 
memos are not legally binding, this is merely an effort to disguise 
what they truly are: rulemakings hiding in plain sight. The agencies 
offer no mechanism for appealing these memos, nor any opportunity for 
public comment before they are issued. As a result, the public is left 
navigating murky waters with politically charged, legally flawed 
documents that decision-makers rely on, leaving them in a state of 
legal limbo with no recourse.
    For example, the agencies instructed the North Dakota field office 
to reconsider, post-Sackett, whether a wetland separated by a 15-foot 
``dirt track road and a seasonally plowed field''--and lacking a 
``culvert to maintain a connection'' to a navigable feature--is still 
jurisdictional. The agencies asserted that physically separate wetlands 
may be treated as one jurisdictional wetland based on various factors, 
even without a hydrologic connection, revealing a clear intent to evade 
Sackett's holdings.
    As another example, a recently released memorandum directs the 
Buffalo District to evaluate whether a small wetland (only 0.030 acres) 
connected solely by a non-relatively permanent stream and another 
wetland over approximately 195 feet, still qualifies as jurisdictional 
under the CWA, despite the lack of a continuous surface connection to a 
navigable water. The agencies suggest that these disconnected features 
can collectively form a single jurisdictional wetland, demonstrating a 
clear intent to sidestep the Sackett ruling's requirement for a direct 
and continuous surface connection. Additionally, this memo vaguely 
discusses their understanding of ``indistinguishable'' when they state 
that the term is ``not alone determinative of whether adjacent wetlands 
are `waters of the United States.' '' They also add that ``Sackett does 
not require the agencies to prove that wetlands and covered waters are 
visually identical.''
    The agencies' failure to provide clear direction to the public is 
creating significant uncertainty on the ground and delaying important 
projects. It is worth noting again that landowners need clarity from 
the agencies on how they are interpreting and implementing the rule 
because the CWA carries severe civil and criminal penalties for even 
negligent violations. Landowners can be fined up to $64,000/per day or 
receive jail time for any CWA violations. These penalties can devastate 
small businesses, so landowners must understand how this rule is 
implemented. Leaving them in the dark will only open them up to 
unknowingly violating the law. Due to the agencies' veil of secrecy, 
landowners are denied their constitutional rights of due process and 
fair notice.
           WAC Letter and Freedom of Information Act Request
    Given the lack of transparency surrounding the elevation 
coordination memo, the agencies' implementation memos, and the secret 
field guidance, WAC sent a letter to agency leaders sharing our 
member's implementation challenges and asking for answers on how the 
agencies are implementing the rule. It has been six months since we 
sent the letter, and we have yet to receive a response from either 
agency. This lack of response only exacerbates the frustration felt by 
our members, further codifying the belief that the agencies do not 
actually want our members to have a working understanding of 
implementation. This motivated WAC and many individual WAC members to 
pursue our last available option toward gaining this vital information: 
a Freedom of Information Act (FOIA) request.
    Several months after the initial FOIA request, the government 
provided a 1,128-page response. Unfortunately, a large majority of the 
documents and text were redacted and labeled as ``deliberative'' under 
a misapplication of FOIA Exemption 5 (deliberative process privilege). 
However, the agencies' FOIA response confirmed two important things: 1) 
the secret implementation guidance does exist and has been disseminated 
to Corps districts and 2) Corps districts were explicitly instructed by 
headquarters not to share this information with the public.\2\ 
Shockingly, the SharePoint that outlines the secret implementation 
guidance was redacted from the response. It defies logic that the 
implementation guidance that is currently being used on the ground is 
considered ``deliberative.''
---------------------------------------------------------------------------
    \2\ U.S. Department of the Army, Office of Counsel, Waters Advocacy 
Coalition FOIA Request No. FP-24-012628.
---------------------------------------------------------------------------
                         Failed Public Outreach
    In the wake of Sackett, the agencies have repeatedly promised to 
engage stakeholders on implementation recommendations. In a July 13, 
2023, hearing before the House Transportation and Infrastructure 
Committee's Subcommittee on Water Resources and Environment, then-EPA 
Assistant Administrator Radhika Fox told Congress the Agency would 
``host implementation discussions with a range of stakeholders . . . if 
there are ongoing questions after that rulemaking is complete.'' \3\ 
When asked about next steps on WOTUS implementation during a Dec. 5, 
2023, hearing before the same subcommittee, Assistant Secretary of the 
Army for Civil Works Michael Connor similarly promised Congress that 
the Corps would ``continue to engage with the public and then look as 
we get into next year doing guidance documents.'' \4\
---------------------------------------------------------------------------
    \3\ Hearing on Agency Perspectives of FY24 Budget Requests: Hearing 
Before the H. Comm. on Transp. and Infrastructure, 118 Cong. (July 13, 
2023).
    \4\ Hearing on Water Resources Development Acts: Status of Past 
Provisions and Future Needs: Hearing Before the H. Comm. on Transp. and 
Infrastructure, 118 Cong. (Dec. 5, 2023).
---------------------------------------------------------------------------
    However, 1.5 years after the Sackett decision and exactly one year 
after the publication of the final ``conforming'' rule, the agencies 
have only recently attempted to engage with the public or answer any 
implementation-related questions from the regulated community. For 
example, many of our associations participated in the agencies' 
listening sessions on Feb. 27 and 28, 2024, and raised implementation 
questions during those meetings that went unanswered. Many of our 
associations also asked these questions in stakeholder meetings with 
EPA's Office of Water on March 22, 2024. Unfortunately, the agencies 
did not respond to our questions during the listening session or at any 
point thereafter. Our members need this information to ensure that they 
are complying with the law. Engaging with the regulated community 
aligns with EPA's \5\ and the Corps' \6\ own policies promoting 
meaningful public engagement and involvement. It also reflects the 
White House's direction to the heads of all federal agencies to broaden 
public engagement in the regulatory process. We encourage a more robust 
and ongoing discussion to ensure clear and consistent WOTUS 
implementation.
---------------------------------------------------------------------------
    \5\ See U.S. Env't. Prot. Agency, Meaningful Engagement Policy 
(Sept. 2024), available at https://www.epa.gov/environmentaljustice/
epas-meaningful-engagement-policy .
    \6\ See U.S. Army Corps of Eng'rs , Fact Sheet: Collaboration & 
Public Participation Center of Expertise, available at https://
www.iwr.usace.army.mil/Portals/70/docs/CPCX/PIS_Fact_
Sheet.pdf. (``Public participation and collaboration are becoming an 
integral part of the U.S. Army Corps of Engineers' missions. Effective 
involvement and collaboration achieves more sustainable project 
solutions and helps projects stay on schedule. Experience has proven 
that open, ongoing and two-way communication between the Corps and the 
communities we serve reduces project risks and improves internal and 
external customer satisfaction.'' See also 2021-2025 Strategic Plan: 
USACE Collaboration and Public Participation Center of Expertise, 
available at https://www.iwr.usace.army.mil/Portals/70/docs/CPCX/
    \6\ See Memorandum from Richard L. Revesz, Adm'r., Office of 
Management and Budget; Memorandum for the Heads of Executive 
Departments and Agencies on ``Broadening Public Participation and 
Community Engagement in the Regulatory Process'' at 1 (July 19, 2023), 
available at https://www.whitehouse.gov/wp-content/uploads/2023/07/
Broadening-Public-Participation-and-Community-Engagement-in-the-
Regulatory-Process.pdf
---------------------------------------------------------------------------
             How is this Different from Significant Nexus?
    As we have already established, the Supreme Court unanimously drove 
a stake into the heart of the significant nexus test. However, through 
the agency implementation memos we have pieced together a few aspects 
of what we anticipate is published in the secret Corps guidance. First, 
the agencies are merely requiring a physical connection, as opposed to 
a hydrologic connection in order to establish jurisdiction, which is 
inconsistent with both the Rapanos and Sackett decisions. Second, they 
have confirmed that they will use non-relatively permanent features, 
such as a dry ditch or a low spot in a farm field, to satisfy a 
continuous surface connection. Third, in their most recent 
implementation memo the agencies completely disregard Justice Alito's 
direction that adjacent wetlands need to be ``indistinguishable'' from 
a WOTUS. Gutting the meaning behind this consequential term greatly 
expands the regulatory reach afforded to the agencies. Finally, it is 
clear that the agencies want to continue a case-by-case regulatory 
regime that is akin to how the significant nexus test operated. 
Considering all of this in combination, it begs the very important 
question: As a practical matter, how is this fundamentally different 
from the significant nexus test that the Court struck down? After 
Sackett, many of us in the WAC community expressed concern that the 
agencies were going to creatively compile polices that achieved the 
same goals as the significant nexus test. Unbelievably, it seems that 
is exactly what is transpiring.
                         Cooperative Federalism
    Cooperative federalism is one of the clear objectives of the CWA. 
Section 101(b) of the CWA states that it is Congressional policy to 
preserve the primary responsibilities and rights of states to prevent, 
reduce, and eliminate pollution, to plan the development and use of 
land and water resources, and to consult with the Administrator with 
respect to the exercise of the Administrator's authority under the CWA. 
Congress was emphatic that the states have a role to play in protecting 
our nation's water. This means that there is a clear point where 
federal jurisdiction ends and state jurisdiction begins. In the past, 
we have seen regulatory definitions of WOTUS, such as the Obama 
Administration's rule, that would have usurped state's authority--
thereby violating one of the clear intentions of the law. It is 
important that this balance is preserved.
    However, the uncertainty as to where the jurisdictional line lies 
makes it very difficult for states to understand what is under their 
authority. We have heard from leadership of the Environmental Council 
of the States and directly from many individual states that they share 
the exact same concerns that WAC has articulated over the last year. We 
have heard members of the environmental community reference ``gap 
waters'' that exist in a post-Sackett world, but how are they able to 
identify those? The agencies have not provided a clear interpretation 
of relatively permanent or continuous surface connection, have not 
offered the secret implementation guidance and are flouting the 
decision from Sackett. Again, how can states stand up a regulatory 
program with all these critical pieces missing?
                               Conclusion
    Given the need for clear regulations to protect water resources, it 
is unacceptable that 1.5 years since the Sackett decision and more than 
a year after the agencies finalized their revised 2023 WOTUS rule, the 
agencies continue to mislead Congress and the public, slow-walk 
compliance with the Sackett decision, and hold project proponents and 
states hostage in regulatory limbo by failing to make decisions. As a 
result of the uncertainty, our nation's job creators, small businesses, 
farmers, landowners, and even states remain in the dark about how the 
rule is being implemented. This is especially concerning given the 
serious criminal and civil penalties for even negligent CWA violations, 
such as simply digging in the wrong place.\7\ This represents a total 
failure of leadership and lack of government transparency.
---------------------------------------------------------------------------
    \7\ 33 U.S.C. Sec. 1319(c)-(d).

    Mr. Rouzer. Mr. Messerly.

    TESTIMONY OF VINCENT E. MESSERLY, PRESIDENT, STREAM AND 
 WETLANDS FOUNDATION, ON BEHALF OF THE NATIONAL ASSOCIATION OF 
                         HOME BUILDERS

    Mr. Messerly. Good morning, Chairman Rouzer, Ranking Member 
Napolitano, and members of the subcommittee. I appreciate the 
opportunity to appear before you today on behalf of the 
National Association of Home Builders.
    My name is Vince Messerly. I am president of the Stream and 
Wetlands Foundation, based in Lancaster, Ohio, and we are a 
mitigation bank sponsor and in-lieu fee program sponsor.
    During the past year, the implementation of the revised 
WOTUS rule post-Sackett has been a tremendous letdown for 
homebuilders and wetland consultants. Particularly, this has 
been frustrating on two fronts: The agencies are not faithfully 
adhering to the Supreme Court's holdings, and the regulated 
public has been stiff-armed in the implementation guidance.
    We must be clear, Sackett was not a controversial decision. 
All nine Justices agreed that the agencies exceeded their 
Federal authority. The ``significant nexus'' test clearly 
overstepped the Clean Water Act.
    For decades, NAHB has advocated for a clear and predictable 
WOTUS. Housing production is linked to successful permitting. 
As a mitigation banker, I work in partnership with homebuilders 
to navigate the Clean Water Act. Our purpose is twofold: 
safeguarding the environment, while allowing the creation of 
housing.
    Housing attainability is at an all-time record low. 
According to NAHB's ``Priced Out'' study, nearly 80 percent of 
households are unable to afford the median price of a new home. 
The picture becomes more stark when you consider that for every 
$1,000 increase in a new home's price, an additional 106,000 
households are priced out of the market.
    Uncertainty and delays in permitting, especially as it 
relates to WOTUS, needlessly increase housing costs and turns 
the American Dream into just that--only a dream.
    Here is how the EPA and the Army Corps missed the mark on 
the revised WOTUS rule.
    Instead of relying on the ``significant nexus'' test, the 
agencies are now relying on undefined regulatory terms 
``relatively permanent waters'' and ``continuous surface 
connections.'' They left these terms undefined in the preamble 
before and after the Sackett decision. These undefined terms 
are being used to connect isolated wetlands to WOTUS via 
unregulated streams or features such as ditches, swales, pipes, 
et cetera.
    This has morphed into a game of Twenty Questions for 
homebuilders and other project applicants asking: How far away 
is just too far to document connectivity? The uncertainty and 
confusion are having significant impacts on the homebuilding 
and infrastructure projects. Based on the agencies' 10 
coordination memos, we can gather 195 feet is a relatively 
short distance and could be used to determine jurisdiction, 
while in another example 2 miles away is just too far.
    The Court was clear: To assert jurisdiction, a wetland must 
be adjacent to WOTUS. And to be adjacent, wetlands must be 
indistinguishable from the waters of the United States, meaning 
there must be no clear demarcation. Yet the agencies are 
tracing connectivity between features that are clearly 
distinguishable.
    Last December, Congressman Duarte shared before the 
subcommittee during a hearing with Michael Connor of the Army 
Corps of Engineers his personal experience with swales being 
wrongly used to establish connectivity.
    As for transparency, during the same hearing, Mr. Connor 
said that the agencies' implementation guidance will be a 
public process. Unfortunately, that has not manifested. The 
agencies issued a final post-Sackett rule invoking the APA 
``good cause'' exemption, which precluded public comments 
because it was deemed unnecessary.
    Given that our members are unclear on the WOTUS regs, NAHB 
has sent a FOIA request to the Army Corps requesting 
implementation guidance. Over 6 months later, NAHB finally 
received a formal response with reams of redacted information, 
and some of the only unredacted information we received were 
multiple copies of the same slide deck used for public 
seminars.
    Regrettably, these webinars were one-sided. We were invited 
to participate, but our lingering questions surrounding WOTUS 
implementation were completely sidestepped.
    Moreover, during a March 22nd stakeholder meeting with NAHB 
and others, EPA was asked whether their coordination memos were 
nationally binding. This is a critical issue because, under the 
APA, nationally binding documents must be open for public 
comment. As we tried to proceed for an answer, the EPA simply 
ended the conversation.
    To boost housing production and improve affordability, the 
residential construction industry needs a clear and predictable 
section 404 permitting process. This predictability can be 
achieved if Congress codifies the definitions of ``relatively 
permanent waters'' and ``continuous surface connections'' or, 
alternatively, tells the regulated community what features do 
not fall under these definitions.
    Thank you again for the opportunity. We look forward to 
working with you, and I am glad to answer questions.
    [Mr. Messerly's prepared statement follows:]

                                 
   Prepared Statement of Vincent E. Messerly, President, Stream and 
  Wetlands Foundation, on behalf of the National Association of Home 
                                Builders
                              Introduction
    Chairman Rouzer, Ranking Member Napolitano, and members of the 
Subcommittee, I appreciate the opportunity to appear before you today 
on behalf of the National Association of Home Builders (``NAHB''). My 
name is Vince Messerly, and I am the president of the Streams and 
Wetlands Foundation, a non-profit wetlands mitigation bank based in 
Ohio. I also serve as Vice Chairman of NAHB's Environmental Issues 
Committee.
    NAHB's membership includes more than 140,000 member firms, involved 
in the home building, remodeling, multifamily construction, land 
development, property management, subcontracting and light commercial 
construction industries. NAHB members construct approximately 80% of 
all new housing in the United States each year.
    As a mitigation banker, I have the opportunity to collaborate hand-
in-glove with home builders and developers to accomplish two bedrock 
goals: creating housing opportunities and safeguarding the environment. 
Our team develops and monitors wetland bank projects to ensure high 
quality aquatic resources are restored and receive long-term 
protection. Builders undergoing the Clean Water Act (CWA) 404 
permitting process purchase wetland bank credits to offset their 
construction activity on wetlands. This dynamic has supported over 
1,500 permit applicants, facilitating an estimated $3 billion in 
economic development and infrastructure projects, while also 
protecting, enhancing, or restoring more than 4,000 acres of wetlands, 
riparian corridors, and upland buffers.
    Because of this experience, I have a unique understanding of the 
CWA regulatory process and how the inefficiencies impact home building 
in the real world. The Sackett Supreme Court decision crystallized the 
intent of the CWA and corrected the goalposts. On September 8th, 2023, 
the U.S. Environmental Protection Agency and U.S. Army Corps of 
Engineers (hereafter ``the Agencies'') released their revised 
definition of the Clean Water Act term ``waters of the United States'' 
(``WOTUS'') to comply with Sackett. As the one-year mark has passed, 
NAHB regrets to share with the Subcommittee that the revised rule's 
implementation has been a letdown. The Agencies failed on two fronts--
WOTUS is not being implemented according to the Supreme Court's 
holdings, and the understanding of the regulatory process continues to 
be as clear as mud.
    The residential construction industry, and others in the regulated 
community, continue to experience prolonged and opaque permitting 
processes, which makes it more difficult for home builders to provide 
homes or apartments at a price point attainable for most households. 
Consequently, builders and developers operating under an unpredictable 
regulatory environment will make home building inefficient and costly, 
ultimately exacerbating our nation's housing crisis.
                         Housing Attainability:
    Before examining Sackett and the Agencies' WOTUS implementation, it 
is crucial to contextualize the immense housing challenges Americans 
are experiencing. Predictability and certainty in the CWA 404 
permitting regime are crucial because housing production is linked to 
successful permitting. Our nation is facing a fever-pitched housing 
attainability crisis. The root cause of this crisis is 
straightforward--there is a dearth of supply in the single-family and 
multifamily markets, both for-rent and for-sale. NAHB's economists 
estimate that there is over a 1.5-million-unit housing shortage in the 
U.S.\1\ Unfortunately, this has forced a majority of Americans to 
remain on the sidelines, unable to access the American Dream of 
homeownership and the ability to build economic success.
---------------------------------------------------------------------------
    \1\ Single-Family Starts will Rise in 2024 but Supply-Side 
Challenges Persist, https://www.nahb.org/news-and-economics/press-
releases/2024/02/single-family-starts-will-rise-in-2024.
---------------------------------------------------------------------------
    According to NAHB's ``Priced Out Estimates'' study for 2024, 77% of 
households are unable to afford the median price of a new home which 
sits at $495,750.\2\ Lowering costs is pivotal because prospective 
homebuyers are highly elastic to price changes. The study further 
demonstrates that for every $1,000 increase in the median price of a 
new home, an additional 106,031 households would be priced out of the 
market. Indeed, constrained inventory is fueling the housing 
affordability crisis.
---------------------------------------------------------------------------
    \2\ Na Zhao, Nearly 77% of U.S. Households Cannot Afford a Median-
Priced New Home, https://www.nahb.org/-/media/NAHB/news-and-economics/
docs/housing-economics-plus/special-studies/
2024/special-study-households-cannot-afford-a-median-priced-new-home-
april-2024.pdf?rev=cb6f4
f7d507341cb9ece97b90b6709c3.
---------------------------------------------------------------------------
    Permitting delays and regulatory uncertainty needlessly increases 
housing costs by reducing housing supply. As someone who has navigated 
the CWA 404 wetland permitting process, regulators do not need to deny 
a permit to halt a housing project, simply delaying the process, or 
worse failing to provide clear regulatory guidance is more than enough 
to cause a developer or builder to abandon a project--no matter how 
desperately needed housing might be in a community.
    The challenges surrounding WOTUS permitting become stark when you 
consider the time and cost to obtain a CWA section 404 permit. A 2002 
study found that it takes an average of 788 days and, adjusted for 
inflation, $471,836 to obtain an individual permit and 313 days and 
$50,233 for a ``streamlined'' nationwide permit. Over $1.7 billion is 
spent annually by the private and public sectors obtaining wetlands 
permits.\3\ Importantly, these ranges do not consider the cost of 
mitigation, which can be exorbitant. When considering these 
implications--from housing attainability to CWA section 404 
permitting--it is clear why we need to have proper implementation of 
the WOTUS rule, which is why Sackett sought to address long-running 
concerns over federal overreach.
---------------------------------------------------------------------------
    \3\ Sunding, D., & Zilberman, D. (2002). The economics of 
environmental regulation by licensing: An assessment of recent changes 
to the wetland permitting process. https://digitalrepository.unm.edu/
nrj/vol42/iss1/5/
---------------------------------------------------------------------------
                          The Sackett Decision
    In May 2023, the United States Supreme Court decided the case 
Sackett v. Env't Prot. Agency.\4\ The Sacketts own a 0.63-acre vacant 
lot in a residential subdivision near Priest Lake, Idaho. To the north, 
the lot is bounded by a county road, and on the other side of the road 
there is a drainage ditch. To the south, the lot is bounded by another 
road and a row of houses sit south of that road; those houses have 
frontage on Priest Lake.
---------------------------------------------------------------------------
    \4\ Sackett v. Env't Prot. Agency, 598 U.S. 651 (2023).
---------------------------------------------------------------------------
    The government asserted jurisdiction over a wetland area on the 
Sacketts' lot pursuant to the Clean Water Act. The question in the 
Sackett case was whether that wetland area was a ``water of the United 
States'' and therefore jurisdictional. All nine justices agreed that 
the government had improperly asserted jurisdiction over the wetland, 
and five justices established a test for determining when the 
government may assert Clean Water Act jurisdiction over wetlands.
    The Court began its opinion by explaining that the Clean Water Act 
can have ``crushing'' consequences on property owners, even those that 
inadvertently contravene its requirements.\5\ (The EPA threatened 
Michael and Chantell Sackett with fines of $40,000 per day because they 
unknowingly backfilled their property). The Court then provided a 
history of its previous CWA cases. In United States v. Riverside 
Bayview Homes, Inc.\6\, the Court allowed the Corps of Engineers to 
assert jurisdiction over wetlands that actually abutted a navigable 
water.\7\ Then in Solid Waste Agency of Northern Cook Cty. v. Army 
Corps of Engineers \8\ (SWANCC), the Court held that isolated ponds not 
adjacent to open waters did not fall under the jurisdiction of the CWA. 
Furthermore, the Sackett Court explained that after the SWANCC decision 
``[t]he agencies never defined exactly what they regarded as the `full 
extent of their authority.' They instead encouraged local field agents 
to make decisions on a case-by-case basis. What emerged was a system of 
`vague' rules that depended on `locally developed practices.' '' \9\
---------------------------------------------------------------------------
    \5\ Sackett, 598 U.S. at 660.
    \6\ United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 
(1985).
    \7\ Sackett, 598 U.S. at 665.
    \8\ Solid Waste Agency of Northern Cook Cty. v. Army Corps of 
Engineers, 531 U.S. 159 (2001).
    \9\ Sackett, 598 U.S. at 665-66.
---------------------------------------------------------------------------
    Finally, the Sackett Court addressed Rapanos v. United States.\10\ 
In Rapanos, no opinion garnered five votes. In describing the Rapanos 
plurality opinion, the Sackett Court wrote that the CWA:
---------------------------------------------------------------------------
    \10\ Rapanos v. United States, 547 U.S. 715 (2006).

        May fairly be read to include only those wetlands that are ``as 
        a practical matter indistinguishable from waters of the United 
        States,'' such that it is ``difficult to determine where the 
        `water' ends and the `wetland' begins.'' 547 U.S., at 742, 755, 
        126 S.Ct. 2208 (emphasis deleted). That occurs when wetlands 
        have `a continuous surface connection to bodies that are 
        `waters of the United States' in their own right, so that there 
        is no clear demarcation between `waters' and wetlands.' '' \11\
---------------------------------------------------------------------------
    \11\ Sackett, 598 U.S. at 678 (quoting Rapanos).

    Additionally, in Rapanos, a concurring opinion determined that 
``jurisdiction under the CWA requires a `significant nexus' between 
wetlands and navigable waters and that such a nexus exists where `the 
wetlands, either alone or in combination with similarly situated lands 
in the region, significantly affect the chemical, physical, and 
biological integrity' of those waters.'' \12\
---------------------------------------------------------------------------
    \12\ Id. at 667 (quoting J. Kennedy's concurring opinion in 
Rapanos).
---------------------------------------------------------------------------
    As the Sackett Court explained, even after three Supreme Court 
opinions addressing the jurisdiction of the CWA many property owners 
were in a ``precarious position because it is often difficult to 
determine whether a particular piece of property contains waters of the 
United States.'' \13\
---------------------------------------------------------------------------
    \13\ Id. at 669 (internal quotations omitted).
---------------------------------------------------------------------------
    After analyzing the wording of the CWA and these three previous 
cases, the Court ruled that the Sacketts' wetlands were not 
jurisdictional. The Court rejected the ``significant nexus'' test and 
clarified that for the government to assert jurisdiction over a wetland 
that wetland must be adjacent to a ``water of the United States.'' And 
to be adjacent, wetlands must be ``indistinguishably part of a body of 
water that itself constitutes ``waters'' under the CWA.'' \14\ 
Moreover, ``[w]etlands that are separate from traditional navigable 
waters cannot be considered part of those waters, even if they are 
located nearby.'' \15\ Thus, the Court held that:
---------------------------------------------------------------------------
    \14\ Sackett, 598 U.S. at 676.
    \15\ Id. at 20

        The CWA extends to only those wetlands that are ``as a 
        practical matter indistinguishable from waters of the United 
        States.'' Rapanos, 547 U. S., at 755 (plurality opinion) 
        (emphasis deleted). This requires the party asserting 
        jurisdiction over adjacent wetlands to establish ``first, that 
        the adjacent [body of water constitutes] . . . `water[s] of the 
        United States,' (i.e., a relatively permanent body of water 
        connected to traditional interstate navigable waters); and 
        second, that the wetland has a continuous surface connection 
        with that water, making it difficult to determine where the 
        `water' ends and the `wetland' begins.'' Id., at 742.'' \16\
---------------------------------------------------------------------------
    \16\ Sackett, 598 U.S. at 678-79.

                           Sackett Aftermath
    Following the Sackett decision, the Agencies immediately instituted 
a nationwide freeze in processing any requested jurisdictional 
determination (JD), or issuance of CWA 404 wetlands permits based upon 
already issued AJDs until the Agencies could amend (i.e., fix) their 
Revised Definition of Waters of the United States \17\ rule to comply 
with the Sackett ruling. The resulting three-month suspension of the 
CWA 404 permitting program halted home building and infrastructure 
projects around the country. Assistant Secretary of the Army Civil 
Works Mr. Michael Connor announced over 4,000 projects seeking approved 
jurisdictional determinations (AJDs) were backlogged before this 
Subcommittee on December 5th, 2023.\18\
---------------------------------------------------------------------------
    \17\ Revised Definition of ``Waters of the United States,'' 88 Fed. 
Reg. 3004 (Jan. 18, 2023).
    \18\ Water Resources Development Acts: Status of Past Provisions 
and Future Needs: House Water Resources and Environment Subcommittee of 
the Transportation and Infrastructure Committee, 118th Cong. (2023). 
https://transportation.house.gov/calendar/eventsingle.aspx?
EventID=406974
---------------------------------------------------------------------------
    NAHB members reported that the Agencies' staff encouraged project 
proponents, who were seeking AJDs, to instead agree to accept 
preliminary jurisdictional determinations (PJDs) to avoid delays in 
Corps field staff processing AJDs, which compounded ongoing confusion 
over the Sackett ruling. It is crucial to highlight--when a property 
owner accepts a PJD, they are agreeing to not have the Agencies make a 
CWA jurisdictional determination, and instead presume all aquatic 
features (i.e., wetlands, streams, drainage ditch, pond, etc.) are 
jurisdictional and therefore require a permit. As a result, landowners 
were coaxed into surrendering to the PJD route, which is more likely to 
trigger additional permitting requirements, including being forced to 
pay for compensatory mitigation.
    Nearly three months after Sackett, the Agencies released regulatory 
text amendments amendment to the WOTUS rule on August 13, 2023 \19\, 
and purported to have complied with the Sackett opinion. Surprisingly, 
the actual changes to the regulatory text of the WOTUS definition were 
quite limited. To highlight the major change--the Agencies removed 
references to the ``significant nexus'' test under three of the rule's 
five jurisdictional categories--tributaries, adjacent wetlands, and 
Intrastate lakes and ponds.\20\ For each of those three jurisdictional 
categories where the ``significant nexus'' test was removed, what now 
remains is an equally confusing and vague standard. This new test 
requires federal regulation if the water feature in question is 
``relatively permanent,'' or has ``continuous surface connection'' 
between itself and a downstream jurisdictional feature--both of which 
were left undefined.
---------------------------------------------------------------------------
    \19\ Amendments to 40 CFR 120.2 and 33 CFR 328.3, https://
www.epa.gov/system/files/
documents/2023-08/
Regulatory%20Text%20Changes%20to%20the%20Definition%20of%20Waters
%20of%20the%20United%20States%20at%2033%20CFR%20328.3%20and%2040%20CFR
%20120.2.pdf.
    \20\ Id. at 3
---------------------------------------------------------------------------
    On September 8, 2023, the Agencies issued their Revised Definition 
of ``Waters of the United States''; Conforming (hereafter ``the 
Conforming Rule'').\21\ Frustratingly, the Agencies again refused to 
define ``continuous surface connection'' or ``relatively permanent'' 
despite the Sackett Court's repeated admonishment for expansive 
interpretations of regulatory authority to regulate non-navigable 
isolated wetlands as ``adjacent wetlands.'' In a deeply disturbing 
choice, the public and regulated industries were intentionally 
prohibited from commenting on the rule or the flaws with the existing 
preamble. The Conforming Rule was finalized using the APA ``good 
cause'' exemption \22\ because the Agencies determined public comment 
was unnecessary. As a matter of government transparency and public 
participation, this is highly problematic.
---------------------------------------------------------------------------
    \21\ 88 Fed. Reg. 61964 (Sept. 8 2023).
    \22\ Congressional Research Service: The Good Cause Exception to 
Notice and Comment Rulemaking: Judicial Review of Agency Action (2019). 
https://crsreports.congress.gov/product/pdf/R/R44356.
---------------------------------------------------------------------------
    Because the Agencies used the ``good cause'' exemption, they 
continued to rely on the preamble from their January 2023 rulemaking. 
For example, they asserted within the preamble the concept of 
``relatively permanent'' when determining whether a feature meets the 
``tributary'' jurisdictional category, which stretches beyond the 
Supreme Court's understanding of the concept (i.e., free flowing 
rivers, streams, creeks, etc.). This means the Agencies can claim 
evidence of a ``relatively permanent tributary'' by simply being ``able 
to trace evidence of a flow path downstream''.\23\
---------------------------------------------------------------------------
    \23\ 88 Fed. Reg. 3079 (January 18, 2023).
---------------------------------------------------------------------------
    This evidence includes ephemeral flows \24\, which is flowing water 
from a ``concentrated period of back-to-back precipitation events.'' 
\25\ Furthermore, the Agencies claim ``a tributary may flow through 
another stream that flows infrequently, and only in direct response to 
precipitation, and the presence of that stream is sufficient to 
demonstrate that the tributary flow to a paragraph (a)(1) water.'' \26\ 
Perhaps one of most egregious assertions within the preamble concerns 
the concept of ``continuous surface connection'' in the context of 
jurisdictional tributaries is that ``[t]ributaries are not required to 
have a surface flowpath all the way down to the paragraph (a)(1) water 
and the flowpath may include subsurface flow.'' \27\
---------------------------------------------------------------------------
    \24\ Id. at 3084.
    \25\ Id. at 3086, 3087.
    \26\ Id. at 3084.
    \27\ Id. at 3084.
---------------------------------------------------------------------------
    The Sackett decision made clear the Agencies only have authority 
under the CWA to take jurisdiction over ``relatively permanent'' 
waterbodies and wetlands that are indistinguishable from those waters. 
The Conforming Rule intentionally failed to provide any regulatory 
definition of what constitutes a ``relatively permanent'' waterbody and 
ignores the concept of ``indistinguishability.'' Unlike the WOTUS 
regulatory definition finalized under Navigable Waters Protection Rule 
\28\, the Conforming Rule neglects to exclude from federal jurisdiction 
all ``ephemeral features,'' which only possess water following a 
rainfall event, but instead claims within the preamble that ephemeral 
features could have ``relevantly permanent'' flow.
---------------------------------------------------------------------------
    \28\ 85 Fed. Reg. 22250 (April 21, 2020).
---------------------------------------------------------------------------
    The Conforming Rule rendered more confusion and uncertainty in the 
residential construction industry. The Agencies refused to provide a 
clear regulatory definition of either ``relatively permanent'' 
waterbodies, or ``continuous surface connection'', and avoided 
collaboration with the public on implementation guidance. In response, 
NAHB submitted a Freedom of Information Act (``FOIA'') on October 11th, 
2023, request seeking information concerning how the Agencies were 
interpreting and enforcing the final Conforming Rule in the field. 
Specifically, the NAHB FOIA request sought:
      Copies of administrative guidance documents,
      Training materials provided to Corps district offices,
      Implementation guidance from the Agencies headquarters 
staff to Corps district offices, and
      Questions from all Corps district offices to Agencies 
headquarters staff concerning implementation of the Conforming Rule.

    Despite FOIA's statutory deadline that requires a response within 
30 days, over six months passed before NAHB received a formal response. 
The Agencies' FOIA response included 1,500 pages--over half of which 
was redacted citing a FOIA exemption for internal deliberative 
documents. Among the unredacted documents were multiple copies of the 
same public webinars and factsheets. This unsatisfactory response 
forced NAHB to submit a FOIA administrative appeal to the Agencies 
concerning the heavily redacted documents and liberal use of the 
``Exemption 5''.\29\ Specifically, NAHB is challenging the Agencies' 
assertion that documents related to the implementation or enforcement 
of a final rule can still be considered deliberative and internal.
---------------------------------------------------------------------------
    \29\ Department of Justice: FOIA Guide, 2004 Edition: Exemption 5. 
https://www.justice.gov/archives/oip/foia-guide-2004-edition-exemption-
5.
---------------------------------------------------------------------------
    Finally, in June 2024, the Agencies updated \30\ the coordination 
memorandum which was first released in September, 2023.\31\ Together 
those memos string together a process by which the Corps and EPA would 
coordinate jurisdictional determinations. They do not provide any 
clarity to the regulated community concerning when a feature is or is 
not a ``water of the United States.'' Instead, the memos established an 
internal elevation process between Corps districts, EPA Regional 
Offices, and the Agencies headquarters staff to review before 
finalizing any approved jurisdictional determinations (AJDs) for either 
adjacent wetlands or intrastate lakes and ponds. Not surprisingly, 
several of the pending AJDs subject to internal elevation and review by 
Agencies headquarters staff concern interpreting and applying the 
undefined concepts of ``relevantly permanent'' and ``continuous surface 
connection'' when making jurisdictional determinations for non-
navigable adjacent wetlands, ephemeral tributaries, and isolated ponds.
---------------------------------------------------------------------------
    \30\ Michael L. Connor, Assistant Secretary of the Army; Bruno 
Pigott, Acting Assistant Administrator U.S. Environmental Protection 
Agency, Extension of Joint Coordination Memoranda to the Field Between 
the U.S. Department of the Army, U.S. Army Corps of Engineers and the 
U.S. Environmental Protection Agency (June 25, 2024).
    \31\ Michael L. Connor, Assistant Secretary of the Army; Radhika 
Fox, Assistant Administrator U.S. Environmental Protection Agency, 
Joint Coordination Memorandum to the Field Between the U.S. Department 
of the Army, U.S. Army Corps of Engineers (Corps) and the U.S. 
Environmental Protection Agency (EPA) (Sept. 27, 2023).
---------------------------------------------------------------------------
           Examples of the Agencies' Overreach After Sackett
    It is unfortunate that the Agencies have returned to the playbook 
that they used after the SWANCC decision. They are encouraging ``local 
field agents to make decisions on a case-by-case basis.'' And, to no 
surprise, what has emerged is ``a system of `vague' rules.'' \32\ The 
Agencies are asserting federal jurisdiction over isolated wetlands by 
relying upon man-made non-jurisdictional features like roadside 
drainage ditches, pipes, culverts, and swales. The Agencies claim these 
theoretical connections are enough to claim jurisdiction over isolated 
wetlands, even when it is clear where the jurisdictional water ends, 
and the wetland begins.\33\
---------------------------------------------------------------------------
    \32\ Sackett, 598 U.S. at 665-66.
    \33\ Sackett, 598 U.S. at 678-79.
---------------------------------------------------------------------------
    For example, in Corpus Christi, Texas, the Agencies have asserted 
jurisdiction over a wetland that is connected to a jurisdictional water 
only by a non-jurisdictional 115-foot-long ephemeral drainage 
ditch.\34\ Moreover, the ditch runs through two culverts before 
reaching the jurisdictional waterbody. The Agencies provide that 
wetlands can be considered adjacent ``when a channel, ditch, swale, 
pipe, or culvert (regardless of whether such feature would itself be 
jurisdictional) serves as a physical connection that maintains a 
continuous surface connection between an adjacent wetland and a 
relatively permanent water.'' \35\ In this matter, the Agencies 
asserted jurisdiction because ``[t]he 115-foot length of the physical 
connection via the ditch and the culverts is relatively short.'' \36\
---------------------------------------------------------------------------
    \34\ Russel Kaiser, U.S. Environmental Protection Agency; Milton 
Boyd, U.S. Department of the Army, Memorandum on SWG-2023-00284 (June 
25, 2024).
    \35\ Id. at 2.
    \36\ Id. at 4.
---------------------------------------------------------------------------
    Yet, in Sackett the Court held that the CWA extends to ``only'' 
those wetlands that are ``as a practical matter indistinguishable from 
waters of the United States.'' \37\ Furthermore, it stated that a 
wetland cannot be considered part of water of the United States ``even 
if they are located nearby.'' \38\ In the above example, the wetland in 
question is clearly distinguishable from the water of the United 
States--there is no evidence that it is difficult to determine where 
the waterbody ends and the wetland begins. Additionally, the Agencies 
asserted jurisdiction because the distance between the wetland and 
waterbody is ``relatively short''--in other words ``nearby.'' A clear 
contravention of Sackett.
---------------------------------------------------------------------------
    \37\ Sackett, 598 U.S. at 678. (emphasis added).
    \38\ Id. at 676.
---------------------------------------------------------------------------
    Similarly, in Camden-Wyoming, Delaware, the Agencies asserted 
jurisdiction over two wetlands--Wetland #6 and Wetland #8.\39\ Wetland 
#6 is 70 feet away from a jurisdictional waterbody and connected to it 
by a non-jurisdictional 70-foot pipe. Wetland #8 is 350 feet away from 
a jurisdictional waterbody and connected to it by a non-jurisdictional 
350-foot swale.\40\
---------------------------------------------------------------------------
    \39\ Russel Kaiser, U.S. Environmental Protection Agency; Milton 
Boyd, U.S. Department of the Army, Memorandum on NAP-2023-01223 (June 
25, 2024).
    \40\ Id. at page 3.
---------------------------------------------------------------------------
    Again, the Agencies misread Sackett. They implausibly assert that 
``Under Sackett, the word `indistinguishable' is not a separate element 
of adjacency, nor is it alone determinative of whether adjacent 
wetlands are ``waters of the United States''; rather, the term (among 
others the Supreme Court uses) informs the application of the 
``continuous surface connection'' requirement.'' \41\ However, the 
Court stated, ``In sum, we hold that the CWA extends to only those 
wetlands that are `as a practical matter indistinguishable from waters 
of the United States.' '' \42\ This is not an offhand comment or a 
minor point, but the ``holding'' of the Sackett decision. And it 
provides that the CWA extends ``only'' to those wetlands that are 
``indistinguishable'' from jurisdictional waters. With respect to 
Wetland #6 there is a wetland, then a pipe and then a jurisdictional 
water. Clearly, the Agencies could distinguish between the wetland and 
the jurisdictional water because there is a 70-foot pipe between them. 
Similarly, with respect to Wetland #8 the Agencies could distinguish 
where the wetland ended, and the jurisdictional water began--because 
there is a 350-foot swale between them. Finally, with respect to both 
wetlands the Agencies claim the distances to the jurisdictional waters 
are ``relatively short.'' But as the Sackett Court stated, even 
wetlands that are ``nearby'' cannot be considered part of the 
jurisdictional water.\43\
---------------------------------------------------------------------------
    \41\ Id. at 2.
    \42\ Sackett, 598 U.S. at 678.
    \43\ Sackett, 598 U.S. at 676.
---------------------------------------------------------------------------
    Lastly in Snow, Ohio, the Agencies have asserted jurisdiction over 
a wetland that is connected to a jurisdictional waterbody through a 95-
foot non-jurisdictional stream and then 100 feet of a second wetland 
that abuts the jurisdictional waterbody.\44\ As with the other examples 
above, the Agencies pay no mind to Sackett's holding that to assert 
jurisdiction over a wetland, the Agencies must prove that it is 
indistinguishably part of the jurisdictional water body. In this 
example, the Agencies could distinguish the wetland in question, a non-
jurisdictional stream, a second wetland, and the jurisdictional 
waterbody.\45\ In violation of Sackett, the Agencies declare that 195 
feet is a ``relatively short'' distance.\46\
---------------------------------------------------------------------------
    \44\ Stacey Jensen, U.S. Environmental Protection Agency; Milton 
Boyd, U.S. Department of the Army, Memorandum on LRB-2023-00451 (Sept. 
3, 2024).
    \45\ Id. at 4.
    \46\ Stacey Jensen, U.S. Environmental Protection Agency; Milton 
Boyd, U.S. Department of the Army, Memorandum on LRB-2023-00451 
(September 3, 2024).
---------------------------------------------------------------------------
    While these are only four examples, it is evident that the Agencies 
are not faithfully implementing the Court's directives. If home 
builders and the residential construction industry cannot understand 
the regulatory framework under which to operate, how can we expect to 
achieve housing production to address our national affordability 
crisis? Safeguarding the environment and building homes do not have to 
be mutually exclusive.
                               Conclusion
    Thank you, Chairman Rouzer and Ranking Member Napolitano, for 
convening this important hearing and allowing NAHB to share our views 
on how the Agencies' WOTUS implementation post-Sackett is impacting our 
industry's ability to increase the production of quality, affordable 
housing. NAHB stands ready to work with you and members of the 
Subcommittee to achieve thoughtful, effective policies to address these 
concerns and expand the availability of attainable, affordable housing 
for all Americans.
    NAHB commends Chairman Rouzer and this Subcommittee for 
spearheading H.R. 7023, the Creating Confidence in Clean Water 
Permitting Act. This was a welcome step in improving the process. As we 
continue to move forward, NAHB urges Congress to consider the following 
improvements to the CWA Section 404 permitting:
      If the Agencies continue to refuse to provide regulatory 
definitions for either ``relatively permanent'' water (RPW) or 
``continuous surface connection'' (CSC), Congress must step in and 
either define these terms, or conversely identify features that cannot, 
by statute, be considered either a RPW or CSC such as:

      +  Ephemeral features that only flow in direct response to a 
rainfall event cannot be an RPW.

      +  Man-made features (i.e., pipes, ditches, culverts, etc.) used 
to connect otherwise isolated wetlands to jurisdictional features.

      +  Groundwater, including shallow subsurface flow.

      Obtaining AJDs is an essential step during CWA 404 
permitting process. Congress must ensure that the Agencies prioritize 
responding to AJD requests. As stated in this written testimony, the 
regulated community is being maneuvered toward the PJD route. This is 
concerning because property owners are surrendering their land to 
federal regulation in an effort to receive quicker permitting. PJDs are 
also non-binding which means that they are not appealable nor subject 
to judicial review. Homebuilders must accept their permit as is or 
refuse the permit and abandon their project--costing upwards of 
hundreds of thousands of dollars in sunk development costs.

      The past three presidential administrations have turned 
project proponents into regulatory ping pong victims. With each 
administration crafting their own WOTUS rule, home builders who may 
have held AJDs from a prior administration, have had their validity 
denied not because of changes in the environmental conditions found on 
their property, but rather due to court rulings or changes in 
administration's priorities. NAHB recommends that regulatory changes to 
the definition of WOTUS should not invalidate an AJD during its 
lifespan. Further, we recommend that AJDs be durable for 10 years, as 
envisioned in the Creating Confidence in Clean Water Permitting Act.

    I appreciate the opportunity to discuss these critical issues.

    Mr. Rouzer. Thank you very much.
    And I thank all of you for your great testimony.
    Ms. Pokon, I appreciated hearing your testimony about the 
important role that States play in regulating and implementing 
water-quality standards. And as mentioned in my own opening 
statement, this is the key part of the Clean Water Act that 
many people choose to ignore.
    What has the State of Alaska's experience been post-
Sackett, and what are you hearing from the Army Corps of 
Engineers in Alaska?
    Ms. Pokon. Thank you, Chairman.
    We certainly have been watching the 401 certifications come 
through to kind of get a sense for if there has been a change 
in the Army Corps of Engineers' implementation of the 404 
program. And, not seeing any clear indicators, we have met with 
our district office. The message that was delivered to us was 
essentially that, in Alaska, nothing has changed. Nothing.
    They did tell us--we pressed for some specifics, like, are 
there some general principles that are being applied? Is there 
something you can share with us about what the standard is? And 
it sounded like--well, they repeated that they are determining 
it on a case-by-case basis.
    They did share that, for the North Slope of Alaska, which 
is an area about the size of Utah, that they consider much of 
that area to be jurisdictional because of permafrost wetlands. 
Now, those wetlands aren't forming because of relationship with 
a jurisdictional water, those wetlands are forming because the 
upper layer of permafrost is melting.
    And so, you have this massive area that, just by virtue of 
being a wetland that is adjacent to a wetland that is adjacent 
to a wetland is adjacent to a wetland that is then abutting a 
navigable water body.
    There doesn't seem to be any limit to this contagion, that 
as long as on the surface there is an ecosystem that can be 
characterized as a wetland--there are saturated soils--the 
Corps of Engineers will claim jurisdiction over that.
    They also made some comments that called into question 
whether or not they are even looking for surface water or 
whether or not they are looking for any flow of water to 
indicate connectivity of the water between the wetland and a 
jurisdictional water.
    Mr. Rouzer. Thank you very much. I wish we had more time.
    Ms. Briggs, you talked about the challenges that your 
membership is facing. Of course, agriculture is taking it on 
the chin on any number of fronts that you look at.
    Can you talk a little more specific to that and how this is 
such a challenge for our American farmers who are feeding and 
trying to clothe not only us but the rest of the world?
    Ms. Briggs. Yes. Thank you, Mr. Chairman, for the question.
    And I will remind everyone that food security is national 
security. So, our farmers and ranchers have the most important 
job in the world.
    WOTUS continues to be an issue--the problems that I already 
outlined, the lack of clarity with the rulemaking, and now no 
implementation guidance. They are not giving our members the 
roadmap on how they are expected to follow the law. That is 
really all my members want to know: What is in, and what is 
out?
    But a lot of people like to say, ``Well, farmers have all 
of these exemptions. Isn't that nice? And they don't have to 
comply with the Clean Water Act.'' That is absolutely not true, 
because the exemptions that have been provided are not clear. 
An exemption is only as good as how clear it is.
    So, I don't understand how the agencies are hiding the ball 
on implementation. I don't understand why they will not come 
back and clarify these terms post-Sackett. And our farmers are 
really hurting out there because of it.
    Mr. Rouzer. Yes.
    Mr. Messerly, you touched on regulations and the cost to 
building a home, which obviously translates to cost to 
homebuyer.
    How much extra cost are people paying for when they 
purchase a home just simply due to regulation, beyond just 
WOTUS but WOTUS included?
    Mr. Messerly. Well, thank you, Chairman Rouzer. Good 
question. Cost--and as a mitigation sponsor, we can speak 
towards that.
    So, just as a for-example, in Ohio, the typical applicant 
mitigates at a ratio of two times of what they impacted. A 
simple nationwide permit, which is impacts of less than one-
half acre, would require 1 acre of mitigation. An acre of 
mitigation in Ohio would be about $70,000, on average, 
sometimes a little more, sometimes a little less. So, when you 
apply that to the cost of a small business project or a 
residential construction project, that cost can be 
overwhelming.
    That cost for the mitigation does not include those costs 
that are affiliated with retaining an attorney, an engineer, a 
surveyor, a wetlands biologist, not to mention the time of 
processing the permit. A substantial amount of time passes. 
These are things that the permit applicants have to bear the 
cost of upfront, and that can really be stifling. And by that I 
mean, that is not something they have a loan for. This is 
something they are paying out of pocket until they secure that 
permit and the project can be implemented.
    There are a lot of permit applicants that never get 
submitted. They die before they ever get there just because of 
the overwhelming cost.
    Mr. Rouzer. Yes. Those that scream about affordable 
housing--and we all want the most affordable housing possible--
are the same ones who put all the regulations in place that 
keep it from being affordable.
    Anyhow, just an editorial comment.
    I yield to my good friend, Mrs. Napolitano.
    Mrs. Napolitano. Thank you, Mr. Chair.
    Ms. Rowan, you testified the impacts of the Sackett 
decision are particularly stark in many Western States, such as 
Colorado, where water is both increasingly scarce and vital to 
long-term economic, environmental, and social health of our 
communities.
    I believe that every-State-go-it-alone approach is 
inconsistent with congressional intent on the Clean Water Act 
and will likely result in increased costs and decreased water 
quality available for our communities.
    What are your perspectives? Do you agree?
    Ms. Rowan. Thank you, Ranking Member Napolitano. Yes, we 
agree.
    Colorado's a headwater State, and our water flows to 17 
downstream States, and protecting water quality is very 
important.
    I think an example of that, a recent example, is our work 
with the State of Kansas. We have been working to address 
salinity issues across the Arkansas River--``Our Kansas 
River,'' as they call it in Kansas--on both sides of the State 
line, particularly focused on protecting agriculture.
    Mrs. Napolitano. And my State is currently dependent on 
other upstream States for much of its municipal agriculture and 
industrial water supply.
    I applaud your State's efforts but recognize that not all 
States prioritize or invest in protecting interstate sources of 
water. What is the likely consequence if bordering States face 
different priorities on protecting what are, in essence, shared 
multistate water resources?
    Ms. Rowan. Thank you, Ranking Member Napolitano.
    I think one thing that we have appreciated about Federal 
standards and other parts of the Clean Water Act that we 
implement is that there is a consistent and uniform Federal 
standard and it provides some level of protection.
    I think what we hear from businesses is having a uniform 
standard is good for business, and it provides the certainty 
that the regulated community needs.
    Mrs. Napolitano. Thank you.
    What is the economic impact to American families, 
businesses, and farmers if existing sources of potable water 
fail to be protected, or worse, are eliminated due to neglect, 
destruction, or pollution?
    Ms. Rowan. Thank you.
    I think one of the things that we have been really focused 
on in Colorado is making sure that those impacts don't occur. 
And that is why we were so quick to stand up enforcement policy 
and work to pass this legislation in Colorado.
    Mrs. Napolitano. Thank you.
    I believe the question of who should ultimately be 
responsible for protecting rivers, streams, and wetlands has 
become hyper-politicized, and some parties now are unwilling to 
engage in meaningful conversations involving this decades-old 
issue. You have done a wonderful job on that.
    Yet you discuss the success of your State in negotiating 
with often-competing sectors within your State, including the 
agriculture, water supply, construction industry, and the 
conservation community.
    Any advice for us in Congress to promote a meaningful 
dialogue on this issue?
    Ms. Rowan. Thank you, Ranking Member Napolitano.
    I think we worked incredibly hard on getting common ground 
across a variety of different interest groups, and one of the 
key stakeholders of our process was Colorado's agricultural 
community.
    One of the things that we did in the legislation was to 
adopt the 2020 Navigable Waters Protection Rule related to 
prior converted cropland, which was a big desire by our 
agricultural community.
    We also worked very hard to define exclusions and 
exemptions for irrigation ditches, which are the lifeblood of 
agriculture in Colorado.
    Mrs. Napolitano. Thank you.
    Mr. Chair, I would like to introduce into the record----
    Mr. Rouzer [interrupting]. Without objection.
    Mrs. Napolitano [continuing]. Letters from American Rivers, 
Audubon Society, Clean Water for All, National Wildlife 
Federation, Southern Environmental Law Center, and Protect 
Colorado Water Coalition.
    Mr. Rouzer. Without objection, so ordered.
    [Hon. Napolitano's submissions for the record are on pages 
76-90.]
    Mrs. Napolitano. Thank you.
    I yield back.
    Mr. Rouzer. The gentlelady yields back.
    I now recognize Mr. Bost.
    Mr. Bost. Thank you, Mr. Chairman.
    So, now here we are, a year into the Biden administration's 
new WOTUS ruling, and nothing has changed. There has been no 
regulatory clarity, no real guidance, no communication with the 
public. While the administration may be OK with this, there are 
serious implications for landowners and industry stakeholders.
    Ms. Briggs, you noted in your written testimony that 
landowners can be fined up to $64,000 per day or receive jail 
time for any clean water violation. I will repeat that again: 
$64,000 or jail time. That is not small change for a simple 
mistake or a misunderstanding. That is devastating to any 
landowner or small business.
    Now, Ms. Briggs, from a farming perspective, can you speak 
to the challenges that the farmers have faced under this 
administration's poorly amended WOTUS rule and how easy it may 
be for a landowner to make a simple mistake and be in violation 
and look at $64,000 a day and jail time?
    Ms. Briggs. Yes. I mean, after the Biden administration's 
rulemaking came out, then after Sackett, then after the 
conforming rule, we heard--it was at a fever pitch, the amount 
of confusion and concern and uncertainty that we were hearing 
from our members.
    And it is incredibly easy for our members right now, under 
this regulatory regime, to unknowingly break the law and be 
subject to all of those penalties that can, frankly, put a 
member out of business. I mean, we represent so many small 
businesses who don't have the ability to absorb those kind of 
costs. And it is $64,000 per day for every noncompliance on the 
farm field. So, that can add up quickly, and it can be 
absolutely devastating.
    But with this level on uncertainty, it is unfair to our 
landowners. And, again, I just don't understand why the 
agencies won't come out, clearly tell landowners what the rules 
of the road are.
    It is like--I like to take my kids to the pool every now 
and then, and it is like that pool sign where it says all the 
rules. And it is, you know, no jumping, no splashing, no glass. 
And then at the bottom, it says, if you violate these rules, 
then you will lose your membership to the pool.
    Well, imagine that is the sign for our landowners, but all 
of the rules have been blacked out, and at the bottom it says, 
you could be subject to $64,000 a day or jail time. It just 
doesn't square.
    Mr. Bost. Well, welcome to our world, because it is every 
administrative body under this administration.
    At any rate, Mr. Messerly, based on your testimony and what 
I am hearing from my constituents, I think we can both agree 
that the permitting process here is a mess. It is costly. It is 
slow. It is killing infrastructure projects. Thousands of small 
projects die before the builders even had the chance to apply 
for their permit. And a simple nationwide permit to impact just 
one-half acre of wetland can easily cost upwards of hundreds of 
thousands of dollars.
    You have shared that, at your nonprofit, you have worked 
with over 1,500 permit applicants developing infrastructure 
projects. Can you share with us real-world examples where WOTUS 
permitting has significantly delayed or even caused a 
permitting applicant to just walk away?
    Mr. Messerly. Good question. And I would be glad to share. 
I don't have clearance from particular permit applicants to 
share any names or anything, but it happens quite often. 
Usually, it is small-business owners that call, and they just 
never even bother to apply after they talk with me and find out 
what the cost is.
    But there are times where it is even large companies that 
want to develop projects. One project stands out in my mind, 
northeast Ohio. The applicant wanted to impact wetlands to 
build a large commercial operation. Their siting criteria 
needed it to be near an interstate highway, needed it to be 
within a certain distance of the public. They wanted to site it 
in an urban area for traffic, for business.
    And that particular project, it was determined that this, I 
will say, moderate-quality wetland that was surrounded by a 
railroad, industrial park, and an urban arterial highway was 
too good. It was determined to be regionally important and 
therefore could not be impacted.
    The applicant withdrew the permit, built the project about 
100 miles away--different city, different community. The 
community lost out on the job creation.
    Mr. Bost. I think what we are seeing here today--and I know 
my time is up, Mr. Chairman.
    But what we are seeing here today is what we have known for 
a long time about our WOTUS rule. It is ridiculous, not being 
able to know where the Government lies and what in the world 
they can do to you and when they can do it. And that is a 
shame, because it stifles growth and scares many of our 
landowners.
    Thank you.
    With that, I will yield back.
    Mr. Rouzer. Mr. Larsen.
    Mr. Larsen of Washington. Thank you, Mr. Chair.
    First off, I appreciate the concerns Members have about a 
lot of things that Congress does and the Supreme Court does and 
the administration does, but we don't need to be overstating 
impacts.
    In fact, in nearly 3 years, the Bipartisan Infrastructure 
Law has provided $480 billion to 60,000 projects that benefit 
every congressional district in the country. The AGC was here a 
few weeks back to testify that nearly every county in the 
country has a project being built because of the Bipartisan 
Infrastructure Law. The numbers I just cited are corroborated 
by ARTBA, the road builders.
    So, to make broad statements that projects are getting 
killed every day because of WOTUS does not actually line up 
with the facts. I know fact-checking around here gets a 
little--people a little dicey, but those are facts. I am sure 
folks will have some things they want to say about what I said 
here, and that is OK, but let's not overstate the challenges or 
overstate the problem itself.
    Because there is another set of the problem that the 
Sackett decision brings, and that is undermining just the basic 
principle of cooperative federalism that Ms. Rowan discussed in 
her testimony. Before the Clean Water Act adoption in 1972, an 
individual State's efforts to protect the health of its waters 
could be undermined by the actions of its neighboring States.
    And so, Ms. Rowan, what challenges did Colorado face in 
protecting its water resources from interstate pollution?
    Ms. Rowan. Thank you, Ranking Member Larsen.
    We are a headwater State, and so, water from Colorado flows 
to downstream States, 17 of them. And protecting our water 
quality within Colorado but also in the water that is delivered 
downstream is of critical importance, and it is something we 
take very seriously.
    Mr. Larsen of Washington. Have any of these States written 
a thank-you letter to Colorado for protecting the cleanliness 
of their waters yet?
    Ms. Rowan. Thank you, Ranking Member Larsen. No, we haven't 
received any letters to that----
    Mr. Larsen of Washington [interrupting]. Would you 
substitute a thank-you letter for them taking action in their 
own State to increase their water-quality programs?
    Ms. Rowan. Thank you, Ranking Member Larsen. You know----
    Mr. Larsen of Washington [interrupting]. You don't need to 
thank me for anything.
    Ms. Rowan [continuing]. We closely collaborate with a 
number of our States through implementing the 402 program, and 
have for years, and have regular dialogue. We do have an active 
partnership right now with the State of Kansas really focused 
on----
    Mr. Larsen of Washington [interrupting]. Yes, you mentioned 
that.
    Ms. Rowan. Yes.
    Mr. Larsen of Washington. Well, I wouldn't want to replace 
a thank-you letter with these States actually taking actions as 
opposed to doing nothing because Sackett passed and using 
Sackett as the excuse to not protect their waters.
    And it just seems to me, returning to a pre-Sackett system 
of uniform Federal protections would be better than a patchwork 
approach, which is what we have.
    But if we are stuck with it for now, how can the Federal 
Government better assist States to protect their wetlands and 
downstream water resources, Ms. Rowan?
    Ms. Rowan. Thank you, Ranking Member Larsen.
    I think we do appreciate some Federal standards. It does 
provide some level of protection for States to shoot for. And 
that uniformity is appreciated. And, again, we think that this 
provides regulatory certainty to our industries and development 
and economy in Colorado.
    Mr. Larsen of Washington. Yes.
    My first hearing on--and I mention this all the time to the 
committee--my first hearing on the waters of the U.S. was back 
in, I think, 1824. No, it wasn't that long ago. It was in the 
mid-2000s, I think. And anyone who thinks that this hearing is 
going to resolve this issue today or even that the Sackett 
decision is the last word on this, I just don't think history 
backs that up, frankly, right now, either congressional 
history, administration history, or Supreme Court history.
    Had the Supreme Court then decided to give us one decision 
instead of two decisions, with Rapanos and with SWANCC, then we 
probably wouldn't be here. But they did. And I just think we 
will be at it again. And I look forward to the next 19 hearings 
we have on WOTUS to resolve this.
    Thank you very much.
    I yield back.
    Mr. Rouzer. Fun, fun, fun. Mr. LaMalfa.
    Mr. LaMalfa. Thank you, Mr. Chairman. I appreciate the 
opportunity to have this hearing, whether it takes us 1 or 19 
more because, indeed, the Clean Water Act and many other 
environmental measures have been weaponized to stop people from 
doing most things.
    Look at the Sackett decision itself. They wanted to build a 
stock pond on their own land and were thwarted for many years 
and much pain. And if you want to look at a Clean Water Act 
problem, I would invite the panelists and everybody else to 
take a look at the Klamath River post-dam removal and how nasty 
and mucky and silty that river is with little regard towards 
what would really happen. They were just so hot to get those 
dams out.
    Anyway--so, I guess this would be tilted towards Ms. Briggs 
and Mr. Messerly as well. In my home State of California, where 
it is near impossible to build housing in areas where it makes 
sense, open areas like that, except for in flood plains and 
where agricultural land is, because there doesn't seem to be 
any critters there that they care about.
    So, Mr. Messerly, for example, in Butte County, we have 
something called meadowfoam, and they seem to think there are 
several different species of meadowfoam. So, if it grows in 
what's called a vernal pool, it holds water for a few minutes 
after a rain, that is a wetland, and that is an endangered 
species. Meanwhile, they are growing meadowfoam up in Oregon as 
a seed oil plant, and so, you have this. But prime areas where 
housing could be built outside of flood plains and outside of 
agricultural land is unusable.
    So, speak about what you might know about California's 
situation on trying to build housing, especially since houses 
in California are starting to average $500,000, $600,000 in 
most cases to build anything, if you can build it, such as 
around Chico, California, which they got shut down once again.
    Mr. Messerly. Not sure I quite followed all your question.
    Mr. LaMalfa. Well, I threw a lot out there. Just talk about 
availability of building homes and what it is doing to the 
price structure, especially in California for normal people.
    Mr. Messerly. Yes, and, in an agricultural area, and 
Courtney could address this as well, but the question would be: 
Are these waters of the United States, is it prior converted 
cropland or not? And from a species standpoint, I am not 
familiar with the species in California, but this one that you 
are talking about sounds like it could be very difficult to 
identify. But it is also rare, and that makes it even harder to 
identify.
    Mr. LaMalfa. Well, it is not rare in Oregon if you are 
harvesting the stuff, but it is called meadowfoam, and it is 
fairly prolific. But it seems to be protected, and it prevents 
homes from being built or other stuff on suitable land.
    Mr. Messerly. And so, that ties in a whole another topic, 
the Endangered Species Act. And that intertwines because of the 
nexus of the 401 and 404 permitting programs, you get pulled in 
by the ESA as well.
    Mr. LaMalfa. Well, they use the Clean Water Act in order to 
have the waters of the United States apply to every vernal 
pool, which some of these grow in.
    Mr. Messerly. Yes.
    Mr. LaMalfa. Ms. Briggs, you have heard the situation here 
where land that had been idle but had been farmed extensively 
in the past but for some years was idle, and then you go back 
to start farming it again and you are in trouble from the EPA, 
along with the Army Corps for somehow violating the Clean Water 
Act--which I would tell you, when this was passed back in the 
1970s by Congress, if Congress would have passed a bill that is 
being interpreted the way it is now to stop any type of 
development or farming, those Members of Congress would have 
gotten thrown out on their ear for passing such a bill. It has 
been reinterpreted time and time again.
    So, Ms. Briggs, talk about how unfair that is that you have 
had farmable land and that they keep changing the 
interpretation of the WOTUS rule. From 2008, it was changed by 
Obama up until 2015, then it only applied to half the country, 
and then President Trump was able to change it in 2020, which 
was promptly rescinded by Biden in 2021, which led us to the 
second case in 2023.
    How much sense does this make trying to farm under all 
these conditions? You talk about the pool rules.
    Ms. Briggs. Oh, it is incredibly difficult with the 
pendulum swinging back and forth and the ping-ponging of rules 
based on changes of administration. There is no clarity, there 
is no certainty for our members.
    So, they just don't understand where that bright line of 
jurisdiction is. It doesn't exist under these rulemakings. And 
you talk about land that has been idled in California, again, 
the ag exemptions are only as good as how well they are 
written.
    And we have problems with prior converted cropland, we have 
problems with the exemptions that are listed in 404(f) because 
when you talk about normal farming practices and that being 
exempt under 404, right behind it is a recapture provision that 
essentially says you are exempt unless we tell you you are not.
    So, no farmer has certainty in using any of those 
exemptions, and, unfortunately, we have seen farmers burned by 
both compliance under Swampbuster and the Clean Water Act.
    Mr. LaMalfa. So, the list of rules always has----
    Ms. Briggs [interrupting]. An asterisk.
    Mr. LaMalfa. At the end of the rules: ``and any other thing 
we feel like enforcing you on,'' which is the one they gig you 
on.
    Ms. Briggs. There is always an asterisk associated with ag 
exemptions. We can take this away from you at any time if we 
feel like it. I am paraphrasing there.
    Mr. LaMalfa. You are right. Well, they are sure good at 
gigging us, but I see them not very on time producing reports 
and things we ask for here, or they are heavily redacted like 
was talked about.
    So, Mr. Chairman, we have a lot more to do on this. Thank 
you.
    I yield back.
    Mr. Rouzer. Ms. Norton.
    Ms. Norton. Thank you, Mr. Chairman. First, let me say I 
strongly opposed the Supreme Court's decision in Sackett v. 
Environmental Protection Agency. I urge this committee to take 
up legislation to overturn the Sackett decision and restore 
Clean Water Act protections for the Nation's rivers, streams, 
and wetlands.
    Ms. Rowan, what is your view of the pace of the 
implementation of the conforming waters of the United States 
rule?
    Ms. Rowan. Thank you, Congresswoman. Our law in Colorado is 
really filling the gap left by the Sackett decision that was 
then taken into account in the conforming rule. So, that is 
really what we are focused on is filling that gap.
    We have worked really closely with the Corps of Engineers, 
both after the Sackett decision and as the rule has been 
implemented to understand what they are taking jurisdiction 
over, and then what would be, in our purview, to work on 
permitting in the future, and that has been a very 
collaborative relationship. And they have provided a lot of 
good information for us as we have been navigating the process.
    Ms. Norton. Ms. Rowan, do you support legislation that 
would overturn the Sackett decision and restore protections 
under the Clean Water Act, and if so, why?
    Ms. Rowan. Thank you, Congresswoman. I think returning to a 
pre-Sackett regime would provide a uniform level of protection 
across the United States. We have found that businesses and 
regulated entities really like certainty and especially when 
they are working across different State lines and the different 
businesses. It does provide them the certainty from a 
regulatory perspective.
    Ms. Norton. Thank you. And, again, I urge this committee to 
overturn the Sackett decision.
    And I yield back.
    Mr. Rouzer. Mr. Burlison, you are recognized for 5 minutes.
    Mr. Burlison. Thank you, Mr. Chairman. Ms. Briggs, last 
year, the Supreme Court, obviously, struck down the decision, 
but it seems that the EPA is completely ignoring it, from your 
testimony and everyone's testimony here. And there are some 
examples of this. The EPA prevented Dan Ward, a farmer in Iowa, 
from building a pond on his land. Robert White from North 
Carolina filed a suit against the EPA because they are ignoring 
the rule of law from the Supreme Court and still regulating his 
land.
    So, even though the Sackett decision should be preventing 
the EPA from imposing these, they are still acting as if the 
decision doesn't exist.
    So, the question is, what can we do? What can we do to 
ensure that the EPA is following the decision of the courts?
    Ms. Briggs. Well, you can pass a law codifying the Sackett 
decision. I think that that would be helpful if it was in the 
statute.
    But I just want to take a minute because you mentioned 
specific instances of people being harmed. I don't think that I 
am exaggerating the impact that this is having on WAC members. 
I hear about people who have to walk away from projects, walk 
away from revenue for their small business, walk away from 
creating jobs in rural communities because of this regulation.
    And frankly, this is one of those regulatory rulemakings 
that makes the next generation of farmers not want to get in 
farming. So, there is a real ripple effect here that I think 
folks are failing to acknowledge.
    Mr. Burlison. One of the issues that we faced in Missouri 
was that you have, you know, your State department that is 
enforcing a lot of the regulations, because the EPA doesn't 
have the manpower or the resources to do so.
    So, with a little bit of money, they influence and require 
the State resources to enforce them. In our State, it is the 
Missouri Department of Natural Resources. I assume that is the 
way it is in every State to some extent.
    And the question that I have is that what we experienced is 
that the EPA may not have a rule--they may not pass anything 
formally, they may not go through the rulemaking process. 
Sometimes they will just issue a guidance document that then 
that guidance document the State enforces as though it is a 
rule. And yet, no one elected to anything made a change. I 
wonder if you could comment on that.
    Ms. Briggs. Yes. So--thank you, Congressman. So, the field 
memos that I mentioned in my testimony, again, they give you 
little bits and pieces about how they intend to implement this 
rulemaking. And I think if you take it all collectively, it is 
really a rulemaking hiding in plain sight. Like, it has the 
effect of a rulemaking.
    Mr. Burlison. Right.
    Ms. Briggs. And the fact that that has not gone through 
notice and comment, it hasn't gone through stakeholder 
engagement is really a problem. So, the fact that they are 
taking these guidance documents and applying them as rulemaking 
is very concerning.
    But they will not hand over the implementation guidance 
that is being disseminated to the Corps districts. We know they 
exist.
    Mr. Burlison. You have to get FOIA requests for that or----
    Ms. Briggs [interrupting]. This is the response we got 
[indicating document]: 1,123 pages, most of it is redacted. I 
will point you--and I am happy to send this to you, to one 
page, where they talk about: here is the implementation 
guidance that Corps districts should be using. Here is the 
SharePoint. And they black out the SharePoint.
    There is evidence in here where they say: do not share this 
with the public. Read the FOIA response. I am happy to share it 
with the committee.
    Mr. Burlison. So, there is no transparency at all.
    Ms. Pokon, I can see that you might have some thoughts on 
this, how the State is basically--the States are being 
leveraged to be the ``heavy,'' to be the enforcer for the EPA 
when there is no real actual laws or elected officials 
involved.
    Ms. Pokon. I'll say, as a State agency that works with the 
EPA both in implementing the Federal program, but also in 
implementing our own, I haven't seen the guidance that has been 
provided to the Corps of Engineers. So, I don't know if, when a 
permittee comes to our agency, if I need to issue them a State 
permit under State authority or if they should be getting a 
Federal permit under the section 402 program.
    And I think that, while we implement the same water quality 
standards statewide, that that can matter for a lot of 
different reasons. I might take a different enforcement 
approach with an entity if I have more flexibility and support 
them getting into compliance, rather than having to act in a 
way where we fear the EPA is going to come crashing in over our 
shoulders and enforce over us.
    I also have more flexibility in adjusting specifics of the 
program in a timely way to support facilities that need to 
operate. When we have to send things to our regional office for 
approval, it can be quite a lengthy process to get something 
finalized.
    Mr. Burlison. Thank you.
    I yield back.
    Mr. Rouzer. Ms. Scholten, you are recognized.
    Ms. Scholten. Thank you, sir.
    Thank you to all of our witnesses for being here today. 
This is an incredibly challenging time. I serve the great State 
of Michigan, including miles of beautiful west Michigan 
coastline. One of the largest freshwater estuaries in the 
entire country, the largest river system in the State of 
Michigan, all within my district. To say this is an essential 
conversation is truly an understatement.
    Ms. Briggs, while I agree with you that particularly in our 
ag community, we are experiencing incredible uncertainty, the 
Sackett decision has undermined our ability in significant and 
meaningful ways to protect this precious nonrenewable natural 
resource.
    Despite State-level efforts to bolster water regulations, 
there is no guarantee that our neighbors will pursue the same 
protections under the Sackett decision, as water can cross 
State lines. We see that in the Great Lakes region as clear as 
when you pull up a map.
    This ruling may ultimately hinder Michigan's efforts--we 
are one of three States which has been designated the authority 
to govern our own wetlands to enforce those laws.
    Ms. Rowan, Colorado has similarly sought to maintain strong 
water standards at the State level. Can you speak to the burden 
States that have led in safeguarding their waters must carry 
without strong and consistent Federal protections post-Sackett?
    Ms. Rowan. Thank you, Congresswoman. So, I think an 
immediate need for our State, again, was making sure that the 
uncertainty that was left behind didn't hinder economic 
development and progress. And so, we had to really get creative 
quick and develop an enforcement policy.
    And we are fortunate enough to have our legislature move 
forward, based on a lot of stakeholder support and common 
ground for a solution in Colorado that can hopefully withstand 
some of the back-and-forth that we have seen at the Federal 
level.
    And I do think that one burden that we are facing is that 
we had to put State dollars together to fund this program and 
be able to issue timely permits in the ways that our regulated 
community deserves and desires. And so, that is when big impact 
is a financial burden.
    Ms. Scholten. Thank you. As I mentioned, Michigan is home 
to the largest freshwater estuary system in this region, 
arguably in the world, considering the Great Lakes being the 
largest reservoir of freshwater. Also home to 275,000 acres of 
Great Lakes coastal wetlands, which are incredibly biologically 
diverse and imperative to the health of the larger Great Lakes 
Basin.
    However, these coastal wetlands connect to groundwater 
sources and may be at risk as the groundwater connects below 
the surface, not meeting the post-Sackett definition of waters 
of the United States.
    Again, to Ms. Rowan, can you elaborate on how essential 
these wetlands are in ensuring water quality standards and 
healthy habits, as well as how Sackett may harm critical 
groundwater sources linked to these wetlands below the water 
surface?
    Ms. Rowan. Thank you, Congresswoman. Coming from an arid 
West State, our water is very important and valued, and 
wetlands provide a very critical way to--and a natural solution 
for filtering pollutants and protecting downstream water 
supplies and also have an impact on protecting our groundwater 
sources which are used for a variety of ways in Colorado: for 
agriculture, drinking water.
    And so, it is just vital that we did find a way to protect 
this resource in Colorado.
    Ms. Scholten. Thank you. I invite anyone else to offer 
comments in the remaining few seconds that we have.
    Ms. Pokon. Could I add----
    Ms. Scholten. Yes.
    Ms. Pokon. Thank you, Congresswoman. I empathize with the 
concern over State resources and having adequate funding and 
applaud Colorado for making that investment.
    I would add, though, that I don't know that--so, under our 
402 program, for example, which is where the Federal Government 
has jurisdiction--and we are implementing a Federal program--
funding is grievously short currently. And so, for our program, 
for example, we get about--I don't know--$1 million, $1\1/2\ 
million through EPA and Federal funding for that program, and 
then we invest $5 million of State funds.
    So, I think a lot of States are already providing an 
investment in protecting their waters. And so, I don't know 
that the post-Sackett world is necessarily that dramatic of a 
change, but I do think that if EPA and the executive wanted to 
better support States in protecting our waters, that funding 
the Federal programs that we are implementing would be a good 
step in that direction.
    Ms. Scholten. Thank you. I appreciate that.
    Again, without clean water, we are not going to be able to 
enjoy the incredible apples, blueberries, asparagus, and the 
vital ag industry that we have. Again, believe me, I hear you 
on the uncertainty. Our farmers are existing in the margins 
right now.
    This is a serious issue that demands a serious response 
from legislators on both sides. Thank you again for your 
testimony today.
    I yield back.
    Mr. Rouzer. The gentlelady yields back.
    Ms. Maloy, you are recognized.
    Ms. Maloy. Thank you, Mr. Chairman. I have been sitting 
here listening to this, and I have done a lot of work in 
permitting and project planning in my career, and it seems like 
a lot of the conversations about this start from the assumption 
that if the Federal Government isn't managing something, if 
they don't have jurisdiction over something, if we don't define 
it as WOTUS in this particular instance, that it is going to 
get destroyed.
    And I appreciate all of your testimony because I hear all 
of you saying that we are actually doing a pretty good job of 
managing in the States and even in industries and that we don't 
have to start with the assumption that the Federal Government 
isn't doing it. It won't be done correctly. And I like that 
because Government is a blunt instrument.
    And one of the other things I am hearing is that people who 
are required to comply with this, which is everybody, don't 
know when they are in compliance. And because the full power of 
the Federal Government is behind this, that is a really scary 
situation for someone to be in.
    So, I am going to filibuster here for a second, and then I 
do have questions.
    So, I heard from my constituents that the Corps of 
Engineers released a 143-page manual to its people in order to 
help them determine when someone is in compliance. If you are 
at the Corps of Engineers and you have to have a 143-page 
manual to determine compliance, it really seems like that is 
going to be a problem for a family that wants to build a stock 
watering pond on their land. They are just not going to be able 
to make that determination. But they could be facing potential 
jail time and the kind of fines that nobody can actually 
afford.
    And then I represent Utah, and in Utah, we have a lot of 
ephemeral streams. We get snowmelt like you do in Colorado and 
Alaska, and it runs downhill. And if we have a good snow year, 
there might be water in places we don't normally have water, 
and if we have not a great snow year, there is not much water. 
And it makes it really tough for people to figure out how to 
apply these definitions to places in Utah.
    And I have a responsibility to represent my constituents 
who can't figure out with a 143-page manual and a bunch of 
letters from agencies, whether they can move forward on 
something.
    So, my first question--and it is for all of you. We are 
going to start with Ms. Pokon and go down the list.
    In your experience, do these long processes of getting 
permits create better outcomes?
    Ms. Pokon. I think I can confidently say that the process 
could be better streamlined, particularly where there is a 
Federal intersect. As I mentioned earlier, if we want to adjust 
our approach based on site-specific circumstances or other 
conditions that are unique to a facility or to a location, that 
can be a quite lengthy process working with the Federal 
Government, so lengthy that often it just doesn't work for the 
facility that needs to be able to operate.
    So, then they are faced with either not operating and maybe 
giving up the business plan, or operating in noncompliance, 
which also isn't a good option that they want to follow through 
with.
    So, yes, I think the process could be improved. I also 
think that States tend to be a little bit more nimble, and we 
have the awareness of a fuller totality of circumstances that 
are affecting our facilities and our residents.
    Ms. Maloy. Thanks. So, I am going to put you down as a no, 
it is not actually creating better outcomes. It is just a 
lengthy process.
    Ms. Rowan?
    Ms. Rowan. Thank you, Congresswoman. I do believe that 
there are good outcomes from the permitting process. I think 
when it comes to our wetlands and seasonal streams, what we are 
talking about here is kind of losing chunks of them in their 
entirety, and it is hard to get them back.
    So, I do think that the permitting process helps protect in 
that regard. I think also in Colorado our history has been that 
a vast majority of the permitting proceeds under the nationwide 
and regional general permits, which----
    Ms. Maloy [interrupting]. I am going to rush you a little 
because I am almost out of time. I had a couple more questions 
I wanted to ask.
    Ms. Briggs, does the length of the permitting process help 
the outcome?
    Ms. Briggs. No.
    Ms. Maloy. Thank you. Mr. Messerly?
    Mr. Messerly. No, ma'am.
    Ms. Maloy. Thank you. So, it seems like the Court made a 
move to limit the jurisdiction of these agencies, said they are 
overreaching in Sackett. And then in light of the Chevron 
decision, it seems like the Court is signaling that they don't 
want agencies to keep overreaching their authority.
    We are sitting here talking about how agencies are trying 
to go around that and redefine it, and that they are defining 
their authority as if we have jurisdiction, then people are 
safe. I just don't think that is true.
    My last question, if you guys can answer it really fast, is 
how much do you think it is costing people you represent in 
time and money to get these permits?
    And we are going to start with you, Mr. Messerly, because 
we are going to run out of time. Really quickly.
    Mr. Messerly. A lot. A basic permit I mentioned earlier, 
$70,000 for mitigation; consulting fees, attorney fees, et 
cetera, on top of that easily puts it over $100,000 just for a 
general permit.
    On average, we typically see applicants needing upwards of 
2 acres of mitigation. So, it just escalates from there. 
Multiply it. So, it is very expensive.
    Ms. Maloy. Thank you. I want to hear your answer, Ms. 
Briggs. I am out of time. I don't know how 5 minutes goes by so 
fast.
    Ms. Briggs. I would just say the cost of delay.
    Ms. Maloy. Yes. I am going to follow up with all of you in 
writing for answers on this and the other question I didn't get 
to because I think this is really important that we get 
answers. Thank you.
    Mr. Rouzer. The gentlelady yields back. Ms. Hoyle.
    Ms. Hoyle of Oregon. Thank you very much. My questions are 
for Ms. Rowan. Thank you for being here today.
    My questions are because, Oregon, like Colorado, we have 
State protection laws that now differ from the Federal laws, 
and we are all trying to work out how we interpret these 
things. So, as you have worked with the EPA and the Army Corps 
while developing your program, what have you found most helpful 
in the technical assistance that is provided, and where do you 
feel like you could have better technical assistance?
    Ms. Rowan. Thank you, Congresswoman. Thank you for that 
question.
    One of the things we did in crafting the legislation was 
really hearing from our stakeholders about what is working, 
about the current Federal process, and trying to get an 
understanding of what not to take away, because they actually 
like certain portions. And so--and the Corps was very, very 
helpful, as were our stakeholders, in helping us understand how 
exemptions and exclusions were--how they operate in Colorado.
    And one of the things that we did with the legislation is 
really have a more expansive set of exclusions and exemptions 
for the variety of activities and water body types in Colorado. 
So, they were very helpful in helping us understand how that 
has worked historically.
    I think another area where we are going to continue to work 
really hard, and I think we have a unique opportunity as a 
State, is how we do mitigation moving forward. So, I think that 
is going to be critical as we stand up our new program.
    Ms. Hoyle of Oregon. Thank you. Also, do you feel that you 
have had the clarity provided that is necessary to determine 
State versus Federal waters?
    Ms. Rowan. Thank you, Congresswoman. We are really focused 
on, again, filling the gap that Sackett left behind. And so, 
the Corps has been working very closely with them to let us 
know when a water in Colorado is not a WOTUS so that we can 
work with those entities to make sure that they have what they 
need to keep moving forward with their project under our 
enforcement discretion policy and now as part of our permitting 
program.
    Ms. Hoyle of Oregon. And then, could you just go into 
more--I know you have touched on this.
    What has been the feedback and public perception for 
affected parties and stakeholders of how WOTUS has changed in 
your State?
    Ms. Rowan. Thank you, Congresswoman. After the Sackett 
decision, the Nature Conservancy did a public survey in 
Colorado from voters from all political affiliations statewide. 
And what that survey found was that 67 percent of those surveys 
really wanted to see some State level of oversight to fill the 
gap.
    Ms. Hoyle of Oregon. Excellent. Thank you, and I yield 
back.
    Mr. Rouzer. Mr. Collins.
    Mr. Collins. Thank you, Mr. Chairman. I am going to jump 
right in. I mean, I have been jumping around like a jumping 
bean, I think, here this morning.
    Mr. Messerly, Home Builders Association. I just want to 
start out, if you could give me some real-world consequences of 
an ambiguous definition to WOTUS, and what does it exactly mean 
for my constituents?
    Mr. Messerly. So, Mr. Collins, make sure I understand your 
question correctly. You are asking, what is the definition of 
waters of the United States?
    Mr. Collins. Well, I mean, it is ambiguous at best. So, I 
mean, what are the homebuilders out there seeing, and how is it 
affecting my constituents?
    Mr. Messerly. Yes. The biggest effect, to be honest with 
you, when you look at the definition of water of the United 
States, the vast majority of the definition is very clear. 
Navigable waters, Territorial seas, oceans.
    In the 1890s, they defined----
    Mr. Collins [interrupting]. What's that got to do with 
homebuilding?
    Mr. Messerly. When you get it down to--by the time you get 
to the headwaters, where they are building houses, where they 
are farming, where they are ranching, where they are mining: 
those are where the rub is.
    And those waters need to have a continuous surface 
connection with a relatively permanent water.
    Mr. Collins. So, when you get--when your builders are 
getting permits and they don't know if the water is federally--
if the Feds have jurisdiction or the States, right?--that is 
where we are going with this. So, what do they do? They just--
they bide their time and wait until they get a Federal 
Government who we all know works at the pace of a snail going 
backwards? Or they just give up, throw their hands up and say, 
hey, let's just go ahead and pay everything we need to and get 
this out of the way?
    Mr. Messerly. Sometimes they give up and sometimes they 
concede. Other times they walk away. My----
    Mr. Collins [interrupting]. Does that actually cost the 
homebuilder--the person buying the home at the end of the day?
    Mr. Messerly. At the end of the day, that cost gets passed 
on to that person living in that home.
    Mr. Collins. You got any estimates or anything on what you 
think it is costing? Does it add 20 percent?
    Mr. Messerly. It could easily add that. If you are building 
for a single residence, it could easily add more than that.
    But you are talking, again, anybody from an affordability 
standpoint, from a financing standpoint, every $1,000 of 
increase in a house takes away 106,000 eligible borrowers that 
could be borrowing money to qualify to buy that house.
    Mr. Collins. And I would think right now with the way 
mortgage rates are and the way that building construction 
material costs are, that is pretty substantial.
    Mr. Messerly. It is--it can be very overwhelming.
    Mr. Collins. Over a rule that has affected building houses?
    Mr. Messerly. Correct.
    Mr. Collins. Which we really don't know what the rule is.
    Mr. Messerly. There is some ambiguity, that is for sure.
    Mr. Collins. Some ambiguity?
    Mr. Messerly. Yes. And I would add----
    Mr. Collins [interrupting]. That is putting it lightly.
    Mr. Messerly [continuing]. I would add, I have never met 
somebody----
    Mr. Collins [interrupting]. I think you are being nice.
    Mr. Messerly [continuing]. That is anti-environmental. They 
want to protect the environment. They want to do the right 
things.
    I think why the WOTUS definition is so contentious is, is 
the permitting program is broken, and the cost to comply with 
the permitting program is excessive. So, it is almost a death 
sentence when you get that notice that you have a waters of the 
United States that you have to deal with.
    Mr. Collins. I tell you what, I want to move to Ms. Briggs 
just for what time is left.
    I understand that many Waters Advocacy Coalition members 
and organizations filed Freedom of Information Act requests to 
obtain more information on how the agencies are implementing 
WOTUS.
    What kind of response did you receive from them?
    Ms. Briggs. First, I just want to say that this WOTUS rule 
is standing in the way of affordable housing, renewable energy 
projects, projects that are benefiting communities like the 
construction of schools, and environmentally beneficial 
projects like the development of wetlands. I have heard from 
many States that are wanting to build wetlands in order to 
improve water quality, but they can't get through the 404 
permitting process.
    But to answer your question, we did get a response. Most of 
it was redacted, and they, once again, failed to provide the 
implementation guidance. We know it exists through the 
documents. We know they don't want the public to know it, but 
they have not handed over----
    Mr. Collins [interrupting]. What was the reason for 
redacting?
    Ms. Briggs. They said it was deliberative, so, I don't 
understand----
    Mr. Collins [interrupting]. They are still deliberating?
    Ms. Briggs. I don't understand why it is labeled 
deliberate.
    Mr. Collins. But this [indicating document] is the 
guidance?
    Ms. Briggs. Yes.
    Mr. Collins. But it is not finished, because we are 
deliberating?
    Ms. Briggs. That is what they----
    Mr. Collins [interrupting]. It is not classified, right? It 
is just deliberative?
    Ms. Briggs. They say it is deliberative. Therefore, they 
are still deliberating over it, but it is being used in the 
countryside.
    Mr. Collins. Mr. Chairman, this is nothing but typical 
overreach from the Federal Government who doesn't really care 
what input anybody puts into anything or what anybody says. 
They are going to do what they feel like they want to do and 
try to hide whatever they can.
    I would like to enter into record, if I could--this is the 
1,200-page--mostly--581 pages, as a matter of fact, of redacted 
pages of the response from the U.S. Army Corps of Engineers on 
WOTUS.
    Mr. Rouzer. Without objection, so ordered.

                                 
  Response to Waters Advocacy Coalition's Freedom of Information Act 
         Request, Submitted for the Record by Hon. Mike Collins
    The 1,128-page document is retained in committee files and is 
available online at https://docs.house.gov/meetings/PW/PW02/20240911/
117592/HHRG-118-PW02-20240911-SD003.pdf

    Mr. Collins. And I am out of time.
    Mr. Chairman, I yield back. Sorry for going over.
    Mr. Rouzer. Mr. Duarte, you are recognized.
    Mr. Duarte. Thank you, Mr. Chairman. Thanks to the panel 
for being here today.
    Ms. Briggs, you work for American Farm Bureau. Farmers got 
to farm land, and sometimes we take farming land out of farm 
systems, maybe take wheat fields and graze them for a few years 
or a few decades, depending on markets and business models and 
the entity's desire to farm one crop or another, under one 
cropping system or another.
    So, right now, we are in a situation, and we are speaking 
today about permit processing of the Army Corps of Engineers 
and EPA that is almost nonexistent, or at least very, very 
slow.
    The Army Corps of Engineers has also, as I understand 
through some consultants I work through, put notice that they 
are not even doing delineation verification mapping work right 
now. If you are a farmer and you simply have a professional 
biologist map the wetlands that might be jurisdictional on your 
land using their best understanding of what wetlands may or may 
not be jurisdictional, from whatever information they can get 
from the Army Corps these days, which may be vague--they are 
not even processing those right now because they are so backed 
up with permits. In my opinion, greatly regulating wetlands 
that they have no authority to regulate.
    Are you getting that feedback from any of your farmers?
    Ms. Briggs. I am certainly hearing it from WAC members that 
approve jurisdictional determinations in many Corps districts 
are just not happening. And that is really rich because when 
you talk to the Corps about AJDs, they say: It's a free 
service, every [inaudible] can get one, nothing to worry about. 
Go down to your local Corps office, we will hook you up with an 
AJD.
    But there are Corps districts out there that are not 
issuing AJDs. They are prioritizing AJDs that are linked to a 
permit.
    So, what this is effectively doing is pushing landowners 
into PJDs. PJDs are basically when landowners concede that 
everything is--they throw their hands up and concede that 
everything is jurisdictional. They go through the mitigation. 
They go through the permitting process. It is the only way to 
move the process forward.
    Mr. Duarte. So, if you don't concede jurisdiction to the 
Corps, they will not process your delineation maps?
    Ms. Briggs. In some Corps districts, that is correct.
    Mr. Duarte. Yes. Excellent.
    Mr. Messerly, Home Builders. You want to build homes. You 
have got some dry rolling grasslands, as is familiar in 
California. It doesn't look like a wetland to anybody who is--
USGS, U.S. Geological Survey, doesn't map anything on the 
property as a wetland. But, nonetheless, a homebuilder may need 
to submit a non--a delineation that suggests that whatever 
features are on that property are not jurisdictional wetlands.
    If they don't declare them jurisdictional wetlands, they 
are not going to get processed. Is that an experience you are 
having?
    Mr. Messerly. Yes. A lot of times the Corps districts are 
deferring on performing approved jurisdictional determinations, 
or AJDs, and encouraging applicants to fill out the PJD, the 
preliminary jurisdictional determination.
    And the problem with that is, if these are isolated 
wetlands, they are not regulated by the waters of the United 
States. By default, accepting the terms of the PJD is, one, is 
it is nonbinding, it assumes everything is a water of the 
United States, and you cannot appeal it.
    Mr. Duarte. Let me skip ahead here. So, farmers go to the 
NRCS, or the farm service agency to have their Federal 
Government engagement with what their farming plans are and 
what farm programs or restrictions may be placed on them. 
Homebuilders may go to a local zoning or a local permitting 
agency at the county level or State level to suffice things.
    Has there been any better communications with these 
regulatory agencies than there has been with your advocacy 
groups? Does the NRCS, FSA, local ag commissioner, local farm 
advisor, local permitting office, local State offices have 
better information than you have seen as to what the Army Corps 
of Engineers is requiring under these new WOTUS regs? Either 
one. I think there is a short answer.
    Ms. Briggs. Well, they are not coordinating with each 
other.
    And the most perfect example of this is the understanding 
of prior converted cropland because NRCS and Army Corps are now 
supposed to have the same understanding. The Corps has moved to 
a change-of-use policy to be in line with what NRCS is doing, 
but they have different interpretations of what that means. So, 
that is impossible for a landowner to navigate.
    Mr. Duarte. Mr. Messerly?
    Mr. Messerly. Something similar. We often see farm fields 
apply for an AJD. They will be told: You need to talk with 
NRCS. NRCS will come out and verify it----
    Mr. Duarte [interrupting]. Just to finish up here, because 
I am running out.
    And every violation of the Clean Water Act is subject to 
potential criminal penalties. There is no effort being made by 
the Army Corps of Engineers, EPA, and sometimes DOJ gets 
involved here--I know that personally--there is no definition 
of what is jurisdictional, and criminal penalties loom over 
anybody who violates whatever the Army Corps' interpretation of 
this law is.
    Is that a workable situation for your constituents?
    Mr. Messerly. No, it is not.
    And to finish it up, both agencies will point to the other 
agency and say, we will give you a letter that says this is 
what you have, but it is up to the other agency to make a final 
determination and determine your eligibility for farm benefits 
or determine your eligibility for section 404 of the Clean 
Water Act. It really puts them in a catch-22.
    Mr. Duarte. And we already have a U.S. geological survey of 
every mapped water of the United States to begin with. We have 
thoroughly mapped our waters of the United States, but that 
cannot be used conclusively to determine WOTUS jurisdiction?
    Mr. Messerly. That is correct.
    Mr. Duarte. Thank you. I yield back, Chairman.
    Mr. Rouzer. Mr. Ezell.
    Mr. Ezell. Thank you, Mr. Chairman. Thank you, sir. Thank 
you all for being here today.
    I will tell you, over 1 year ago, we were here discussing 
the same concerns, over 1 year ago. And I want to thank you for 
coming back again, some of you that were here last year.
    But I want to kind of get--I have several things I want to 
try to discuss and try to get to all of it today.
    Ms. Pokon, how have the regulatory agencies engaged with 
your State while implementing the Sackett decisions?
    Ms. Pokon. Thank you. It is tough to say because I am not 
sure they are implementing it. As I said, our district office, 
the Corps of Engineers, has articulated that they don't think 
anything has changed in our State.
    But I would posit that ``indistinguishable'' should mean 
something, and I also think that the Court's concerns around 
the vagueness should matter as well. I think it is unfortunate 
that we would have to coordinate with our Corps office and that 
Colorado has had to in such granular detail when the Court made 
pretty clear, I think, that they would like it to be a 
commonsense, understandable definition that your average 
homeowner can go out and understand whether or not they need to 
get a permit from the Federal Government or not.
    Mr. Ezell. Common sense doesn't normally go along with the 
Federal Government.
    My next question is for Mr. Messerly. This committee has 
heard from homebuilders and how a ``significant nexus'' test 
would cause great confusion for construction projects. 
Thankfully, the Sackett decision struck down the ``significant 
nexus'' tests and provided more clarity on Federal jurisdiction 
over waters. However, the administration's conforming rule only 
cut out the ``significant nexus''.
    What are the areas of the Sackett decision that are not 
being implemented, and what effects are they having on home 
building?
    Mr. Messerly. It boils down to a relatively permanent water 
and a continuous surface connection where there is no 
demarcation of where one ends and the other one begins. And 
they are not simply following that.
    It really causes a great deal of confusion for States that 
have regulatory programs, States that want to develop 
regulatory programs because they don't know where Federal 
regulation ends and theirs begins. So, it creates problems on 
both sides of the aisle.
    I look to Ohio. We have a tiered permitting approach for 
wetlands that the State regulates that are not waters of the 
United States. It works very well. Our State program was 
implemented after the SWANCC decision in 2001. I would 
encourage you all to look at that.
    The tiered permitting system has distinct timelines that 
must be followed if permits are issued by default. We protect 
every wetland in Ohio, and it works very well.
    Mr. Ezell. Very good. Following up, my district is a unique 
situation where projects may fall under three different Army 
Corps jurisdictions and subject to three different sets of 
standards. To eliminate confusion, it is incredibly important 
that all the Army Corps establishes clear standards across all 
jurisdictions.
    Mr. Messerly, given your experience, can you speak how 
different districts are implementing the Sackett decision, and 
how is it impacting industries across States with multiple 
Corps jurisdictions?
    Mr. Messerly. All districts are not created equal, 
unfortunately.
    Mr. Ezell. Yes.
    Mr. Messerly. There are great differences. Some are 
implementing Sackett almost exactly the way the Supreme Court 
ruled--I am sorry. They are implementing WOTUS.
    But when we look at some other districts, they are really 
floundering. They are not able to process AJDs, they are not 
able to process permits, and it is debilitating in those 
districts.
    Mr. Ezell. Thank you.
    Ms. Briggs, it was brought to my attention some Army Corps 
districts in Vicksburg have stopped issuing approved 
jurisdictional determinations altogether.
    What impact do you think this is having on the people in 
Mississippi?
    Ms. Briggs. Yes. I am glad you brought this up because 
Vicksburg is one of the Corps districts that has said they are 
not approving AJDs, and resources are actually being moved from 
Vicksburg to other Corps districts. So, that is just going to 
exacerbate the problem.
    And our builders, our farmers, our energy developers are 
not going to be able to take on these projects without Clean 
Water Act permits.
    And if I just may, you asked him a question about 
``significant nexus''----
    Mr. Ezell [interposing]. Right.
    Ms. Briggs [continuing]. And I would very much argue that 
the snippets that we have received through the field memos that 
the agencies have released, if taken collectively, 
fundamentally aren't that different from ``significant nexus''. 
And this is what we feared as WAC.
    We feared that they would get rid of ``significant nexus'' 
from the rulemaking, and that it would come up with a policy 
that has the same force and scope of ``significant nexus'', but 
just call it something different. And that is what we think is 
materializing.
    Mr. Ezell. Thank you.
    Mr. Chairman, if I could have one moment?
    Mr. Rouzer. Go ahead.
    Mr. Ezell. Continuing with Ms. Briggs, I know you are here 
representing the Waters Advocacy Coalition. But by trade, you 
represent the agricultural industry.
    Can you speak how this rule has impacted rural agricultural 
land and rural landowners like the ones in my district?
    Mr. Rouzer. Keep it to about 20 seconds.
    Ms. Briggs. It is confusion. It is uncertainty. The 
exemptions are really not providing the certainty that our 
members need in order to be able to use them.
    Mr. Ezell. Thank you.
    Mr. Chairman, I yield back.
    Mr. Rouzer. Mr. Van Orden.
    Mr. Van Orden. Thank you, Mr. Chairman. I am just going to 
say out loud what everybody here is thinking, because it is 
readily apparent.
    No one in Washington, DC, knows what the hell they are 
talking about when it comes to this subject. Zero. Last year, 
we had a dude with a 40-pound brain who is a law professor 
lecture us about how to run farms. I asked him the last time he 
was on a farm. He said his mom--we just pulled up the 
transcript. His mom used to get horse manure, and they used 
that in his garden. Those were his bona fides.
    There is simply enough stupid to go around in this entire 
problem set. And when I agree with Mr. Larsen, what's going on 
here, right? That is dogs and cats sleeping together at this 
point.
    So, here is the problem. Congress keeps putting their 
fingers into things where they don't belong. They don't. You 
know who knows what's going on here? You do, ma'am. And my 
farmers do. I represent the Third Congressional District of the 
State of Wisconsin. We have the largest contiguous section of 
the Mississippi River in any congressional district in the 
country. You go from lock 3 to 11, right--or from Red Wing down 
to Dubuque.
    We don't have a north-south highway in the Third 
Congressional District. We have the Mississippi River. And we 
are at the forefront of not only organic farming, but also 
conservation. So, our guys built these retention ponds so you 
have runoff and all of these nutrients going to these ponds, 
and then they settle at the bottom, they pull them out, they 
reuse them, it lowers input cost. They put the water that is in 
there to irrigate the fields again. All of that will go away.
    And you know where those nitrates are going to go? Right 
into the Mississippi River in the watershed, and they are going 
to go down to Mike's district. That is going to happen if this 
happens, because you have got a bunch of really super-duper 
important people around here, and if you don't believe me, ask 
them. They will tell you. And they are going to tell your 
farmers how to run their business. That is a nonstarter.
    So, here is part of the problem. Congress is lazy. Congress 
is lazy. My predecessors abdicated the responsibilities to the 
executive branch so they could keep getting elected and come up 
here and have these very super important meetings. That is what 
happened.
    Well, guess what happened? Chevron happened. So, Congress 
is going to have to do their job, which is write very 
prescriptive legislation and tell the executive branch what 
they are going to do, because we are the Article I authority. 
We are. We are members of the co-equal branch of Government. 
And they have been obfuscating these things. They have been 
running a Green New Deal agenda disguising it as confusion 
about legislation. I can't understand this; let's write a rule. 
Nope. You don't get to write law. We do.
    So, I am going to be here at least until January 4 or--I 
don't know. I will be at least here until January 4. We will 
probably have another meeting January 5. Maybe someone else 
from Wisconsin. I don't know.
    But as long as I am here, I am going to do this. I am going 
to advocate incredibly strongly for my farmers and yours to 
make sure that they can feed the world.
    And I don't really have a question. I am just--I am sick 
and tired of talking about this same thing. I am sick and tired 
of our farmers talking to me every day; they don't know what to 
do. They don't know if they are breaking the law. They don't 
know if they are going to be able to feed their families. They 
don't know if their house is going to be taken away from them 
because they are getting charged $64,000 a day for doing 
something that they thought was right. That is not OK. It's 
not. This is broken.
    So, when I get input from my farmers and I sit down, I 
listen to this guy, and Val, my buddy from Oregon, who is a 
Democrat, and we are like, OK, let's craft legislation to make 
sure this works well. When we do that, we each represent 
850,000 people, that is what the executive branch is supposed 
to do, not run their own agenda. It is very frustrating. It is.
    And with that, I yield back.
    Mr. Rouzer. The gentleman yields back. My understanding is 
there is no other Member that has a desire to ask any 
questions. That being the case, our hearing today concludes.
    I want to thank our witnesses for your great testimony. It 
has been a very, very good hearing, a lot of great questions, 
and I think very beneficial, not only for each of the Members 
here on the committee, but for those who choose to take a look 
at the record later. This has been an exceptional hearing in my 
opinion.
    With that, let's see if we have any final things I need to 
get in the record.
    [Discussion off the record.]
    Mr. Rouzer. The bosses here say we are clear to go. 
Subcommittee adjourned.
    [Whereupon, at 11:53 a.m., the subcommittee was adjourned.]



                       Submissions for the Record

                              ----------                              


Letter of September 11, 2024, to Hon. David Rouzer, Chairman, and Hon. 
 Grace F. Napolitano, Ranking Member, Subcommittee on Water Resources 
 and Environment, from Kristen Swearingen, Vice President, Legislative 
 and Political Affairs, Associated Builders and Contractors, Submitted 
                  for the Record by Hon. David Rouzer
                                                September 11, 2024.
The Honorable David Rouzer,
Chairman,
Committee on Transportation and Infrastructure, Subcommittee on Water 
        Resources and Environment, U.S. House of Representatives, 
        Washington, DC 20515.
The Honorable Grace Napolitano,
Ranking Member,
Committee on Transportation and Infrastructure, Subcommittee on Water 
        Resources and Environment, U.S. House of Representatives, 
        Washington, DC 20515.
    Dear Chairman Rouzer, Ranking Member Napolitano and Members of the 
U.S. House Committee on Transportation and Infrastructure's 
Subcommittee on Water Resources and Environment:
    On behalf of Associated Builders and Contractors, a national 
construction industry trade association with 67 chapters representing 
more than 23,000 members, I write to thank you for holding a hearing on 
``Waters of the United States Implementation Post-Sackett Decision: 
Experiences and Perspectives.'' This hearing is vital to examining the 
U.S. Environmental Protection Agency and U.S. Army Corps of Engineers' 
WOTUS implementation strategy and conformity with Sackett.
    On May 25, 2023, the U.S. Supreme Court issued its decision in 
Sackett v. EPA, narrowing the scope of WOTUS that may be regulated 
under the Clean Water Act. Specifically, the Court rejected the 
`significant nexus' test relied on by the Biden-Harris administration's 
January 2023 WOTUS final rule. To conform with the Court's decision, 
the EPA and Army Corps issued an August 2023 final rule and fact sheet, 
eliminating the ``significant nexus'' test. However, in doing so the 
agencies advanced the rule without meaningful opportunities for input 
from the construction industry and other stakeholders and failed to 
fully implement the court's opinion, including the definition of 
``relatively permanent'' waters.
    In addition, the EPA and Army Corps have not provided the regulated 
community with sufficient guidance regarding their interpretation of 
the August 2023 rule. Instead, the EPA and Army Corps have issued Field 
Memos without expanding on their interpretation or application, 
creating uncertainty for the regulated community. ABC is concerned the 
EPA and Army Corps' approach to WOTUS risks continuing the decades-long 
uncertainty surrounding the scope of federal authority under the CWA, 
resulting in litigation, regulatory uncertainty and confusion in the 
business community.
    The Sackett decision placed clear boundaries on the scope of the 
federal government's authority relating to WOTUS while maintaining 
reasonable environmental protections for America's waterways. Now, the 
EPA and Army Corps must adhere to the Court's ruling. It is time for 
the EPA and Army Corps to provide the regulated community, including 
the construction industry, with the clarity necessary to complete much-
needed projects in our communities that allow workers and local 
economies to thrive.
    ABC urges the EPA and the Army Corps to fully comply with the 
Sackett decision and provide the regulated community with a clear, 
concise definition of WOTUS necessary to inform them of how to comply 
with the law while also serving as good stewards of the environment, as 
they did prior to the Biden-Harris administration's shortsighted 
reversal of President Donald Trump's WOTUS policies.
    ABC appreciates the opportunity to comment on the committee's 
review of post-Sackett WOTUS implementation.
            Sincerely,
                                        Kristen Swearingen,
                 Vice President, Legislative and Political Affairs,
                               Associated Builders and Contractors.

                                 
  Letter of September 9, 2024, to the Committee on Transportation and 
Infrastructure and the Subcommittee on Water Resources and Environment, 
    from Benjamin Davenport, Executive Vice President, Idaho Mining 
       Association, Submitted for the Record by Hon. David Rouzer
                                                 September 9, 2024.
House Transportation and Infrastructure Committee,
Subcommittee on Water Resources and Environment,
2165 Rayburn House Office Building, Washington, DC 20515.

Re:  Subcommittee Hearing on ``Waters of the United States 
Implementation Post-Sackett Decision: Experiences and Perspectives,'' 
Wednesday, September 11, 2024, in 2167 of the Rayburn House Office 
Building

    Dear Chairman Rouzer and Ranking Member Larsen,
    I am writing to express the views of the Idaho Mining Association 
(IMA) on the implementation by the Federal government of the United 
States Supreme Court decision in Sackett v. EPA, a case decided well 
over a year ago on May 25, 2023.
                               About IMA
    IMA is a non-profit, non-partisan, state-wide trade association 
located in Boise, Idaho. IMA is the recognized voice in support of 
exploration and mining in the State of Idaho. Our purpose is to 
advocate for a sustainable mining industry that benefits our state and 
local communities, while advancing the mineral resource and mining 
related interests of our members.
    We represent and inform our membership on legislative, regulatory, 
safety, technical, and environmental issues that surround the mining 
industry. We are committed to the protection of human health, the 
natural environment, and a prosperous mining industry in Idaho and 
across the United States.
 The Sackett Case and the Critical Need for Implementation Guidance to 
                         the Business Community
    In their second trip to the Supreme Court in over a decade, Michael 
and Chantell Sackett, an Idaho family seeking to build a home on their 
property in Priest Lake, successfully reversed a decision by the United 
States Court of Appeals for the Ninth Circuit that the CWA covers 
adjacent wetlands with a ``significant nexus'' to traditional navigable 
waters. Last May, the Court held that the jurisdictional reach of the 
Clean Water Act (CWA) extends only to wetlands that are ``as a 
practical matter indistinguishable'' from waters of the United States. 
Accordingly, Sackett requires more regulatory precision by the Army 
Corps of Engineers and Environmental Protection Agency to determine 
where traditional ``navigable'' waters end and wetlands begin.
    In Sackett, the Supreme Court noted with great particularity the 
importance of notice by government ``with sufficient definiteness that 
ordinary people can understand what conduct is prohibited'' under the 
CWA. This is due to the potential severe criminal sanctions for even 
negligent violations and the need to avoid arbitrary enforcement. For 
IMA member companies that depend on regulatory certainty for their 
business models while advancing environmental stewardship, any delay by 
the Corps and EPA in meaningfully implementing the Sackett decision is 
problematic on multiple fronts.
    For example, for publicly traded companies accountable to their 
shareholders and other constituencies, even an inadvertent CWA 
violation would be a public relations disaster, not to mention 
undermining the significant investment already made by these companies 
in environmental protection. Rather than leaving the regulated 
community to feel their way post-Sackett on a case-by-case basis, the 
Corps and EPA should wholly embrace clear illumination--as soon as 
possible--by which the Clean Water Act extends to wetlands with a 
continuous surface connection to waters of the United States so that 
they become ``indistinguishable'' from those waters.
    The Supreme Court noted in Sackett that the ``CWA is a potent 
weapon.'' The Idaho Mining Association welcomed the outcome in Sackett 
and welcomes its compliance. IMA members look forward, with the expert 
guidance of the appropriate Federal agencies, to distinguishing what 
the Supreme Court termed the ``indistinguishable'' under the Clean 
Water Act so that both the environment and company business models 
remain protected. IMA respects CWA obligations that flow to its 
members, and each day that passes absent clarity by the Federal 
government on Sackett compliance is one more day that business and the 
environment are at risk.
            Sincerely,
                                        Benjamin Davenport,
                Executive Vice President, Idaho Mining Association.

                                 
 Letter of September 9, 2024, to Hon. David Rouzer, Chairman, and Hon. 
 Grace F. Napolitano, Ranking Member, Subcommittee on Water Resources 
     and Environment, from Alex Etchen, Vice President, Government 
Relations, Associated General Contractors of America, Submitted for the 
                      Record by Hon. David Rouzer
                                                 September 9, 2024.
The Honorable David Rouzer,
Chairman,
Subcommittee on Water Resources and Environment, United States House of 
        Representatives, Washington, DC 20515.
The Honorable Grace Napolitano,
Ranking Member,
Subcommittee on Water Resources and Environment, United States House of 
        Representatives, Washington, DC 20515.

RE:  AGC statement for the record for hearing entitled ``Waters of the 
United States Implementation Post-Sackett Decision: Experiences and 
Perspectives''

    Dear Chairman Rouzer and Ranking Member Napolitano:
    On behalf of the Associated General Contractors (AGC) of America--
the leading association in the construction industry representing more 
than 27,000 firms, including America's leading general contractors and 
specialty-contracting firms--I thank you for holding the hearing 
entitled, ``Waters of the United States Implementation Post-Sackett 
Decision: Experiences and Perspectives.'' AGC respectfully shares 
challenges that the construction industry has experienced with the 
implementation of the Waters of the United States (WOTUS) since the 
Sackett v. Environmental Protection Agency ruling.
    Federal agencies and courts have long struggled to define WOTUS. 
Differing regulations and definitions of the rule over the last four 
presidential administrations have created significant regulatory 
uncertainty for construction projects and it is impacting contractors' 
ability to plan and execute their work efficiently. In 2023, the Biden 
administration issued their definition of WOTUS, expanding federal 
reach over waters and wetlands, relying on a ``significant nexus test'' 
to assert federal jurisdiction over almost any wet area. The Supreme 
Court's Sackett decision struck down the significant nexus test, 
finding that it is flawed for determining when projects require a 
federal permit.
    In response, the Biden administration hastily drafted edits to the 
rule that unfortunately do not address its significant legal flaws, nor 
fully implement the Sackett decision. Agencies also finalized their 
revisions without accepting public comment--a practice that is 
typically reserved for only minor, non-controversial edits. Further, 
the administration is also elevating some projects for interagency 
review and then releasing field memos that describe how they may decide 
in specific scenarios where the 2023 rule remains unclear. This 
practice is akin to regulation through guidance, leaving stakeholders 
wading through unclear regulations and then analyzing scenario-based 
memos for clues on whether their project may move forward.
    Congress must ensure that any changes in policy surrounding WOTUS 
are consistent with the Supreme Court's ruling so that construction 
projects nationwide do not face legal uncertainty. AGC thanks the 
subcommittee for holding this important hearing and looks forward to 
working with subcommittee members on this issue.
            Sincerely,
                                               Alex Etchen,
          Vice President, Government Relations, Associated General 
                                            Contractors of America.

                                 
  Letter of September 10, 2024, and Memo from Fall 2023 to Hon. David 
    Rouzer, Chairman, and Hon. Grace F. Napolitano, Ranking Member, 
  Subcommittee on Water Resources and Environment, from Chad W. Lord, 
   Senior Director, Government Affairs, National Parks Conservation 
       Association, Submitted for the Record by Hon. David Rouzer
                                                September 10, 2024.
The Honorable David Rouzer,
Chairman,
Subcommittee on Water Resources and Environment, Committee on 
        Transportation and Infrastructure, Washington, DC 20515.
The Honorable Grace Napolitano,
Ranking Member,
Subcommittee on Water Resources and Environment, Committee on 
        Transportation and Infrastructure, Washington, DC 20515.
    Dear Chairman Rouzer and Ranking Member Napolitano:
    Please find enclosed a copy of a memorandum written by the National 
Parks Conservation Association (NPCA) last fall describing the 
potential consequences of the United States Supreme Court's decision in 
Sackett v. EPA to our national parks. I ask that it be included in the 
hearing record.
    NPCA's analysis demonstrates that the Supreme Court's decision 
strips protections for non-adjacent wetlands and many tributaries that 
play an important role in protecting national park waters. As the memo 
notes, water plays an important role in national parks. Although park 
waters within park boundaries are protected by park statutes and the 
National Park Service's Organic Act, many park waters originate outside 
park boundaries or are substantially affected by waters outside park 
boundaries. The recent narrowing of the definition of WOTUS leaves more 
of these upstream waterways and wetlands unprotected by federal law, 
which could have devastating impacts on many of our park waterways.
    All our waters are connected. Protecting and restoring wetlands and 
streams is critical to protecting the waters in our national parks. 
Healthy wetlands improve water quality by filtering polluted runoff 
from farm fields and city streets that otherwise would flow into 
rivers, streams, and water bodies across the country. Wetlands and 
tributaries provide vital habitat to wildlife, waterfowl, and fish, 
reduce flooding, and provide clean water for fishing, swimming, and 
paddling in national parks.
    Please do not hesitate to contact me with questions.
            Sincerely,
                                              Chad W. Lord,
  Senior Director, Government Affairs, National Parks Conservation 
                                                       Association.
                               __________
                               Attachment

MEMORANDUM FOR:   INTERESTED PARTIES

FROM:                  Chad Lord, Senior Director, Government Affairs
                        Rachel Kenigsberg, Senior Associate General 
Counsel

DATE:                   Fall 2023

REASON:                Potential Impacts of Sackett v. EPA on waters in 
and near units of the National Park System

                              Introduction
    On May 25, 2023, the U.S. Supreme Court released its decision in 
Sackett v. EPA, which reduced the scope of waters regulated by the 
Clean Water Act (CWA). Justice Alito's opinion held:

        ``The CWA's use of `waters' encompasses `only those relatively 
        permanent, standing or continuously flowing bodies of water 
        `forming geographic[al] features' that are described in 
        ordinary parlance as `streams, oceans, rivers, and lakes.') \1\
---------------------------------------------------------------------------
    \1\ Sackett, ET UX. v. Environmental Protection Agency ET AL. No. 
21-454. Pg. 14.

        ``[w]e hold that the CWA extends to only those wetlands that 
        are `as a practical matter indistinguishable from waters of the 
        United States.' Rapanos, 547 U.S., at 755 (plurality opinion) 
        (emphasis deleted). This requires the party asserting 
        jurisdiction over adjacent wetlands to establish `first, that 
        the adjacent [body of water constitutes] . . . `water[s] of the 
        United States,' (i.e., a relatively permanent body of water 
        connected to traditional interstate navigable waters); and 
        second, that the wetland has a continuous surface connection 
        with that water, making it difficult to determine where the 
        `water' ends and the `wetland' begins.' Id., at 742.)'' \2\
---------------------------------------------------------------------------
    \2\ Sackett, ET UX. v. Environmental Protection Agency ET AL. No. 
21-454. Pg. 22.

    On August 29, 2023, the Environmental Protection Agency (EPA) and 
U.S. Army Corps of Engineers (Corps) announced it would finalize a rule 
amending the 2023 definition of ``waters of the U.S.'' (WOTUS) to 
conform federal regulations with the Supreme Court's Sackett decision. 
The decision made clear that certain aspects of the 2023 rule were 
invalid, so the agencies' amendments conformed the regulatory text to 
the Court's holding (cited above). The agencies published their final 
rule on September 8, 2023.\3\
---------------------------------------------------------------------------
    \3\ 88 FR 3004. Sept. 8, 2023.
---------------------------------------------------------------------------
    The practical impact of the Court's decision and subsequent 
revision of federal regulations is still being evaluated. However, 
insight into the local effects of the Court's decision might follow the 
impacts identified in an analysis of a similar WOTUS definition 
proposed by the EPA and Army Corps in 2020. This analysis suggests that 
many waters upstream from national parks will no longer be protected by 
federal law.
    Water plays an essential role in national parks: they provide 
crucial habitat for fish and wildlife, offer recreational 
opportunities, provide drinking water for visitors and--in many cases--
are central to the parks' unique character and value. Such water-
dependent parks are found across the country. Although these waters are 
protected by statute and National Park Service (NPS) policies within 
park boundaries, many park waters originate outside park boundaries or 
are otherwise substantially affected by waters outside of parks, 
including tributaries and wetlands. The protection of water quality and 
wildlife habitat in national parks depends on the protection of these 
upstream wetlands and ephemeral streams. Since NPS relies on the 
federal protections provided under the Clean Water Act, the recent 
narrowing of the definition of WOTUS leaves more upstream waterways and 
wetlands unprotected by federal law.
    NPCA's analysis \4\ of the Navigable Waters Protection Rule \5\ 
(the ``2020 Rule''), which proposed a similar definition to the one 
adopted by the Supreme Court, showed that it would have stripped 
protections from many waters by revising the definition of ``waters of 
the United States.'' Specifically, the 2020 rule--like the Sackett 
decision--narrowed the scope of the Clean Water Act by removing federal 
protection for wetlands that do not have a continuous surface flow into 
covered waters (now defined as relatively permanent, standing or 
continuously flowing bodies of water `forming geographic[al] features' 
that are described in ordinary parlance as ``streams, oceans, rivers, 
and lakes.''). The 2023 Rule also narrowed what tributaries are 
federally protected to only ones that are relatively permanent, 
standing or continuously flowing.
---------------------------------------------------------------------------
    \4\ NPCA appreciates the work by the Emmett Environmental Law and 
Policy Clinic at Harvard Law School, which conducted this analysis on 
behalf of NPCA.
    \5\ 85 Fed. Reg. 22,250 (Apr. 21, 2020)
---------------------------------------------------------------------------
    The loss of federal protection for non-adjacent wetlands and many 
tributaries could be devastating to parks because these waterbodies 
play crucial roles in maintaining the biological, chemical and physical 
integrity of downstream park waters.\6\ Because of the similarity 
between the 2020 Rule and the recent Supreme Court decision, NPCA 
believes its analysis of the 2020 Rule is useful to describing the 
future impact of Sackett v. EPA on national park waters.
---------------------------------------------------------------------------
    \6\ See EPA & Dep't of the Army, Technical Support Document for the 
Clean Water Rule: Definition of Waters of the United States 101 (May 
27, 2015), https://www.epa.gov/sites/production/files/2015-05/
documents/technical_support_document_for_the_clean_water_rule_1.pdf.
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                          National Park Waters
    The National Park System has over 150,000 miles of rivers and 
streams flowing through it and over 4 million acres of lakes, oceans 
and other water bodies are found within park boundaries.\7\ These 
waters are integral aspects of many parks. Visitors rely on clean water 
for drinking, fishing and swimming and clean water ensures the 
integrity of wildlife habitat and ecosystems inside national parks.\8\ 
Moreover, many iconic parks rely on the presence of water for stunning 
visuals that attract millions of visitors. Nonetheless, as discussed 
below, many parks have impaired waters or waters that were threatened 
by the 2020 Rule and likely threatened by the Sackett decision.
---------------------------------------------------------------------------
    \7\ Water Quantity, Nat'l Park Serv., https://www.nps.gov/subjects/
protectingwater/water-quantity.htm.
    \8\ See Water Use in National Parks, Nat'l Park Serv., https://
www.nps.gov/
subjects/protectingwater/water-
use.htm#::text=Ecosystem%20Use&text=Many%20ecosystems
%20in%20national%20parks,of%20maintaining%20healthy%20river%20systems.
---------------------------------------------------------------------------
Saint Croix National Scenic Riverway, Wisconsin & Minnesota
    Saint Croix National Scenic Riverway could be at risk from this 
decision. The St. Croix River, which flows through the park, has 
recently experienced greater pollution because of expanded agriculture 
and urban development.\9\ The 2020 Rule and now likely the Sackett 
decision increased the possibility of further pollution to St. Croix 
National Scenic Riverway. It is estimated that 26 percent of the 
wetlands located in the park's watershed would have been unprotected 
under the 2020 Rule and 64-77 percent of the watershed's streams are 
ephemeral and at risk for loss of protection.\10\ The loss of federal 
protection for these waters could have had negative downstream 
consequences for the integrity of St. Croix National Scenic Riverway's 
waters.
---------------------------------------------------------------------------
    \9\ Abigail A. Tomasek et al., Wastewater Indicator Compounds in 
Wastewater Effluent, Surface Water, and Bed Sediment in the St. Croix 
National Scenic Riverway and Implications for Water Resources and 
Aquatic Biota, Minnesota and Wisconsin, 2007-08, U.S. Geological Survey 
3 (2012), https://pubs.usgs.gov/sir/2011/5208/pdf/sir2011-5208.pdf.
    \10\ Woods Decl.  58; Fesenmyer Decl.  13.
---------------------------------------------------------------------------
Indiana Dunes National Park, Indiana
    The decrease in waters protected also impact waters at Indiana 
Dunes National Park. Approximately 69 percent of the park's waterbodies 
are already impaired.\11\ The park is home to the Great Marsh--the 
biggest internal wetland on the Lake Michigan shoreline. NPCA helped 
secure funding for a restoration project aimed at rehabilitating the 
Great Marsh because recent agriculture and construction have disturbed 
its hydrology.\12\ However, NPCA's efforts will likely be hindered by 
the Sackett decision because part of Indiana Dunes National Park is 
located in the Chicago River watershed and experts estimated that 86 
percent of that watershed's wetlands may have lost protection and that 
39-56 percent of the watershed's streams are ephemeral.\13\ Another 
part of the park is also located in the Little Calumet-Galien watershed 
and 70 percent of that watershed's wetlands would have been unprotected 
under the 2020 rule and likely are federally unprotected after 
Sackett.\14\ It is likely that the pollution and hydrological 
disturbances already found in the park's waterbodies and in the Great 
Marsh will now get worse.
---------------------------------------------------------------------------
    \11\ See Indiana Dunes National Park Statistics, Nat'l Park Serv. 
(last updated Feb. 7, 2019), https://www.nps.gov/subjects/
protectingwater/his-parkreport.htm?unitType=Park&parkNames=
INDU.
    \12\ Id.
    \13\ Woods Decl.  55; Fesenmeyer Decl.  8.
    \14\ Woods Decl.  56.
---------------------------------------------------------------------------
Chaco Culture National Historical Park, New Mexico
    Ephemeral streams play an important role in many national parks, 
particularly in parks in the arid West where there is a high percentage 
of ephemeral waters. The United States Geological Survey (USGS) and NPS 
have identified several ``parks with significant intermittent or 
ephemeral drainages'' within the Four Corners region, including Chaco 
Wash in Chaco Culture National Historical Park.\15\ As noted by the 
report, a ``vast network of perennial, intermittent and ephemeral 
springs, pools, washes and streams sustain the larger water bodies and 
their associated riparian corridor,'' and these areas ``collectively 
support the diverse flora and fauna throughout the region.'' \16\ 
Specifically, the ephemeral features support the region's ``unique and 
significant water-dependent features such as hanging gardens and 
cottonwood stands.'' \17\ Potentially eliminating protection for 
certain ephemeral streams may have dire consequences for Chaco, given 
the integral roles they play.
---------------------------------------------------------------------------
    \15\ Juliane M. Bowen, Review of Available Water-Quality Data for 
the Southern Colorado Plateau Network and Characterization of Water 
Quality in Five Selected Park Units in Arizona, Colorado, New Mexico, 
and Utah, 1925 to 2004, Scientific Investigations Report 2008-5130, 
U.S. Geological Survey 5 (2008).
    \16\ Id.
    \17\ Id.
---------------------------------------------------------------------------
    NPS's Hydrographic and Impairment Statistics website indicates that 
the park has negligible amounts of currently impaired waters.\18\ 
However, the park's waters are at risk because the Army Corps has 
determined that ephemeral streams located near Chaco Culture National 
Historical Park will be impacted by oil and gas projects.\19\ The 
Bureau of Land Management has also noted that there may be negative 
impacts to surface water quality in the surrounding area and the map 
accompanying their analysis reveals that potential projects may be 
developed in Chaco's watershed.\20\ Downstream park waters are at risk 
because developers may no longer need a permit under section 402 or 404 
of the CWA when their projects impact certain ephemeral streams. NPCA 
has sought to protect Chaco Culture National Historical Park in New 
Mexico from the negative impacts of oil and gas developments,\21\ but 
the Sackett decision could hamper those efforts.
---------------------------------------------------------------------------
    \18\ See Chaco Culture National Historical Park Statistics, Nat'l 
Park Serv. (last updated Feb. 27, 2018), https://www.nps.gov/subjects/
protectingwater/his-parkreport.htm?unitType=
Park&parkNames=CHCU
    \19\ See Pls.' Mem. Law Supp. Mot. Summ. J, Conservation Law 
Foundation et al., v. Environmental Protection Agency, No. 1:20-cv-
10820-DPW (D. Mass. Oct. 15, 2020) at 39; Decl. Michelle Wu Exs. 21-24, 
Conservation Law Foundation et al., v. Environmental Protection Agency, 
No. 1:20-cv-10820-DPW (D. Mass. Oct. 15, 2020) [hereinafter ``Wu 
Decl.''].
    \20\ See Wu Decl. Ex. 25 (map of potential oil and gas developments 
around Chaco Culture National Historical Park, with potential projects 
inherently located in the park's watershed).
    \21\ See Advocacy in Action: Fragile Treasures Threatened in Chaco 
Culture National Historical Park, National Parks Conservation 
Association, https://www.npca.org/advocacy/25-fragile-treasures-
threatened-in-chaco-culture-national-historical-park.
---------------------------------------------------------------------------
Everglades National Park, Florida
    Nearly 100 percent of waters in the Everglades are already 
impaired,\22\ in part because ``land-use activities that impair water 
quality have intensified in the upstream watersheds.'' \23\ The 
Everglades is highly susceptible to the effects of upstream water 
practices and is increasingly threatened by nearby land development and 
agricultural practices.\24\ Water pollution has caused overpopulation 
of some coastal and inland plant species in the park, disturbing its 
ecosystem.\25\ Park waters are further threatened because the 2020 Rule 
would not have protected 81 percent of the wetlands in the Big Cypress 
Swamp watershed, which provides a significant portion of water flow 
into the park.\26\ Degraded water quality may threaten the substantial 
economic activity the park attracts. In 2019, the Everglades 
accumulated $110 million in visitor spending and helped support 1,510 
jobs.\27\
---------------------------------------------------------------------------
    \22\ See Everglades National Park Statistics, Nat'l Park Serv. 
(last updated July 27, 2020), https://www.nps.gov/subjects/
protectingwater/his-parkreport.htm?unitType=Park&park
Names=EVER.
    \23\ Water Quality in Big Cypress National Preserve and Everglades 
National Park--Trends and Spatial Characteristics of Selected 
Constituents, U.S. Geological Survey 3 (2004), https://pubs.usgs.gov/
wri/wri034249/wri03_4249_miller.pdf.
    \24\ Id. at 3-4.
    \25\ Donatto Surratt et al., Recent Cattail Expansion and Possible 
Relationships to Water Management: Changes in Upper Taylor Slough 
(Everglades National Park, Florida, USA), Environmental Management, 
49(3), 720-733 (2012), https://doi.org/10.1007/s00267-011-9798-x.
    \26\ Woods Decl.  53.
    \27\ South Florida National Parks and Preserve Create Over $352 
Million in Economic Benefit, Nat'l Park Serv. (June 16, 2020), https://
www.nps.gov/ever/learn/news/south-florida-national-parks-and-preserve-
create-over-352-million-in-economic-benefit.htm.
---------------------------------------------------------------------------
    The 2020 Rule would have also hampered wetlands restoration efforts 
in Everglades National Park. The park has undertaken a project seeking 
to restore 6,300 acres of wetlands within the park.\28\ Compensatory 
mitigation funds from permitted development projects that fill wetlands 
in the adjacent counties finance this unprecedented wetland restoration 
program. Because the 2020 Rule and probably the Sackett decision 
eliminated the need to obtain federal permits for filling many types of 
wetlands, such as those separated by a jurisdictional water by a 
manmade feature that does not have a direct hydrological surface 
connection with said water, compensatory mitigation could be reduced.
---------------------------------------------------------------------------
    \28\ Hole-in-the-Donut Restoration Project, Nat'l Park Serv. (last 
updated Oct. 13, 2020), https://www.nps.gov/ever/learn/nature/
hidprogram.htm.
---------------------------------------------------------------------------
Big Cypress National Preserve, Florida
    One hundred percent of Big Cypress National Preserve's waters are 
already impaired,\29\ in part because ``land-use activities that impair 
water quality have intensified in the upstream watersheds.'' \30\ Big 
Cypress is highly susceptible to the effects of upstream water 
practices and is increasingly threatened by nearby land development and 
agricultural practices.\31\ Preserve waters are further threatened 
because the 2020 Rule, and likely the Sackett decision, would not have 
protected 81 percent of the wetlands in the Big Cypress Swamp 
watershed, which is where the preserve is located.\32\ Degraded water 
quality may threaten the substantial economic activity the preserve 
attracts. In 2019, Big Cypress National Preserve accumulated $81.5 
million in visitor spending and helped support 1,080 jobs.\33\
---------------------------------------------------------------------------
    \29\ See Big Cypress National Preserve Statistics, Nat'l Park 
Service (last updated Aug. 16, 2020), https://www.nps.gov/subjects/
protectingwater/his-parkreport.htm?unitType=Park&park
Names=BICY.
    \30\ Water Quality in Big Cypress National Preserve and Everglades 
National Park--Trends and Spatial Characteristics of Selected 
Constituents, U.S. Geological Survey 3 (2004), https://pubs.usgs.gov/
wri/wri034249/wri03_4249_miller.pdf.
    \31\ Id. at 3-4.
    \32\ Woods Decl.  53.
    \33\ South Florida National Parks and Preserve Create Over $352 
Million in Economic Benefit, Nat'l Park Serv. (June 16, 2020), https://
www.nps.gov/ever/learn/news/south-florida-national-parks-and-preserve-
create-over-352-million-in-economic-benefit.htm.
---------------------------------------------------------------------------
    During 2017 and 2018, oil and gas exploration surveys in Big 
Cypress National Preserve injured many of the preserve's wetlands. In 
March of 2020, NPCA supported the Army Corp's position that the CWA 
would regulate future projects; however, the Corps rescinded that 
position in April 2020.\34\ Apart from oil and gas, the threat of off-
road vehicle (ORV) trail development as proposed by the National Park 
Service in 2022 would potentially require the agency to seek 404 
permits and compensatory mitigation. However, wetlands protections have 
now been significantly decreased.
---------------------------------------------------------------------------
    \34\ Army Corps Finds Significant Damage in Big Cypress National 
Preserve After NPS Green Lights Oil and Gas Exploration, National Parks 
Conservation Association (Mar. 11, 2020), https://www.npca.org/
articles/2486-army-corps-finds-significant-damage-in-big-cypress-
national-preserve-after.
---------------------------------------------------------------------------
Florissant Fossil Beds National Monument, Colorado
    NPS's Hydrographic and Impairment Statistics website reveals that 
Florissant has no currently impaired waters.\35\ However, the park is 
at risk of degradation because up to 35 percent of its miles of streams 
may have lost protection.\36\ These streams are at significant risk of 
becoming polluted, and because they flow directly to the park, threaten 
the water quality of Florissant Fossil Beds National Monument.
---------------------------------------------------------------------------
    \35\ See Florissant Fossil Beds National Monument Statistics, Nat'l 
Park Serv. (last updated Feb. 14, 2014), https://www.nps.gov/subjects/
protectingwater/his-parkreport.htm?unitType=
Park&parkNames=FLFO.
    \36\ Decl. Andrew Robertson (on file with author) (forthcoming).
---------------------------------------------------------------------------
Yellowstone National Park, Montana, Idaho and Wyoming
    NPS's Hydrographic and Impairment Statistics website reveals that 
Yellowstone's waterways are currently negligibly impaired.\37\ However, 
the park could be at risk of becoming degraded. The Tongue River basin 
in Montana lays upstream of Yellowstone River, and in 2015, about 35 
percent of its waters that were impacted by section 404 projects were 
non-relatively permanent ephemeral streams and non-floodplain 
wetlands.\38\ Such waters may no longer be jurisdictional under the 
CWA. The loss of protection for these basin waters can result in the 
degradation of Yellowstone River, due to downstream pollutants, and 
thereby harm Yellowstone National Park.
---------------------------------------------------------------------------
    \37\ See Yellowstone National Park Statistics, Nat'l Park Serv. 
(last updated Dec. 27, 2017) https://www.nps.gov/subjects/
protectingwater/his-parkreport.htm?unitType=Park&park
Names=YELL.
    \38\ Br. Amici Curiae Trout Unlimited et al., South Carolina 
Coastal Conservation League v. Wheeler, No. 2:20-cv-01687-DCN (D.S.C. 
July 17, 2020) at 27.
---------------------------------------------------------------------------
Great Smoky Mountains National Park, North Carolina and Tennessee
    Great Smoky Mountains National Park has waterways that are nearly 
54 percent impaired and shoreline miles that are about 93 percent 
impaired.\39\ Headwater streams in the park are threatened by high 
acidity and NPS notes that ``acidic streams are suspected to be the 
main cause of decline of the native brook trout population in the 
park.'' \40\ There are karst-depression wetlands outside of the park 
that will likely now be considered non-adjacent and will therefore be 
at risk of being dredged or filled, or having pollutants be discharged 
into them.\41\ Karst-depression wetlands are habitats ``for plants and 
animals that are otherwise rare or absent in southern uplands'' and are 
ecologically significant.\42\ Moreover, wetlands in general can act as 
buffers for acidity.\43\ The loss of CWA protection for these wetlands 
may prevent them from being helpful acidity buffers to the Great Smoky 
Mountains National Park, further endangering the native book trout and 
the area's recreational fishing industry.
---------------------------------------------------------------------------
    \39\ See Great Smoky Mountains National Park Statistics, Nat'l Park 
Serv. (last updated Mar. 29, 2018), https://www.nps.gov/subjects/
protectingwater/his-parkreport.htm?unitType=
Park&parkNames=GRSM.
    \40\ Great Smoky Mountains: Water Quality, Nat'l Park Serv., 
https://www.nps.gov/grsm/learn/nature/water-quality.htm.
    \41\ See Shaun A. Goho, Harvard Law School's Emmett Environmental 
Law and Policy Clinic, on Behalf of National Parks Conservation 
Association, Comment Letter on Proposed 2020 Rule to Revise Definitions 
of ``Waters of the United States'' 46 (Apr. 12, 2019), http://
clinics.law.harvard.edu/environment/files/2019/04/EELPC-NPCA-WOTUS-
comments.pdf.
    \42\ William J. Wolfe, Hydrology and Tree-Distribution Patterns of 
Karst Wetlands at Arnold Engineering Development Center, Tennessee, 
U.S. Geological Survey 2 (1996), https://pubs.usgs.gov/wri/wri96-4277/
pdf/wrir_96-4277_a.pdf.
    \43\ See, e.g., W.M. Mayes, et al., Wetland Treatments at extremes 
of pH: A review, 407 Sci. Total Env't 3944 (2007).
---------------------------------------------------------------------------
Kings Canyon National Park, California
    NPS's Hydrographic and Impairment Statistics website indicates that 
the park is not impaired.\44\ However, park waters could be in danger 
of becoming impaired because the park is located in the San Joaquin 
River watershed, which contains a substantial amount of non-relatively 
permanent ephemeral streams.\45\
---------------------------------------------------------------------------
    \44\ See Kings Canyon National Park Statistics, Nat'l Park Serv. 
(last updated Mar. 31. 2017), https://www.nps.gov/subjects/
protectingwater/his-parkreport.htm?unitType=Park&park
Names=KICA.
    \45\ Woods Decl.  38; Woods Decl. Ex. 9.
---------------------------------------------------------------------------
Gila Cliff Dwellings National Monument, New Mexico
    Approximately 21 percent of park waterways are impaired.\46\ 
However, park waters could be in danger of becoming impaired because 
the park is located in the Upper Gila watershed, which contains a 
substantial amount of ephemeral streams.\47\
---------------------------------------------------------------------------
    \46\ See Gila Cliff Dwellings National Monument Statistics, Nat'l 
Park Serv. (last updated Feb. 27, 2018), https://www.nps.gov/subjects/
protectingwater/his-parkreport.htm?unitType=
Park&parkNames=GICL.
    \47\ Woods Decl.  41; Woods Decl. Ex. 12.
---------------------------------------------------------------------------
Obed Wild and Scenic River, Tennessee
    About 28 percent of the park's waterways are impaired,\48\ and the 
park contains some ``severely polluted waters.'' \49\ Its water quality 
is threatened by out-of-park operations, such as wastewater discharges 
associated with upstream suburban and urban growth, and pollutants 
associated with timbering, mining, oil, and gas operations.\50\ Obed 
Wild and Scenic River most likely has ephemeral streams located within 
its watershed,\51\ which could have lost CWA protection. The park hosts 
``one of only two existing populations of the federally endangered 
Alabama lampshell mussel'' as well as the spotfin chub, a federally 
threatened fish species.\52\ Further impairment of the park's already 
degraded waters could jeopardize the survival of these vulnerable 
species.
---------------------------------------------------------------------------
    \48\ See Obed Wild and Scenic River Statistics, Nat'l Park Serv. 
(last updated Apr. 28, 2017), https://www.nps.gov/subjects/
protectingwater/his-parkreport.htm?unitType=Park&park
Names=OBRI.
    \49\ James Hughes et al., Long-Term Discrete Water Quality 
Monitoring at Big South Fork National River and Recreation Area, Blue 
Ridge Parkway, and Obed Wild and Scenic River, Nat'l Park Serv. 15 
(Dec. 2018), [hereinafter ``Long-Term Monitoring Report''].
    \50\ Id.
    \51\ See Rodney R. Knight et al., Hydrologic Data for the Obed 
River Watershed, Tennessee, Nat'l Park Serv. & U.S. Geological Survey 4 
(2014), https://pubs.usgs.gov/of/2014/1102/pdf/ofr2014-1102.pdf.
    \52\ James Hughes et al., Long-Term Discrete Water Quality 
Monitoring at Big South Fork National River and Recreation Area, Blue 
Ridge Parkway, and Obed Wild and Scenic River, Nat'l Park Serv. 17 
(Dec. 2018).
---------------------------------------------------------------------------
Blue Ridge Parkway, Virginia and North Carolina
    About 67 percent of the park's waterways are already impaired, as 
well as about 74 percent of its waterbodies and 68 percent of its 
shoreline miles.\53\ The impairment of many waters within Blue Ridge 
Parkway is caused by conditions that originate outside of the parks' 
boundaries, such as urban and residential development that occurs 
adjacent to the park.\54\
---------------------------------------------------------------------------
    \53\ See Blue Ridge Parkway Statistics, Nat'l Park Serv. (last 
updated Sept. 9, 2021), https://www.nps.gov/subjects/protectingwater/
his-parkreport.htm?unitType=Park&parkNames=BLRI.
    \54\ Long-Term Monitoring Report, supra note 80 at 18-19 (``These 
streams are 303d-listed for causes originating outside park 
boundaries.'').
---------------------------------------------------------------------------
Congaree National Park, South Carolina
    Over 24 percent of Congaree's waterways are impaired.\55\ Congaree 
has poor surface water quality and is threatened in part by the effects 
of municipal and industrial wastewater discharges, urbanization, 
stormwater runoff and upstream poultry concentrated animal feeding 
operations.\56\
---------------------------------------------------------------------------
    \55\ See Congaree National Park Statistics, Nat'l Park Serv. (last 
updated April 6, 2021), https://www.nps.gov/subjects/protectingwater/
his-parkreport.htm?unitType=Park&park
Names=CONG.
    \56\ JoAnn M. Burkholder et al., Natural Resource Condition 
Assessment: Congaree National Park, Nat'l Park Serv. (2018) xxii, 176.

                                 
Letter of September 11, 2024, to Hon. David Rouzer, Chairman, and Hon. 
 Grace F. Napolitano, Ranking Member, Subcommittee on Water Resources 
  and Environment, from Michele Stanley, Executive Vice President and 
  Chief Advocacy Officer, National Stone, Sand & Gravel Association, 
             Submitted for the Record by Hon. David Rouzer
                                                September 11, 2024.
The Honorable David Rouzer,
Chairman,
Subcommittee on Water Resources and Environment, Committee on 
        Transportation and Infrastructure, U.S. House of 
        Representatives, Washington, DC 20515.
The Honorable Grace Napolitano,
Ranking Member,
Subcommittee on Water Resources and Environment, Committee on 
        Transportation and Infrastructure, U.S. House of 
        Representatives, Washington, DC 20515.
    Dear Chairman Rouzer and Ranking Member Napolitano,
    On behalf of the 500 members of the National Stone, Sand & Gravel 
Association (NSSGA), I write to express our gratitude for the much-
needed oversight hearing titled Waters of the United States (WOTUS) 
Implementation Post-Sackett Decision: Experiences and Perspectives on 
September 11, 2024. Your attention to this matter is crucial and 
greatly appreciated.
    NSSGA represents the aggregates and industrial sand industry, and 
the companies that manufacture equipment and provide services. Our 
industry, with 9,000 facilities and well over 100,000 employees in 
high-paying jobs, plays a vital role in sustaining our lifestyle and 
constructing the nation's infrastructure and communities. The 2.5 
billion tons of aggregates we produce annually are fundamental 
components required for building communities, roads, airports, transit, 
rail, ports, clean water and energy networks. Aggregates are a local 
product because rocks are heavy, and excess transportation adds to the 
cost of the material. If operations are not allowed to expand or open 
near where they are needed, the materials end up costing more.
    The stone, sand and gravel industry urgently needs clarity and 
certainty regarding Clean Water Act (CWA) permitting. NSSGA's members 
frequently pull CWA permits when developing new quarries or determining 
if, when, or how to expand their existing quarry, and the lack of clear 
guidelines is a significant challenge. In May 2023, the Supreme Court 
issued a clear ruling to limit federal jurisdiction under the CWA in 
Sackett v. EPA.
    Sackett ruled on the jurisdiction of adjacent wetlands, providing a 
two-part test to make that determination, and ruled that the 
significant nexus test was inconsistent with the CWA and the original 
2023 WOTUS rule. The agencies are now relying on two new tests from 
Sackett to determine jurisdiction. They are relying on a new and 
untested `relatively permanent water' (RPW) test for tributaries and 
doing everything they can to claim jurisdiction of adjacent wetlands 
through the `continuous surface connection' (CSC) test. These new and 
unknown tests harm landowners and industry and put practitioners in a 
precarious position because the Environmental Protection Agency (EPA) 
and U.S. Army Corps of Engineers (USACE) determine jurisdiction case-
by-case. The Justices made it clear that an adjacent wetland is only 
jurisdictional when indistinguishable from an otherwise jurisdictional 
WOTUS feature.
    While the EPA and USACE have provided some webinars and recently 
began providing field Memorandum for Records (MFR) on certain 
jurisdictional determinations that are, again, on a case-by-case basis, 
there has been no publicly available guidance or efforts to define the 
ambiguous terms of RPW or CSC by the agencies. This puts many 
landowners, industry, and practitioners in a risky position because it 
is often difficult to determine whether a particular feature is WOTUS, 
and as such, could lead to incidental impacts coupled with civil 
penalties and possibly criminal prosecution. The agencies are defining 
CSC as any physical connection, even if that connection itself is not 
jurisdictional. The agencies state that back-to-back rainfall could 
satisfy the RPW test to make a drainage ditch, an otherwise dry 
feature, jurisdictional. This violates the clear language of an 
``indistinguishable'' connection in the unanimous Sackett opinion and 
was not promulgated via rulemaking, which violates the Administrative 
Procedure Act. The only option for our members is to request an 
approved jurisdictional determination (AJD) and wait for the agencies 
to tell them what is considered federal jurisdiction. These delays cost 
the industry real money and increase overall infrastructure project 
costs.
    The environmental consultants NSSGA members use to provide insight 
into filing permits have shared that they do not know what to expect 
until the agencies finally review their requests and issue an AJD. 
These consultants have shared examples of where they have found a 
feature to be ephemeral and, therefore, non-jurisdictional, but the EPA 
and USACE will interpret the data differently to claim that feature as 
an RPW. NSSGA encourages the agencies and Congress to sit down with 
industry to best determine how federal staff is making these decisions 
and to walk through how it is compliant with the Supreme Court's 
decisions.
    NSSGA applauds this committee for holding a hearing to explore how 
the federal agencies are disregarding a unanimous Supreme Court 
opinion. Essentially, the agencies have created a new significant nexus 
test in all but name and brought many development and infrastructure 
projects to a halt. With the expiration of the Infrastructure 
Investment and Jobs Act (IIJA) funding on the horizon, federal agencies 
should utilize their existing authorities to help the industry ramp up 
production to utilize best the investments made by Congress, and that 
should include expediting AJDs and permits under the CWA.
            Sincerely,
                                           Michele Stanley,
                 Executive Vice President & Chief Advocacy Officer,
                         National Stone, Sand & Gravel Association.

                                 
Letter of September 11, 2024, to Hon. David Rouzer, Chairman, and Hon. 
 Grace F. Napolitano, Ranking Member, Subcommittee on Water Resources 
    and Environment, from Rich Nolan, President and Chief Executive 
Officer, National Mining Association, Submitted for the Record by Hon. 
                              David Rouzer
                                                September 11, 2024.
The Honorable David Rouzer,
Chairman,
Subcommittee on Water Resources and Environment, Committee on 
        Transportation and Infrastructure, U.S. House of 
        Representatives, Washington, DC 20515.
The Honorable Grace Napolitano,
Ranking Member,
Subcommittee on Water Resources and Environment, Committee on 
        Transportation and Infrastructure, U.S. House of 
        Representatives, Washington, DC 20515.
    Dear Chairman Rouzer and Ranking Member Napolitano:
    On behalf of the National Mining Association (NMA) and our nearly 
280 members, thank you for holding today's hearing on the 
implementation of the U.S. Army Corps of Engineers (Corps) and U.S. 
Environmental Protection Agency's (EPA) Waters of the United States 
(WOTUS) rule following the U.S. Supreme Court's decision in Sackett v. 
EPA. We applaud your leadership in examining this critical issue and 
appreciate the opportunity to share our members' experiences.
                         Statement of Interest
    The NMA is the national trade organization that serves as the voice 
of the entire U.S. mining industry and the hundreds of thousands of 
American workers it employs. We work to ensure America has secure and 
reliable supply chains, abundant and affordable energy, and the 
American-sourced materials necessary for U.S. manufacturing, 
infrastructure, national security, and economic security, all delivered 
under world-leading environmental, safety and labor standards. Our 
members support clear and reasonable regulatory requirements that both 
protect the environment and support responsible development.
           U.S. Miners Need Regulatory Clarity and Certainty
    Our members regularly obtain federal Clean Water Act (CWA) permits 
and rely on efficient, predictable, and durable regulatory frameworks. 
Especially in this era of intense global competition and volatility, 
U.S. miners, including small businesses, need regulatory clarity and 
certainty to make confident decisions that will create jobs, strengthen 
local economies and communities, and create high-quality, American-made 
goods and services. This includes metallurgical coal for steelmaking 
and critical infrastructure, thermal coal for heating and energy both 
at home and for our allies abroad, and hardrock minerals from copper to 
gold that support renewable energy technologies, healthcare, and more.
    A year and a half after the Court's decision and a full year after 
the revised WOTUS rule went into effect, the agencies have not 
faithfully implemented Sackett or provided clear direction to the 
regulated community. The agencies' implementation improv is putting our 
members' projects and the communities that rely on them at risk. Our 
members are committed to protecting natural resources and promoting 
responsible development in the communities in which they live and work. 
But many of them are facing significant project delays and increased 
costs because the agencies cannot make the basic decision of whether a 
project needs a federal CWA permit.
    For example, several of our member companies are having difficulty 
obtaining an approved jurisdictional determination (AJD) from the 
Corps. In some cases, our members have been waiting a year or more for 
their AJD to be issued. Some draft AJDs have been elevated to Corps and 
EPA headquarters without any explanation or timeline for completion. In 
the meantime, our members are unable to move forward with their 
projects. In situations where our members do not have the luxury of 
time for the Corps to determine whether they need a CWA permit, some 
companies have been forced to take the route of a preliminary 
jurisdictional determination (PJD). PJDs concedes that all features on 
the site are federally jurisdictional, even if the agencies would have 
determined they are not.
    Ultimately, some companies are facing an impossible decision--
either to languish in regulatory limbo for months or even years waiting 
for the federal government to decide whether their project needs a CWA 
permit or to be forced to pull the plug on the project altogether.
    We urge the Subcommittee to ensure the agencies are faithfully 
applying the Sackett decision, processing jurisdictional determinations 
efficiently, and being transparent with our members about how the post-
Sackett regulatory regime is being implemented.
            Respectfully,
                                                Rich Nolan,
                    President and CEO, National Mining Association.

                                 
  Letter of September 6, 2024, to the Committee on Transportation and 
Infrastructure and the Subcommittee on Water Resources and Environment, 
 from Ryan Anderson, Commissioner, Alaska Department of Transportation 
  and Public Facilities, Submitted for the Record by Hon. David Rouzer
                                                 September 6, 2024.
Committee on Transportation and Infrastructure,
Subcommittee on Water Resources and Environment,
U.S. House of Representatives,
2165 Rayburn House Office Building, Washington, DC 20515.

WOTUS Implementation Post-Sackett Decision

    Dear Chairman Graves, Chairman Rouzer, and ranking members:
    I understand that the House Committee on Transportation and 
Infrastructure's Subcommittee on Water Resources and Environment is 
taking testimony on experiences and perspectives of the regulated 
public on the permitting of projects after the Supreme Court's decision 
in Sackett v. EPA. As the Commissioner of Alaska's Department of 
Transportation and Public Facilities (DOT&PF), in the state with 63% of 
the nation's wetlands, I can assure you that the Corp of Engineer's 
(ACE) wetland permitting system has only become slower and more 
burdensome post-Sackett. Specific examples of the additional burdens to 
the regulated public and slow delivery of permits and decisions 
include:
    1.)  ACE has not established processes or updated regulations for 
wetland delineations consistent with Sackett. From outward appearances, 
ACE is treating Sackett as a minor modification of the regulatory 
landscape rather than a landmark decision.

    2.)  Staff turnover at the Alaska Regulatory Division of the ACE 
has resulted in a limited understanding by staff of the unique 
environmental conditions found in Alaska and we are often dealing with 
out-of-state ACE project managers.

    3.)  The Regulatory Guidance Letter No. 05-07; Approved NEPA 
Categorical Exclusions for Nationwide Permit (NWP) 23 (2005) has not 
been updated to incorporate changes to the FHWA categorical exclusion 
list. This has limited the ability of DOT&PF to use NWP 23, and 
directly results ACE staff requiring DOT&PF to seek costly and time-
consuming individual permits, rather than the NWP that should be 
available for DOT&PF's activities.

    4.)  The Alaska Regulatory Division of the ACE has limited staff 
with expertise in Section 106 of the Historic Preservation Act and, 
until recently, the ACE has worked cooperatively with Professionally 
Qualified Individuals at DOT&PF fulfill ACE's obligation under Section 
106. The ACE's recent transition to an entirely independent Section 106 
process result in substantial confusion among Tribes and other 
consulting parties.

    5.)  The ACE's introduction of a new electronic permitting system 
for NWPs has slowed the process to receive routine permits. DOT&PF was 
not informed of the change and is trying to adapt to the new system 
with no guidance from the ACE.

    Overall, DOT&PF's experience with wetland permitting post-Sackett 
has been disappointing. The ACE's lack of clarity and guidance has had 
a negative impact on wetland permitting in Alaska.
    I appreciate your giving me the opportunity to report DOT&PF's 
experiences and perspectives on ACE's post-Sackett permitting.
            Sincerely yours,
                                             Ryan Anderson,
      Commissioner, Alaska Department of Transportation and Public 
                                                        Facilities.

cc:  Ryan Hambleton
    Corey Kuipers

                                 
  Letter of September 6, 2024, to Hon. Sam Graves, Chairman, and Hon. 
     Rick Larsen, Ranking Member, Committee on Transportation and 
  Infrastructure, and Hon. David Rouzer, Chairman, and Hon. Grace F. 
    Napolitano, Ranking Member, Subcommittee on Water Resources and 
Environment, from 24 State Attorneys General, Submitted for the Record 
                          by Hon. David Rouzer
                                                 September 6, 2024.
The Honorable Sam Graves,
Chairman,
Committee on Transportation and Infrastructure, U.S. House of 
        Representatives, 1135 Longworth House Office Building, 
        Washington, DC 20515.
The Honorable Rick Larsen,
Ranking Member,
Committee on Transportation and Infrastructure, U.S. House of 
        Representatives, 2163 Rayburn House Office Building, 
        Washington, DC 20515.
The Honorable David Rouzer,
Chairman,
Subcommittee on Water Resources and Environment, U.S. House of 
        Representatives, 2333 Rayburn House Office Building, 
        Washington, DC 20515.
The Honorable Grace Napolitano,
Ranking Member,
Subcommittee on Water Resources and Environment, U.S. House of 
        Representatives, 1610 Longworth House Office Building, 
        Washington, DC 20515.
    Dear Chairman Graves, Chairman Rouzer, Ranking Member Larsen, and 
Ranking Member Napolitano:
    We were happy to learn that the subcommittee on Water Resources and 
Environment intends to hold a hearing next week titled, ``Waters of the 
United States Implementation Post-Sackett Decision: Experiences and 
Perspectives.'' We write to provide our experiences and perspectives as 
States. Unfortunately, our recent experiences haven't been good.
            A. Sackett v. EPA and a Return to Statutory Text
    The Supreme Court's decision in Sackett v. EPA, 598 U.S. 651 
(2023), sought to refocus both the Environmental Protection Agency and 
the Army Corps of Engineers on the text of the Clean Water Act. For 
years, the Agencies had pushed broad understandings of what constituted 
``waters of the United States''--the key statutory phrase that defines 
the CWA's jurisdictional reach. See 33 U.S.C. Sec.  1362(7). Indeed, 
``by the EPA's own admission, almost all waters and wetlands [we]re 
potentially susceptible to regulation under [the most recent pre-
Sackett] test.'' Sackett, 598 U.S. at 669 (cleaned up). At the same 
time, the Agencies' rules often provided very little guidance to the 
parties who had to actually wrestle down whether a particular piece of 
land was subject to the Act, including the States. This breadth and 
ambiguity was a dangerous mix: ``because the CWA can sweep broadly 
enough to criminalize mundane activities like moving dirt, [the 
Agencies'] unchecked definition of `the waters of the United States' 
mean[t] that a staggering array of landowners [we]re at risk of 
criminal prosecution or onerous civil penalties.'' Id. at 669-70.
    Sackett should have been a step towards fixing things. Drawing on 
earlier precedents and a straightforward reading of the Act (among 
other things), Sackett held that ``the CWA's use of `waters' 
encompasses only those relatively permanent, standing or continuously 
flowing bodies of water forming geographical features that are 
described in ordinary parlance as streams, oceans, rivers, and lakes.'' 
598 U.S. at 671 (cleaned up). They must be ``connected to traditional 
interstate navigable waters.'' Id. at 678. Wetlands are also covered 
when they are ``indistinguishably part of a body of water that itself 
constitutes `waters' under the CWA.'' Id. at 676. That 
indistinguishability requires ``a continuous surface connection to 
bodies that are `waters of the United States' in their own right, so 
there is no clear demarcation between `waters' and wetlands.'' Id. at 
678. Applying these principles, the Supreme Court found that the 
Sacketts' property did not include covered ``waters'' where it 
contained wetlands across a road from a tributary that fed a creek that 
in turn fed an intrastate lake. Id. at 662-63, 684.
    Although EPA asked the Court to ``defer to its understanding of the 
CWA's jurisdictional reach,'' the Court explained that EPA's 
understanding was ``inconsistent with the text and structure of the 
CWA.'' Sackett, 598 U.S. at 679. Among other things, the Agencies' 
approach--which applied an ill-defined ``significant nexus'' test and a 
broad understanding of ``adjacent'' wetlands--showed too little respect 
to the States' traditional control over land and water regulation. Id. 
at 680. Beyond that, the administrative interpretation gave ``rise to 
serious vagueness concerns in light of the CWA's criminal penalties.'' 
Id. This approach was flatly wrong--it not only ``degraded States' 
authority'' but also ``diverted the Federal Government . . . into 
something resembling a local zoning board.'' Id. at 709 (Thomas, J., 
concurring) (cleaned up).
           B. The Agencies' Post-Sackett ``Conforming'' Rule
    Given how soundly the Court rejected the Agencies' approach, one 
might've expected the Agencies to significantly reevaluate their 
methods. They didn't. The administration first condemned the decision 
outright. See White House, Statement from President Joe Biden on 
Supreme Court Decision in Sackett v. EPA (May 25, 2023), https://
bit.ly/3Xx95V7 (``The Supreme Court's disappointing decision in Sackett 
v. EPA will take our country backwards.''). And just a few short months 
after the decision, the Agencies issued a terse ``conforming'' rule--
without notice and comment--that made only a handful of changes to the 
prior rule that the Supreme Court had so directly condemned. See 
Revised Definition of ``Waters of the United States''; Conforming, 88 
Fed. Reg. 61964 (Sept. 8, 2023). The Agencies tweaked the definition of 
adjacency (for wetlands purposes), removed the significant-nexus test, 
and dropped interstate wetlands. Id. at 61965-66.
    The Agencies otherwise left everything just as it had been pre-
Sackett. 88 Fed. Reg. at 61966 (explaining that ``[t]he agencies will 
continue to interpret the remainder of the definition of `waters of the 
United States' '' as they did in the ``2023 Rule,'' as they believed 
that was ``consistent with the Sackett decision''); see also id. at 
61967 (describing ``the agencies' intent . . . to preserve [any] 
remaining portions [of the 2023 Rule] to the fullest possible extent,'' 
even if other parts are struck down or stayed). Vague administrative 
guidance remains in place, and an expansive understanding of ``waters'' 
still leaves the Agencies free to assert jurisdiction over bits of 
water large and small. See Joint Coordination Memo. to the Field 
Between the U.S. Dep't of the Army, U.S. Army Corps of Eng'rs & the 
U.S. Env't Prot. Agency (Sept. 27, 2023), https://bit.ly/3SDQ4yi 
(``[T]he implementation guidance and tools in the [Final Rule] preamble 
that address the regulatory text that was not amended by the conforming 
rule . . . generally remain relevant to implementing the [2023 Rule], 
as amended.''). And even as Sackett reemphasized the importance of 
focusing on ``navigable'' waters, 598 U.S. at 672, the Agencies showed 
exactly zero concern for navigability. The Agencies also ominously 
warned that they would take additional actions to define the statute's 
reach, suggesting there's still more to come. 88 Fed. Reg. at 61966.
    The Agencies' 2023 rule, as purportedly ``conformed'' by their 
later one, remains inconsistent with Sackett in several important ways. 
For example:
      Although the ``relatively permanent'' standard is a 
central part of Sackett, the Agencies have provided effectively no 
guidance on how that standard is now to be applied. They instead left 
in place guidance from 2023 that had criticized the standard and dubbed 
it inadequate. See, e.g., Revised Definition of ``Waters of the United 
States,'' 88 Fed. Reg. 3004, 3005 n.2 (Jan. 18, 2023) (declaring that 
the ``relatively permanent standard identifies only a subset of the 
`waters of the United States' ''); id. at 3007 (``Sole reliance on the 
relatively permanent standard's extremely limited approach has no 
grounding in the Clean Water Act's text, structure, or history.''); id. 
at 3039 (``[T]he relatively permanent standard used alone runs counter 
to . . . science.''); id. at 3039-41 (attacking the relatively 
permanent standard at length).

      To the extent the Agencies did provide guidance, the 2023 
Rule proposed to rely--in some ill-defined way--on complicated mapping, 
modelling, and ``[g]eomorphic indicator[]'' assessment to determine 
whether waters are relatively permanent. 88 Fed. Reg. at 3087. This 
approach undermines the certainty and specificity that Sackett promoted 
through the use of easily understood items like ``geographical 
features.'' Sackett, 598 U.S. at 671 (cleaned up). The rule also does 
not discuss volume or duration of water flow, which should be a central 
part of evaluating the permanence of water.

      The 2023 Rule does not clearly or lawfully define the 
``continuous surface connection'' standard that, working with relative 
permanence, drives the jurisdictional analysis. Instead, it relies on 
connections through nonjurisdictional features, connections that lack 
water, and connections that are not ``continuous'' based on any 
ordinary understanding of that word. See, e.g., 88 Fed. Reg. at 3095 
(refusing to require a hydrologic connection or connection through 
jurisdictional waters and instead permitting connection through any 
discrete feature, like a pipe); id. at 3096 (``A continuous surface 
connection is not the same as a continuous surface water 
connection.''); contra Sackett, 598 U.S. at 678 (contemplating a water 
surface connection except for ``temporary interruptions . . . because 
of phenomena like low tides or dry spells'').

      The 2023 Rule refashions numerous intuitive concepts into 
the sort of administrative terms of art that would confuse regulated 
parties: ``adjacent,'' ``certain times of year,'' ``interstate 
waters,'' ``continuous surface connection,'' ``impoundments,'' 
``relatively permanent,'' ``seasonally,'' and ``tributaries'' are but a 
few examples of ordinarily straightforward terms that the 2023 Rule 
deploys in tortuous new ways. And it is replete with categories of 
regulated waters that leave so much wiggle room for the regulators that 
regulated parties will have little chance of convincing the Agencies 
that their lands and waters must be excluded. This vagueness creates a 
continuing threat of criminal charges for innocent landowners and 
others.

      The 2023 Rule covers all interstate waters, even if they 
are not connected to traditionally navigable waters. Contra Sackett, 
598 U.S. at 678. Sackett never hinted that waters are automatically 
federally regulated merely because they cross state borders.

      The 2023 Rule says the relatively permanent test ``is 
meant to encompass'' isolated waters like ``ponds'' and ``impoundments 
that are part of the tributary system.'' 88 Fed. Reg. at 3085. Such 
coverage is well beyond the ``streams, oceans, rivers, and lakes'' that 
were the focus of Sackett's test. 598 U.S. at 671. Disconnected, small 
volumes of water should be the most obvious waters falling outside the 
reach of ``waters of the United States,'' but the Agencies still seem 
to believe they are within their grasp.

      In litigation with the States, the Agencies have insisted 
that Sackett did not actually require that wetlands be 
``indistinguishable'' from traditional waters. Given that 
indistinguishability is a central part of Sackett, this insistence is 
bizarre. See Glynn Env't Coal., Inc. v. Sea Island Acquisition, LLC, 
No. CV 219-050, 2024 WL 1088585, at *4 (S.D. Ga. Mar. 1, 2024) (``The 
CWA only extends to wetlands that are indistinguishable from `waters of 
the United States' as a practical matter.''). By taking this approach, 
the Agencies have created a rule that is ``substantially broader than 
the indistinguishability test adopted in the decision.'' Tony Francois, 
``Same As It Ever Was''--An Application of a 1980s Classic to EPA and 
Army Regulations ``Conforming'' to Sackett v. EPA, CF004 ALI-CLE 627 
(Feb. 1, 2024).

    Altogether, the Agencies' ``conforming'' rule has not conformed to 
Sackett in many serious and substantial ways.
       C. The Agencies' On-The-Ground Implementation Post-Sackett
    The Agencies' continued unwillingness to meaningfully apply 
Sackett's requirements has led to problems on the ground.
    In one post-Sackett case, for instance, the Agencies instructed an 
Omaha field office to reconsider whether a wetland that is separated 
from a supposedly jurisdictional wetland by a 15-foot ``dirt track road 
and a seasonally plowed field'' (and that lacks even a ``culvert to 
maintain a connection'' to a navigable feature by way of the 
``jurisdictional'' wetland) is nevertheless jurisdictional. EPA & 
USACE, Memorandum to Reevaluate Jurisdiction for NWO-2003-60436, at 2 
(Feb. 16, 2024), https://bit.ly/4gfLLT1. These facts neatly track 
Sackett; it should be an easy case. Yet the Agencies suggested the 
separate wetlands may be treated as one jurisdictional wetland based on 
a slew of factors that need not include any hydrologic connection--and 
that may arise from only ``historic'' conditions. Id.
    In another recent memorandum applying the ``amended'' 2023 rule, 
the Agencies still insist that `` `indistinguishable' is not a separate 
element of adjacency,'' and ``the CWA does not require a continuous 
surface water connection between wetlands and covered waters.'' EPA & 
USACE, Memorandum on NAP-2023-01223, at 2 (June 25, 2024), https://
bit.ly/3Ze7XH7. The Agencies believed the CWA could reach a wetland 
connected to a tributary solely by a 70-foot-long pipe under a road. 
Id. at 3. They stressed that they did not need to observe any actual 
water flow to find the necessary ``continuous surface connection.'' Id. 
at 4. Here again, the Agencies seemed unwilling to focus on actual 
water and adjacency in the way instructed by Sackett.
    In still another instance, the Agencies returned a jurisdictional 
determination to the Buffalo field office that had found that a group 
of wetlands spanning a 165-acre area should not all be treated as a 
single wetland--and should not be deemed ``waters'' because they did 
not bear a continuous surface connection. EPA & USACE, Memorandum on 
LRB-2021-01386 (Feb. 16, 2024), https://bit.ly/47hONCf. The Agencies 
believed that ``a shallow subsurface connection or indicators of a 
shallow subsurface connection'' could be enough to link the wetlands 
together; these linked wetlands would then be evaluated together to 
decide if they had an continuous surface connection, such as abutment. 
Id. at 3. In other words, the Agencies pressed the field office to 
daisy-chain wetlands together through tenuous, underground, non-
hydrological connections so that even distant wetlands could be tied to 
traditionally jurisdictional waters.
    And in a last example, the Agencies asserted jurisdiction over a 
wetland connected to a ``tidally-influenced ditch'' by way of a 115-
foot-long ``non-relatively permanent drainage ditch and . . . two 
culverts that convey surface flow.'' EPA & USACE, Memorandum on SWG-
2023-00284, at 3 & n.3 (June 25, 2024), https://bit.ly/4edpaoh. This 
last example is especially troubling because it draws together distant 
water features by way of concededly non-jurisdictional water features 
like ditches and culverts with temporary flows (at best).
    Judging from public reports and anecdotal evidence we've received, 
these official determinations are signals of a broader trend. We 
understand, for example, that the Agencies are asserting jurisdiction 
over dry ditches crossing farms. See Dave Dickey, Is EPA Ignoring the 
Supreme Court Decision in Sackett?, Investigate Midwest (July 16, 
2024), https://bit.ly/3z7XRgl. EPA also brought an enforcement action 
against a landowner for building bulkheads on his farm; EPA 
``assert[ed] jurisdiction over many acres of [his] properties that, 
except for an occasional big storm, are dry land--much of it planted in 
crops.'' App'x to Mot. for Prelim. Injun. at 54, White v. EPA, No. 24-
1635 (4th Cir. Aug. 27, 2024), ECF No. 18-2. And we have been told that 
the Agencies have indicated in post-Sackett training sessions that they 
will continue to apply as aggressive an approach as they can.
    This federal-first mentality is a significant threat to the States. 
West Virginia is lined with ephemeral steams. Other States, like Alaska 
and Florida, are covered with expansive wetlands. Still other States, 
like North Dakota and Iowa, have unique water features like prairie 
potholes that could also draw the Agencies' attention. We could go on, 
but the point is the same: if the Agencies are going to continue to 
insist that just about every water feature (or sometimes, non-water 
feature) affords them jurisdiction, then States will be quickly pushed 
aside. Yet the States better understand local needs critical to water 
regulation. Federal control over all water regulation is not the best 
outcome for anyone.
    The States take seriously their responsibility to act as stewards 
of these vital resources. Protection against water pollution is 
important. But Congress has spoken to how it wants to tackle that 
problem; the Supreme Court has placed signposts, too. The Agencies 
cannot defiantly insist on going their own way.

                                * * * *

    Because the Agencies continue to construe ``waters of the United 
States'' inconsistently with Sackett, 27 States have filed suit, with 
most having already secured preliminary injunctions. See West Virginia 
v. EPA, No. 3:23-cv-00032 (D.N.D. filed Feb. 16, 2023); Kentucky v. 
EPA, No. 3:23-cv-00007 (E.D. Ky. filed Feb. 22, 2023); Texas v. EPA, 
No. 3:23-cv-00017 (S.D. Tex. filed Jan. 18, 2023). We anticipate those 
challenges will ultimately succeed. But if the States and others are to 
receive some relief from endless rounds of maneuvering from the 
Agencies (and the endless rounds of litigation that come with them), 
Congress will almost certainly need to act. Responsible agencies would 
have stayed the present rule, re-opened notice and comment, and revised 
their approach entirely. The Agencies instead dug in. It's now left to 
Congress to dig them out. See, e.g., Brandon Pang, Doesn't Look Like 
Anything to Me: Protecting Wetlands by Narrowing the Definition of 
``Waters of the United States'', 7 LSU J. Energy L. & Res. 223, 224 
(2019) (describing how the ``many controversial and unsuccessful 
attempts to resolve this issue'' show that it is ``for Congress to 
revisit and amend the CWA, redefining WOTUS once and for all'').
    We look forward to working with the subcommittee to move closer to 
the clarity and certainty that Sackett sought. Thank you again for the 
chance to offer our experiences and perspectives on this important 
issue.
            Sincerely,
Patrick Morrisey,
  West Virginia Attorney General.
Steve Marshall,
  Alabama Attorney General.
Tim Griffin,
  Arkansas Attorney General.
  
Treg Taylor,
  Alaska Attorney General.
Ashley Moody,
  Florida Attorney General.
Christopher M. Carr,
  Georgia Attorney General.
  
Todd Rokita,
  Indiana Attorney General.
Russell Coleman,
  Kentucky Attorney General.
Lynn Fitch,
  Mississippi Attorney General.
Austin Knudsen,
  Montana Attorney General.
John M. Formella,
  New Hampshire Attorney General.
Raul Labrador,
  Idaho Attorney General.
Brenna Bird,
  Iowa Attorney General.
Liz Murrill,
  Louisiana Attorney General.
Andrew Bailey,
  Missouri Attorney General.
Mike Hilgers,
  Nebraska Attorney General.
Drew Wrigley,
  North Dakota Attorney General.
Dave Yost,
  Ohio Attorney General.
Alan Wilson,
  South Carolina Attorney General.
Ken Paxton,
  Texas Attorney General.
Bridget Hill,
  Wyoming Attorney General.
Gentner F. Drummond,
  Oklahoma Attorney General.
Marty Jackley,
  South Dakota Attorney General.
Sean D. Reyes,
  Utah Attorney General.

                                 
Statement of American Rivers, Submitted for the Record by Hon. Grace F. 
                               Napolitano
    Since 1973, American Rivers has protected wild rivers, restored 
damaged rivers, and conserved clean water for people and nature. With 
headquarters in Washington, D.C. and nearly 400,000 supporters, 
members, and volunteers across the country, we are the most trusted and 
influential river conservation organization in the United States, 
delivering solutions for a better future.
    We are writing to you to express our gratitude for holding a 
hearing on ``Waters of the United States Implementation Post-Sackett 
Decision: Experiences and Perspectives'' and share our insights and 
continued commitment to the protection of America's rivers and streams, 
the source of much of American's drinking water.
              The Importance of Small Streams and Wetlands
    All of America's rivers are fed by small streams and wetlands--
representing tens of thousands of miles of waterways. Not only does 
polluting and destroying these small waterbodies lead to local 
pollution and flooding, but also the cumulative effects of losing 
smaller streams and rivers lead to massive impacts on our larger rivers 
and drinking-water systems. Approximately 117 million people--over one-
third of the total U.S. population--get some or all their drinking 
water from public drinking-water systems that rely in part on these 
streams.\1\ These small streams:
---------------------------------------------------------------------------
    \1\ 33 USC Sec. 1344
---------------------------------------------------------------------------
      Protect water quality, ensuring both humans and wildlife 
have access to clean water.
      Provide natural flood control. The network of small 
streams and wetlands hold and store billions of gallons of flood waters 
every year that might otherwise wash away homes and property.
      Sustain downstream ecosystems. Small streams and wetlands 
feed into bigger streams, then rivers, and then bays and estuaries. The 
food web and chemical processes that happen within the water are 
essential for healthy ecosystems, and it all starts with small streams 
and wetlands.

    Because small streams and wetlands are the source of the nation's 
fresh waters, changes that degrade these headwater systems affect 
streams, lakes, and rivers downstream. Land-use changes in the vicinity 
of small streams and wetlands can impair the natural functions of such 
headwater systems. Changes in surrounding vegetation, development that 
paves and hardens soil surfaces, and the total elimination of some 
small streams reduces the amount of rainwater, runoff, and snowmelt the 
stream network can absorb before flooding.
    The increased volume of water in small streams scours stream 
channels, changing them in a way that promotes further flooding. Such 
altered channels have bigger and more frequent floods. The altered 
channels are also less effective at recharging groundwater, trapping 
sediment, and recycling nutrients. As a result, downstream lakes and 
rivers have poorer water quality, less reliable water flows, and less 
diverse aquatic life. Algal blooms and fish kills can become more 
common, causing problems for commercial and sport fisheries. 
Recreational uses may be compromised. In addition, excess sediment can 
be costly, requiring additional dredging to clear navigational channels 
and harbors and increasing water filtration costs for municipalities 
and industry.\2\
---------------------------------------------------------------------------
    \2\ American Rivers, Where Rivers are Born, the Scientific 
Imperative for Protecting Small Streams and Wetlands. https://
www.americanrivers.org/resource/small-streams-wetlands/
---------------------------------------------------------------------------
    The natural processes that occur in small streams and wetlands 
provide Americans with a host of benefits, including flood control, 
adequate high-quality water, and habitat for a variety of plants and 
animals. Like small streams, wetlands are also key components of the 
nation's network of rivers and streams. Many wetlands, such as marshes 
that border lakes or streams, have obvious connections to surface 
waters. Other wetlands, however, seem cut off from stream networks--but 
that appearance is deceiving. Recent research further documents that 
even wetlands that are referred to as ``isolated'' are not isolated at 
all but have both hydrologic and biologic linkages to regional aquatic 
systems, and thus are referred to as ``geographically isolated'' and 
remain significantly related. Wetlands are almost always linked to 
stream networks and other wetlands through groundwater.
            Benefits Provided by Small Streams and Wetlands
    Small streams and wetlands provide natural flood control. When 
small streams and wetlands are in their natural state, they absorb 
significant amounts of rainwater, runoff, and snowmelt before flooding. 
However, when a landscape is altered, such as by a landslide or large 
forest fire or a housing development, the runoff can exceed the 
absorption capacity of small streams. Moreover, the power of additional 
water coursing through a channel can change the channel itself. Humans 
often alter both landscape and stream channels in ways that result in 
larger and more frequent floods downstream. Natural streambeds are 
rough and bumpy in ways that slow the passage of water. In watersheds 
that are not carefully protected against impacts of land development, 
stream channels often become enlarged and incised from increased 
runoff. Changed channels send water downstream more quickly, resulting 
in more flooding.
    Small streams and wetlands maintain water supplies. Headwater 
systems play a crucial role in ensuring a continual flow of water to 
downstream freshwater ecosystems, and USGS models show that headwater 
streams in the northeastern U.S. contribute 55 percent of mean annual 
water volume to fourth- and higher-order streams and rivers. Water in 
streams and rivers comes from several sources: water held in the soil, 
runoff from precipitation, and groundwater. Water moves between the 
soil, streams and groundwater. Wetlands, even those without any obvious 
surface connection to streams, are also involved in such exchanges by 
storing and slowly releasing water into streams and groundwater, where 
it later resurfaces at springs. Because of these interactions, 
groundwater can contribute a significant portion of surface flow in 
streams and rivers; conversely, surface waters can also recharge 
groundwater. If connections between soil, water, surface waters, and 
groundwater are disrupted, streams, rivers, and wells can run dry. Two-
thirds of Americans obtain their drinking water from a water system 
that uses surface water. The remaining one-third of the population 
relies on groundwater sources. The quality and amount of water in both 
of these sources respond to changes in headwater streams.
    Small streams and wetlands protect water quality. Materials that 
wash into streams include everything from soil, leaves, and dead 
insects to runoff from agricultural fields and animal pastures. One of 
the key ecosystem services that stream networks provide is the 
filtering and processing of such materials. Healthy aquatic ecosystems 
can transform natural materials like animal dung and chemicals such as 
fertilizers into less harmful substances. Small streams and their 
associated wetlands play a key role in both storing and modifying 
potential pollutants, ranging from chemical fertilizers to rotting 
salmon carcasses, in ways that maintain downstream water quality.
    Headwater streams maintain biological diversity. Headwater streams 
are probably the most varied of all running-water habitats; they range 
from icy-cold brooks tumbling down steep, boulder-filled channels to 
outflows from desert springs that trickle along a wash for a short 
distance before disappearing into the sand. As such, headwater systems 
offer an enormous array of habitats for plant, animal and microbial 
life. Regionally important riparian plants, such as alder and tamarisk, 
exercise a strong influence on headwater streams. Headwater streams in 
regions with beavers are vastly different from those in regions without 
beavers. Environmental conditions change throughout a stream network. 
In wet regions, streams grow larger and have wider channels, deeper 
pools for shelter, and more permanent flow as they move downstream. In 
arid regions and even humid regions during dry periods, headwater 
streams may become smaller downstream as water evaporates or soaks into 
a streambed. With this variety of influences, headwater streams present 
a rich mosaic of habitats, each with their own characteristic community 
of plants, animals, and microorganisms.
                     The Impacts of Sackett v. EPA
    The Supreme Court's Sackett decision has had the effect of severely 
confusing the landscape of stream and wetland protections, putting 
clean water at risk, increasing flood risk, destroying pristine habitat 
and putting significant burdens on states. These changes have real 
local impact, as American Rivers has found across the country.\3\
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    \3\ American Rivers. America's Most Endangered Rivers Report. See: 
https://www.americanrivers.org/wp-content/uploads/2024/04/
AmericasMostEndangeredRivers%C2%AEof
2024Report.pdf
---------------------------------------------------------------------------
California
    In the absence of federal protections from the Clean Water Act, 
each state has the authority to regulate their waters beyond the 
minimum standard. Most states opt to meet said minimum, but some go 
above it. In 2019, the California State Water Board predicted that 
federal protections could be shifting and acted to expand their 
definition of ``waters of the state''.
    The result was a return to the historically favored definition of 
``waters of the state'' referencing, all waters within the state. This 
includes the primary victims of the Sackett decision: isolated wetlands 
and small streams. California wetlands are a pertinent case, as their 
wetland acreage has grown from 2.9 million acres--10% of its historical 
extent--to 3.9 million acres \4\. When many places in the US are 
continuously losing wetlands, California is leading in wetland 
restoration. One such example is the Dutch Slough, a long-term effort 
to recover 30,000 acres of wetland habitat \5\. These projects function 
as more than simple conservation, as the Dutch Slough is predicted to 
offset carbon emissions equal to the annual use of 1000 cars. The 
restoration efforts are occurring at both a large and small scale as 
well, with the Southern California Restoration Project listing 306 
different projects, the large majority being smaller, community led and 
organized endeavors \6\.
---------------------------------------------------------------------------
    \4\ California Wetlands Portal. https://mywaterquality.ca.gov/
eco_health/wetlands/extent/
index.html#::text=According%20to%20the%20State%20of,wetlands%20that%20u
ses%20new
%20data
    \5\ Berkeley, Rausser College of Natural Resources, Wetland 
restoration helps California combat climate change. https://
ourenvironment.berkeley.edu/news/2023/04/wetland-restoration-helping-
california-combat-climate-change
    \6\ Southern California Wetlands Recovery Project 2024. https://
scwrp.org/projects/page/6/
---------------------------------------------------------------------------
Colorado
    Two-thirds of Colorado's waters have temporary flows, and Colorado 
has historically relied on federal protections for these waters. This 
is why on March 20th, 2023, Colorado House Democrats introduced a bill 
to restore protections to at least pre-Sackett levels, as California 
had done before \7\. Tom Caldwell, a local brewery owner commented ``As 
the owner of a brewery in a resort town I depend on cold, clean water 
to craft award-winning beers. Clean water allows me to run my business, 
create jobs and contribute sales tax revenue for my community [ . . . ] 
we need to protect our waterways and wetlands.''
---------------------------------------------------------------------------
    \7\ HB24-1379 Regulate Dredge & Fill Activities in State Waters. 
https://www.cohousedems.com/news/joint-release%3A-legislation-to-
protect-streams%2C-rivers-and-wetlands-in-colorado-introduced
---------------------------------------------------------------------------
New Mexico
    Imagine you are a rural farmer in an arid climate. In such places, 
usually your irrigation only flows seasonally, or perhaps after 
rainfall, and the river that you draw from is dry otherwise. For as 
long as you know, the river has been recognized as a legitimate water 
feature. Now imagine a new surveyor visiting during a period where 
there is no water in the river. From this they conclude that your 
river, for regulatory purposes, is not actually a body of water. This 
is sadly what could happen in New Mexico.
    New Mexico is likely the most dire place in the nation in the wake 
of Sackett. The ``continuous surface connection'' rule most obviously 
affects isolated wetlands. However, another condition for protection 
under Sackett is for the water to be ``relatively permanent''. In New 
Mexico, up to 95% of stream and river mileage does not run year round 
\8\. Overall, 67% of surface water supplying the public drinking water 
system in New Mexico comes from intermittent, ephemeral, or headwater 
streams, equaling 1996 miles overall (though that proportion can rise 
higher than 87% depending on location) \9\. Sackett has at once 
jeopardized all of this.
---------------------------------------------------------------------------
    \8\ New Mexico Waters Protected and At Risk in the Wake of the 
Sackett Decision. https://smumn.maps.arcgis.com/apps/dashboards/
1c2208e510114287a7b55ea1e7fc3f54
    \9\ National Hydrography Dataset Plus at medium resolution; Federal 
Safe Drinking Water Information System 4 Quarter 2006 Data. https://
www.epa.gov/sites/default/files/2015-06/
documents/
2009_10_15_wetlands_science_surface_drinking_water_surface_drinking_
water_nm.pdf
---------------------------------------------------------------------------
    Large rivers, like the Rio Grande, while still protected, are made 
up of thousands of small streams and are influenced by many isolated 
wetlands. If the smaller streams flowing into larger rivers are 
polluted, the result is a polluted river.
    This has real consequences. For the residents of Santa Fe, it means 
your river of the same name can be polluted through the 10 mile stretch 
that goes through the center of the city \10\. For the Tewa people, it 
means your land's life blood could turn to poison as White Rock Canyon 
is contaminated. For farmers using acequias (community-based irrigation 
ditches), it means your ability to grow the food traditional to your 
community is now in question. For trout fishers and white water 
rafters, it means the waters you rely on may no longer be able to 
sustain your business. And for almost all New Mexicans, the quality of 
your drinking water is at the mercy of how well treatment plants filter 
the intermittent stream and river water that is no longer regulated.
---------------------------------------------------------------------------
    \10\ Story Map on Protect New Mexico Waters. See: https://
nmwaters.org/#section_d74cb5116
---------------------------------------------------------------------------
North Carolina
    While Sackett ostensibly aims to settle confusion on what is 
regulated and what is not, it has actually done the opposite. In North 
Carolina, state regulations on waters are set to the minimum of what is 
federally required as of the Farm Act of 2023 \11\. There are over 4 
million acres of wetlands in North Carolina, totaling nearly 14% of its 
overall area \12\. In light of Sackett, even the most optimistic 
predictions are frightening, with anywhere between 34 and 72% of 
wetlands losing protections \13\. This variation is due mostly to how 
``indistinguishability'' is interpreted. When flooded, some wetland 
types, such as riverine swamp forests, appear indistinguishable from 
permanent streams and rivers that connect with it. If the broadest 
definition is applied, it could mean that almost no wetlands are 
regulated.
---------------------------------------------------------------------------
    \11\ GENERAL ASSEMBLY OF NORTH CAROLINA SESSION 2023 SENATE BILL 
582 RATIFIED BILL. https://www.ncleg.gov/Sessions/2023/Bills/Senate/
PDF/S582v7.pdf
    \12\ Carolina Wetlands Association. State of Wetlands. https://
www.carolinawetlands.org/
state-of-the-
wetlands#::text=Wetland%20Types%20and%20Abundance,million%20acres%20in
%20South%20Carolina.
    \13\ Atwater, Will. March 26, 2024. Environmental advocates use 
events to spread awareness about the potential loss of wetlands and the 
need to protect surface water. https://www.northcarolinahealthnews.org/
2024/03/26/environmental-advocates-use-events-to-spread-awareness-
about-the-potential-loss-of-wetlands-and-the-need-to-protect-surface-
water/
---------------------------------------------------------------------------
    Examples of this are found throughout North Carolina. Beaver Marsh 
is a 32-acre reserve just north of downtown Durham, along the Ellerbe 
Creek which runs through the city. The wetland in figure X is just 
across from the one in figure Y, but they have a critical difference in 
whether or not they are regulated under Sackett. One has regularly 
flowing streams into Ellerbe Creek, a regulated water, while the other 
has its (relatively permanent) stream blocked by a berm. This means the 
first is regulated and the second is not. Is there any real difference 
between the two in how they affect Ellerbe Creek? No, and frankly 
Sackett does not account for this in the slightest. Near Hill Street 
Park in Raleigh there is a headwater wetland that connects to a 
permanent stream, but the wetland itself only has surface water during 
parts of the year, making it ``distinguishable'' at most times, and 
therefore unregulated as well.
    These loose protections give free reign to developers to pollute as 
they please in these waters; pollution that will feed into what are 
legally protected waters such as Ellerbe Creek, and into drinking water 
sources as is often the case with headwater streams and wetlands \14\. 
However indistinguishability and relative permanence are defined going 
forward, it will be sorely inadequate to continue the state's 20 
yearlong trend of no-net-loss in wetlands as things are under Sackett 
\15\.
---------------------------------------------------------------------------
    \14\ Development of a Wetland Monitoring Program for Headwater 
Wetlands in North Carolina. May 2008. https://www.ncwetlands.org/wp-
content/uploads/NC_Headwater_Wetlands_
Monitoring_Grant-1-Final-Report-with-Revisions-10-2008-b.pdf
    \15\ Kurki-Fox, Jack; Branan, Andrew; Burchell, Mike; N.C. 
Cooperative Extension, The Status and Trends of Wetland Loss and Legal 
Protection in North Carolina. https://content.ces.ncsu.edu/the-status-
and-trends-of-wetland-loss-and-legal-protection-in-north-carolina
---------------------------------------------------------------------------
Georgia
    The Okefenokee Swamp, located mostly in southern Georgia, is a 
national treasure. Okefenokee is an almost entirely untouched 
blackwater swamp spanning 438,000 acres, containing over 620 species of 
plants and hundreds of species of birds, reptiles, and mammals \16\. It 
is uniquely undisturbed by human activity, so much so that it is under 
consideration to become a UNESCO World Heritage Site for its pristine 
state \17\. Sackett is the latest, and perhaps greatest, challenge in 
preserving this national treasure.
---------------------------------------------------------------------------
    \16\ United States Fish and Wildlife Service. Okefenokee National 
Wildlife Refuge Amphibians, Fish, Mammals and Reptiles List. https://
www.fws.gov/sites/default/files/documents/okfmam.pdf
    \17\ UNESCO World Heritage Center 1992-2024. https://
whc.unesco.org/en/tentativelists/5252/
---------------------------------------------------------------------------
    Twin Pines Minerals applied to mine for titanium oxide in 582 acres 
of Trail Ridge in March 2020 \18\. Trail Ridge borders the east of 
Okefenokee, with the closest site being just a few hundred feet away. 
The mining will take place on and near wetlands that are dangerously 
close to Okefenokee, with predictions stating the project will withdraw 
more than 1.4 million gallons of water a day \19\. The company's self-
funded study concluded this would not negatively impact Okefenokee; 
researchers at the University of Georgia along with other institutions 
across the nation strongly insist otherwise \20\.
---------------------------------------------------------------------------
    \18\ Twin Pines Minerals, LLC. https://
twinpinesmineralscharlton.com/
    \19\ Associated Press. March 4, 2024. Mining Company Can't Tap 
Water Needed for Okefenokee Wildlife Refuge, US Says https://
www.usnews.com/news/us/articles/2024-03-04/mining-company-cant-tap-
water-needed-for-okefenokee-wildlife-refuge-us-says
    \20\ Comments on TPM LLC Draft Mining Land Use Plan (and supporting 
documents) submitted to Georgia EPD. See: https://
protectokefenokee.org/wp-content/uploads/2023/03/MLUP-comments-CRJ-
submitted-to-EPD.pdf
---------------------------------------------------------------------------
    The mine has a back and forth history. Their application to federal 
regulators went through under the Trump-era Navigable Waters Protection 
Rule in 2022, which concluded similarly to Sackett that wetlands 
without surface connection should not receive protections \21\. Though 
the Biden administration reversed those rules, the advent of Sackett 
guarantees that Trail Ridge is not federally protected and is subject 
only to state level regulation. Currently, the Georgia state government 
has approved a ``demonstration mine'', with Twin Pines mining hoping to 
prove they can operate with minimal environmental impact \22\. Multiple 
organizations such as Georgia River Network, the Southern Environmental 
Law Center, and more have already pointed out the flaws in leaving the 
long-term health of Okefenokee up to a rigged ``experiment'' \23\.
---------------------------------------------------------------------------
    \21\ Bynum, Russ. Associated Press. August 22, 2022. https://
apnews.com/article/lawsuits-georgia-wildlife-army-
90389deefb681953d68fd69cb2054e2d
    \22\ Twin Pines Minerals Proposed Saunders Demonstration Mine SAS-
2018-00554 Application via PowerPoint Presentation. See: https://
www.sas.usace.army.mil/Portals/61/docs/TPM%20Permit%20Application%20-
%20TTL.pdf?ver=2020-05-12-215022-183
    \23\ [Editor's note: American Rivers did not list a citation for 
footnote 23.]
---------------------------------------------------------------------------
    There is federal will to save Okefenokee, but the methods are 
uncertain and treading new ground. The Fish and Wildlife Services have, 
in an unprecedented move, claimed federal rights to Okefenokee's water, 
hoping to stop development on those grounds \24\. This shows that there 
is strong federal will to protect Okefenokee, but it is much harder to 
achieve with the loss of protections following Sackett. There is still 
opportunity to act, and the outpouring of public support is a positive 
sign. The recent public comment period in the Georgia state legislature 
attracted 78,632 written comments and 115 oral comments, with almost 
none of them being in favor of the mine \25\. This is a chance to send 
a national message that, despite opposing forces, the country is still 
in the business of protecting our waters.
---------------------------------------------------------------------------
    \24\ Letter from U.S. FWS to Georgia EDP. See: https://
aboutblaw.com/bc54
    \25\ Nolin, Jill. Georgia Recorder. March 6, 2024. Okefenokee mine 
opponents, backed by feds, call for Georgia EPD to thwart Twin Pines 
dig. https://georgiarecorder.com/2024/03/06/okefenokee-mine-opponents-
backed-by-feds-call-for-georgia-epd-to-thwart-twin-pines-dig/
---------------------------------------------------------------------------
                        Why Sackett is a Burden
    Today, now more than ever, Congress must reaffirm its commitment to 
the objective of the original, bipartisan Clean Water Act by 
reinstating protections for waters and wetlands that the Sackett 
decision removed.
    Even in an ideal world where every state has comprehensive 
individual protections, Sackett would still be a burden. Aside from the 
improbability of every state being willing to responsibly protect their 
waters, agency resources limit what can actually be done. State level 
organizations simply do not have the size or funding that the EPA does. 
Perhaps this is not an issue for a wealthy state like California, but 
what of places like New Mexico, West Virginia, or Louisiana? The power 
of those state governments does not equal what is possible on a federal 
level. In the long term, a federal return to standard is necessary; 
this is not a case where leaving it to the states is the most efficient 
or fair solution.
                            Recommendations
    The Clean Water Act was passed with a goal to ``restore and 
maintain the chemical, physical and biological integrity of the 
Nation's waters.'' While the Clean Water Act, and the EPA's efforts to 
enforce it have made gains in improving our nation's waters since the 
passage of the act, there is still much work to do. We recommend the 
following:
    1.  Support a comprehensive definition of the ``Waters of the 
United States'' that includes small streams and wetlands as Congress 
intended when the law was amended and passed in 1972.
    2.  Increase federal funding to conservation programs that 
prioritize acquiring lands through voluntary measures such as easements 
to protect aquatic areas or programs that compensate landowners not to 
develop on wetlands.
    3.  Enhance enforcement of state, tribal, and local water 
protections currently on the books and increase funding for enforcement 
agencies.
    4.  Support a scientifically robust review process under Section 
401 to ensure states and tribes have the specific authority to 
condition or deny water quality certifications for infrastructure 
projects.
    5.  Direct EPA to update its technology-based limits for industry 
water pollution control systems as frequently and consistently as 
possible to protect public health.
    6.  Strengthen the Clean Water Act by closing its loophole for 
agricultural runoff and other ``nonpoint'' sources of pollution, which 
are by far the largest sources of impairments in waterways across the 
U.S.
    7.  Consider more consistent, universal guidelines for waterway 
impairment designations for all 50 states, and for gauging unhealthy 
levels of key pollutants like nitrogen.
    8.  Make it easier to effectively enforce key provisions and 
requirements of the Clean Water Act, including the cleanup plans--
called ``Total Maximum Daily Loads''.
    9.  Boost funding for the EPA and state environmental agency staff 
required to measure water quality, and to develop and implement the 
cleanup plans needed to bring impaired waterways back to life.
    10.  Require EPA to produce and publish an updated National Water 
Quality Assessment report, which they are required to send to Congress 
biennially under section 305(b) of the Clean Water Act. Congress should 
also require the EPA to update their data requirements to include 
improved information on stormwater pollution.

    We would like to thank the Subcommittee on Water Resources and the 
Environment for the opportunity to share these observations and our 
report with you. We would be happy to answer any additional questions 
the committee may have on this subject and we are happy to be a 
resource in the future. Our organization is fully committed to working 
with you on these timely federal water issues and appreciate your 
strong leadership. Thank you for your consideration.

            Sincerely,
                                                Gary Belan,
                               Senior Director, Clean Water Supply.
                                          Jaime D. Sigaran,
               Associate Director, Policy and Government Relations.

                                 
 Letter of September 10, 2024, to Hon. Sam Graves, Chairman, and Hon. 
     Rick Larsen, Ranking Member, Committee on Transportation and 
  Infrastructure, and Hon. David Rouzer, Chairman, and Hon. Grace F. 
    Napolitano, Ranking Member, Subcommittee on Water Resources and 
 Environment, from Felice Stadler, Vice President, Government Affairs, 
  National Audubon Society, Submitted for the Record by Hon. Grace F. 
                               Napolitano
                                                September 10, 2024.
The Honorable Sam Graves,
Chair,
Committee on Transportation and Infrastructure.
The Honorable Rick Larsen,
Ranking Member,
Committee on Transportation and Infrastructure.
The Honorable David Rouzer,
Chair,
Subcommittee on Water Resources and Environment.
The Honorable Grace Napolitano,
Ranking Member,
Subcommittee on Water Resources and Environment.

Re:  Subcommittee Hearing Titled, ``Waters of the United States 
Implementation Post-Sackett Decision: Experiences and Perspectives''

    Dear Chair Graves, Ranking Member Larsen, Subcommittee Chair 
Rouzer, and Subcommittee Ranking Member Napolitano,
    I am writing in response to the announced hearing to examine how 
the U.S. Environmental Protection Agency (EPA), the U.S. Army Corps of 
Engineers (USACE), states, and other stakeholders are implementing the 
Supreme Court's decision in Sackett v. EPA. On behalf of the National 
Audubon Society and our 1.4 million members and supporters, I write to 
reiterate concerns that the Sackett decision undermines the Clean Water 
Act and threatens water quality throughout the nation, impacting birds, 
people, and communities.
    Audubon's mission is to protect birds and the places they need--and 
birds need clean water. Waterways throughout the United States serve as 
essential habitat for birds and other wildlife, including smaller 
waterbodies like seasonal streams and isolated wetlands. These water 
bodies provide crucial sources of drinking water, food, and nutrition 
for birds. Birds also use lakes, streams, and wetlands for breeding and 
nesting, as well as for rest stops during long migratory journeys. 
Something that may look like a disconnected pond to us could be 
providing critical migratory habitat for birds traveling throughout the 
country.
    Sadly, we know we have lost 3 billion birds in the past 50 years--
in part due to dwindling wetlands and significant development of 
natural spaces--and we know that two-thirds of North American bird 
species are at risk of extinction from climate change. Birds are 
telling us that action is needed now to stop these declines. The health 
of birds is directly tied to the health of communities across the 
nation and declines in bird health also impact the economy directly, as 
96 million Americans engage in birding-related activities every year, 
contributing $100 billion to local economies annually.
    Unsurprisingly, the same threats facing birds are also impacting 
people and communities throughout the nation. Wetlands and seasonal 
streams provide more than just critical bird habitat--they also provide 
us with nature's filters to clean our drinking water and protect us 
from storms, floods, and other climatic stressors. Too many low-income 
communities, Tribal communities, and communities of color do not have 
consistent access to safe, affordable drinking water. Strong 
protections under the Clean Water Act are needed to support clean water 
and flood resilience for communities.
    The Sackett decision curtailed the ability of the EPA and the USACE 
to regulate waters of the United States, particularly wetlands and 
smaller waterways which may be seasonal or ephemeral. The ruling 
limited the ability of the federal agencies to permit activities on 
many of these smaller waterways and opened opportunities for 
unregulated development to occur in many of these critical ecosystems. 
The ruling relegated regulatory authority of smaller waterways back to 
the states--in essence creating a 50-state patchwork of water 
regulations across the nation.
    As birds migrate throughout the hemisphere, so too does water 
migrate throughout watersheds and across political boundaries. This 
makes regulation of clean water a federal responsibility--as the 
bipartisan creators of the Clean Water Act originally intended. 
Reducing federal regulatory jurisdiction decreases the ability for 
federal oversight and management of our nation's waterways. Before 
Sackett, federal permits were subject to NEPA review and many states do 
not have a state-level equivalent for environmental review and public 
comment.
    The 50-state patchwork of regulations creates uncertainty. 
Establishing an appropriate state regulatory program requires 
resources, time, dedication, expertise, and staff. Wetland permitting 
requires scientific and technical expertise which many state agencies 
lack. Without sufficient budgeting, expertise, and authority, any 
state-created program is destined to fail in protecting smaller 
waterbodies from unregulated dredge and fill.
    Audubon urges your Committee to move past partisan reactions to the 
Sackett decision and focus on solutions that birds and people need. 
Congress must take action to fill the regulatory gap created by Sackett 
and ensure the true intent of the Clean Water Act--providing as many 
tools in the toolbox as necessary to protect all of our nation's 
waterways for birds and people.
            Sincerely,
                                            Felice Stadler,
      Vice President, Government Affairs, National Audubon Society.

                                 
 Letter of September 10, 2024, to Hon. Sam Graves, Chairman, and Hon. 
     Rick Larsen, Ranking Member, Committee on Transportation and 
  Infrastructure, and Hon. David Rouzer, Chairman, and Hon. Grace F. 
    Napolitano, Ranking Member, Subcommittee on Water Resources and 
Environment, from the Clean Water for All Coalition, Submitted for the 
                   Record by Hon. Grace F. Napolitano
                                                September 10, 2024.
The Honorable Sam Graves,
Chairman,
Committee on Transportation and Infrastructure, United States House of 
        Representatives, 1135 Longworth House Office Building, 
        Washington, DC 20515.
The Honorable Rick Larsen,
Ranking Member,
Committee on Transportation and Infrastructure, United States House of 
        Representatives, 2163 Rayburn House Office Building, 
        Washington, DC 20515.
The Honorable David Rouzer,
Chairman,
Subcommittee on Water Resources and Environment, United States House of 
        Representatives, 2333 Rayburn House Office Building, 
        Washington, DC 20515.
The Honorable Grace Napolitano,
Ranking Member,
Subcommittee on Water Resources and Environment, United States House of 
        Representatives, 1610 Longworth House Office Building, 
        Washington, DC 20515.

Re:  Subcommittee Hearing Titled, ``Waters of the United States 
Implementation Post-Sackett Decision: Experiences and Perspectives''

    Chairman Graves, Ranking Member Larsen, Subcommittee Chairman 
Rouzer, and Subcommittee Ranking Member Napolitano,
    The undersigned members and partners of the Clean Water for All 
Coalition are writing in response to the announced hearing to examine 
how the U.S. EPA (``EPA''), the U.S. Army Corps of Engineers 
(``USACE''), states, and other stakeholders are implementing the 
Supreme Court's decision in Sackett v. EPA. We write to share our 
concerns that the Supreme Court's decision makes it impossible for the 
country to achieve Congress's objective in passing the Clean Water Act: 
to ``restore and maintain the chemical, physical, and biological 
integrity of the Nation's waters.''
    Clean Water for All is a national coalition that brings together 
diverse organizations to advance equitable policies that promote and 
increase clean water protections, access, and affordability across the 
nation. Our members are from all across the country and include hunters 
and fishers, local waterkeepers, environmental justice advocates, and 
sustainable businesses.
    The membership recognizes that clean and abundant water resources 
are important for public health, agriculture, transportation, flood 
control, climate resilience, energy production, recreation, fishing and 
shellfishing, municipal and commercial uses, indigenous cultural 
practices, and much more--because our waters are all intimately 
connected. For example, polluting or destroying a community's local 
wetlands or streams threatens its groundwater reserves and can worsen 
flood risks during intense storms. What happens to a community's 
streams and wetlands will also impact the quality of the water that 
their downstream neighbors have, which they often rely on for drinking 
water and other important uses.
    Before the Clean Water Act, a patchwork of state requirements 
failed to prevent water bodies--from large, iconic rivers and lakes to 
neighborhood creeks and ponds--from harmful levels of pollution. A 
state-by-state approach without a federal backstop of safeguards 
enabled a ``race to the bottom,'' where states with weaker protections 
became safe havens for polluters. It led to some of the worst 
environmental crises in our nation's history:
      The Delaware River was so polluted it darkened the paint 
on passing ships.
      26 million fish died in a single Florida lake in January 
1969, triggered by food processing plants dumping waste into a creek 
upstream.
      An oil spill in 1969 near Santa Barbara spewed an 
estimated 3 million gallons of crude oil into the Pacific Ocean--
killing thousands of birds, fish and sea mammals.
      Lake Erie was considered ``functionally dead,'' with 
pollution from factories, sewage and farms triggering algal outbreaks 
that smeared beaches and killed fish.
      The federal government dumped nearly 50,000 drums of low-
level radioactive waste in the Pacific Ocean west of San Francisco 
between 1946 and 1970.
      General Electric discharged more than one million pounds 
of Polychlorinated Biphenyls (PCBs) in the Hudson River over a 30-year 
period. A 200-mile stretch of the river remains contaminated to this 
day.

    In response, Congress passed the Clean Water Act--an ambitious law 
that aimed to make water bodies swimmable and fishable by 1983 and to 
eliminate pollutant discharges by 1985. The law's various protections--
including its broad applicability to waters of all types--drove towards 
these goals and were instrumental in waterways across the nation 
becoming far cleaner. Waters that were once effectively open sewers 
came back to life and became treasured destinations for recreation and 
commerce.
    But the Clean Water Act did not fully achieve its objective, as two 
recent reports make clear. In March, the U.S. Fish & Wildlife Service 
released a report to Congress about wetland trends in the continental 
United States during the period from 2009-2019. That report revealed 
that the rate of wetlands loss in the country accelerated in recent 
years, and that the nation has lost approximately 670,000 acres of 
vegetated wetlands, mostly by conversion to much less ecologically 
valuable ponds. And just two weeks ago, EPA's Office of Water released 
the National Lakes Assessment 2022 Report, evaluating the health of our 
nation's lakes between 2017 and 2022. Half of the country's lakes are 
in poor condition due to nutrient pollution, and both the number of 
lakes with good shallow water habitat and the number of lakes with good 
ratings for lakeshore disturbance decreased by nine percent. The 
detection of microcystins--toxins created by algae outbreaks--increased 
by almost 30 percentage points, to 50%. These results reveal that the 
work of the Clean Water Act was far from done.
    And then the Supreme Court made things far worse. In May 2023, the 
Court decided Sackett v. EPA, the worst judicial rollback of 
environmental protections ever. That ruling said that the federal Clean 
Water Act does not protect most types of wetlands, even though they are 
critically important by themselves and for the health of all kinds of 
other waterbodies. The Court also limited the law's ability to protect 
many other waters. The decision removed federal protections for 
millions of acres of wetlands and thousands of stream miles throughout 
the country. The decision has serious consequences across the country 
and has endangered the drinking water sources of tens of million 
people. The harm of the Court's decision is difficult to overstate, and 
it will only get worse with time, as new activities destroy and pollute 
waters without the kinds of pollution controls and required mitigation 
the Clean Water Act would have required.
    Yet polluters are not satisfied. They are attempting to remove even 
more protections across the country. For one, through litigation 
challenging the regulatory changes following Sackett, several parties 
are pushing for rulings that would further weaken the Clean Water Act 
and would make water bodies' protections depend on novel and vague 
concepts--an approach completely at odds with their alleged interest in 
clarity and regulatory stability. In addition, corporate polluters and 
developers have worked to weaken state-level clean water protections 
and oppose states' efforts to strengthen their safeguards to fill in 
the gap Sackett created, which is in substantial tension with rhetoric 
supporting states' ability to formulate their own policies on clean 
water.
    After Sackett, countless water bodies will be vulnerable to 
pollution and destruction without Clean Water Act safeguards; these 
harms could be magnified if industry efforts succeed. Protections for 
wetlands and other waters left at risk vary significantly from state to 
state. And, as the enclosed report, ``Sackett v. EPA: The State of Our 
Waters One Year Later'' by Clean Water for All, reveals, enacting 
protections to fill the gaps the decision created is difficult--
especially when some states have sought to weaken their programs to 
limit protections only to those waters that the Court allowed the 
federal law to cover.
    Without intervention, the deregulation from Sackett will exacerbate 
these negative trends, endangering the wetlands and waterways we depend 
on for drinking water, flood resilience, thriving economies, and 
recreation and enjoyment. Everyone should have to play by the same set 
of rules, and whether your water is protected shouldn't depend on what 
zip code you happen to live in. Ultimately, leaders in Congress will 
need to repair the harm that the Supreme Court caused. In the meantime, 
however, because each day that passes with diminished protections will 
mean more wetlands and streams polluted and destroyed, we encourage 
Congress to support state efforts to strengthen their own laws.
            Sincerely,
Alabama Rivers Alliance.
American Rivers.
Amigos Bravos.
Bayou City Waterkeeper.
Bright Neighborhood CDC.
Center for Water Security and Cooperation.
Clean Water Action.
Committee on the Middle Fork Vermilion River.
Earthjustice.
Environmental Law & Policy Center.
Environmental Protection Network.
For Love of Water (FLOW).
Freshwater Future.
Friends of the Rouge.
GreenLatinos.
Huron River Watershed Council.
Idaho Rivers United.
Illinois Division, Izaak Walton League of America.
Indiana Sportsmens Roundtable.
Iowa Environmental Council.
Izaak Walton League of America.
Just Transition Northwest Indiana.
Kentucky Waterways Alliance.
Lake Erie Advocates.
Lake Superior Watershed Conservancy.
Latino Farmers & Ranchers International, Inc.
League of Conservation Voters.
Massachusetts Rivers Alliane.
Milwaukee Riverkeeper.
National Wildlife Federation.
Natural Heritage Institute.
Natural Resources Defense Council.
Ohio Environmental Council.
Ohio Division of the Izaak Walton League of America.
Park Watershed.
PennFuture.
Potomac Riverkeeper Network.
River Alliance of Wisconsin.
River Network.
Sierra Club.
Socially Responsible Agriculture Project.
SOH2O Save Our Water.
Southern Environmental Law Center.
Tip of the Mitt Watershed Council.
Universal Access to Clean Water for Tribal Communities.
Verde.
Waterkeeper Alliance.
Waterkeepers Chesapeake.
Winyah Rivers Alliance.
Young, Gifted & Green.

                                 
Letter of September 11, 2024, to Hon. David Rouzer, Chairman, and Hon. 
 Grace F. Napolitano, Ranking Member, Subcommittee on Water Resources 
  and Environment, from Jim Murphy, Senior Director, Legal Advocacy, 
National Wildlife Federation, Submitted for the Record by Hon. Grace F. 
                               Napolitano
                                                September 11, 2024.
The Honorable David Rouzer,
Chair,
House Transportation and Infrastructure Committee, Subcommittee on 
        Water Resources and Environment, 2165 Rayburn House Office 
        Building, Washington, DC 20515.
The Honorable Grace F. Napolitano,
Ranking Member,
House Transportation and Infrastructure Committee, Subcommittee on 
        Water Resources and Environment, 2164 Rayburn House Office 
        Building, Washington, DC 20515.
    Dear Chair Rouzer and Ranking Member Napolitano,
    On behalf of the National Wildlife Federation, we are writing to 
share our perspective ahead of the Subcommittee on Water Resources and 
Environment hearing entitled ``Waters of the United States 
Implementation Post-Sackett Decision: Experiences and Perspectives.'' 
This issue is of utmost importance to the National Wildlife Federation 
and our nearly seven million members and supporters. We remain 
seriously concerned with the devastating impacts of the Supreme Court's 
decision in Sackett v. EPA on our nation's waters and wildlife habitat.
    The Sackett decision has instigated the largest setback for clean 
water in over half a century. It is a major threat to public health and 
wildlife as well as access to cultural resources, traditions, and 
outdoor recreation. Small streams and wetlands that are no longer 
federally protected in light of Sackett provide clean water for 
farmers, supply drinking water to tens if not hundreds of millions of 
people, keep the economy afloat, protect communities from floods, 
provide fish and wildlife habitat, and serve as natural features to 
promote drought resilience. Without a strong federal baseline that 
adequately protects these waters nationwide, the burden falls to states 
and localities to protect wetlands and streams. History has shown us 
that this state-by-state approach is not enough to ensure the 
protection of our waters for future generations.
    The National Wildlife Federation is the nation's largest 
conservation education and advocacy organization with a long history of 
protecting the nation's rich array of water resources. We have 
championed clean and healthy rivers and streams since our founding in 
1936. Conserving our nation's wetlands, streams, and rivers for fish, 
wildlife, and communities is at the core of our mission. We worked to 
pass the Clean Water Act in 1972 and have worked hard to fulfill its 
promise of clean water for all Americans ever since.
Fifty Years Ago: A Bipartisan Clean Water Act to Address Our Waters in 
                                 Crisis
    The patchwork of different state laws in place before the Clean 
Water Act was signed into law failed to ensure safe water quality for 
people and wildlife. The Delaware River was so polluted it darkened the 
paint on passing ships. The Cuyahoga River caught fire more than a 
dozen times and was so fouled from industrial and sewage waste that it 
``oozes rather than flows.'' Lake Erie was considered ``functionally 
dead'' with pollution from factories, sewage and farms triggering algal 
outbreaks that smeared beaches and killed fish. In Washington, DC, the 
Potomac River was little more than an open sewer, leading TIME magazine 
to write the ``Potomac River reaches the nation's capital as a pleasant 
stream, and leaves it stinking from the 240 million gallons of wastes 
that are flushed into it daily.'' \1\
---------------------------------------------------------------------------
    \1\ National Wildlife Federation. Five Decades of Clean Water. 
https://www.nwf.org/-/media/Documents/PDFs/NWF-Reports/2022/Five-
Decades-of-Clean-Water1
---------------------------------------------------------------------------
    In response, Congress passed the bipartisan Clean Water Act. 
Through a cooperative federal-state partnership, the Clean Water Act 
aims to prevent, reduce, and eliminate pollution and destruction of our 
waters in order to ``restore and maintain the chemical, physical and 
biological integrity of the Nation's waters,'' with a goal to make all 
waters in the United States ``swimmable and fishable'' by 1983. While 
this goal has yet to be achieved, the law has improved the health of 
many waters nationwide and prevented deterioration or destruction in 
many more.\2\ As a result, the number of waters that meet clean water 
goals has doubled since the passage of the Clean Water Act.
---------------------------------------------------------------------------
    \2\ National Wildlife Federation. Five Decades of Clean Water. 
https://www.nwf.org/Educational-Resources/Reports/2022/Five-Decades-of-
Clean-Water
---------------------------------------------------------------------------
        Strong Measures to Protect Clean Water are Still Needed
    Despite the progress made, there remains a long way to go to 
achieve clean water for all. The United States has lost over half of 
our wetlands since European colonization, and the latest Wetlands 
Status and Trends report from the U.S. Fish and Wildlife Service shows 
that this trend is continuing.\3\ Between 2009-2019, the rate of 
wetland loss has increased by 50%.\4\ During the last decade, an area 
of vegetated wetlands greater than the size of Rhode Island disappeared 
from the landscape.
---------------------------------------------------------------------------
    \3\ National Wetland Inventory. https://www.fws.gov/program/
national-wetlands-inventory/web-mapping-services
    \4\ United States Fish and Wildlife Service 2019 Wetlands Status 
and Trends Report. https://www.fws.gov/project/2019-wetlands-status-
and-trends-report
---------------------------------------------------------------------------
    The latest Wetlands Status and Trends report makes clear that we 
need to improve our approach to wetlands conservation in the United 
States. However, the Supreme Court's decision in Sackett v. EPA 
threatens the 50 years of progress made to clean up our rivers and 
restore our wetlands. According to the Environmental Protection Agency, 
the Sackett decision has had the effect of removing federal Clean Water 
Act protections from up to 63% of wetlands and up to 4.9 million of 
miles of streams.\5\ Now, the burden falls to states and localities to 
protect these waters.
---------------------------------------------------------------------------
    \5\ Environmental Protection Agency. https://www.youtube.com/
watch?v=lcCVelsAy2c&ab_
channel=U.S.EPA
---------------------------------------------------------------------------
    The Clean Water Act's regulatory framework is founded on strong 
federal-state partnerships (cooperative federalism). As such, a strong 
Clean Water Act is the foundation for strong state efforts. Although 
some states and Tribal governments have programs that separately 
protect some wetlands and streams, many others do not or lack the 
resources to adequately do so. As was true before the Clean Water Act's 
passage, the resulting patchwork of state protections are not an 
adequate substitute for a uniform federal baseline.
    Additionally, several states and Tribes have laws in place 
prohibiting the regulation of waters beyond those covered by the Clean 
Water Act. Many states that do wish to be protective of wetlands and 
streams do not currently have the resources or expertise to do so, and 
there is little to no federal funding available to resource state 
wetland programs. States that do have the resources and expertise to 
safeguard wetlands can only do so much to protect watersheds shared 
with other states that may have no or lesser protections in place.
      Healthy Waters Protect Communities, Wildlife, and Economies
    The Sackett decision comes at a time when communities need the 
natural benefits of wetlands and streams more than ever. The wetlands 
under threat store and slowly release water downstream, naturally 
protecting communities from flood and storm surge, recharging 
groundwater, improving water quality, storing carbon, shoring up water 
supplies in times of drought, serving as fish and wildlife habitat, and 
providing access to cultural resources.
    Protecting and restoring wetlands helps mitigate the damage from 
increasingly severe storms and floods, which continue to 
disproportionately impact socially vulnerable communities. Wetlands 
play an enormous and low-cost role in absorbing floodwaters. For 
instance, one single acre of wetland can store 1 to 1.5 million gallons 
of floodwaters and a 2020 analysis of all 88 tropical storms and 
hurricanes impacting the U.S. between 1995 and 2016 found that counties 
with greater wetland coverage experienced significantly less property 
damage than counties with little or no wetlands.\6\ \7\
---------------------------------------------------------------------------
    \6\ Environmental Protection Agency, Functions and Values of 
Wetlands, EPA 843-F-01-002c (2001) (factsheet)
    \7\ Sun, F., and R.T. Carson. 2020. Coastal wetlands reduce 
property damage during tropical cyclones. Proceedings of the National 
Academy of Sciences 117: 5719-5725
---------------------------------------------------------------------------
    Removing federal protections from vast swaths of waters across the 
country will also have a disproportionate impact on Tribal communities, 
Indigenous peoples, communities of color, and low-income communities. 
Communities that depend on fishing for sustenance and for cultural 
practices are particularly at risk from impaired water quality.
    Tribes rely on the Clean Water Act to trigger consultation 
requirements. The broad exclusion of important waters from federal 
jurisdiction also undercuts states and Tribes' ability to protect 
against cross-border pollution, including the destruction of upstream 
wetlands and ephemeral streams that protect tribal waters. Without 
federal resources to regulate waters within their borders, states and 
Tribes may be impacted by pollution from upstream sources.
    Additionally, for many states and Tribes, the health of the economy 
and dependent communities is directly linked to the health of the 
state's natural resources. Nationwide, the craft brewing industry, 
notably dependent on clean water supplies, contributed $72.2 billion to 
the U.S. economy in 2022 and more than 460,000 jobs.\8\ Smaller, non-
perennial streams threatened by the Sackett decision sustain prized 
sport fisheries like trout and salmon. As such, much of the nation's 
$867 billion outdoor recreation economy rely on these small streams and 
wetlands as well.\9\ In some rural, mountain communities, river 
recreation and related activities generate the largest share of the 
local economy.
---------------------------------------------------------------------------
    \8\ Brewers Association. https://www.brewersassociation.org/
statistics-and-data/economic-impact-data/
    \9\ Outdoor Industry Association. https://outdoorindustry.org/
advocacy
---------------------------------------------------------------------------
    From the Everglades to Puget Sound--and all the bogs, brooks, and 
marshes in between--America's wetlands, rivers, estuaries, and streams 
are critical for fish and wildlife as well. Although wetlands cover 
only 6% of the Earth's land surface, 40% of all plant and animal 
species live or breed in wetlands.\10\ More than a third of all 
federally endangered or threatened species live only in wetlands and 
half use wetlands at some point in their lives.\11\ Roughly half of 
North American waterfowl hatch in the Prairie Pothole Region and more 
than a third of North American bird species rely on wetlands for food, 
shelter, breeding, nesting, and rearing their young. Similarly, small 
and headwater streams are the capillaries that feed our larger 
watersheds, supporting native fisheries, supplying drinking water, and 
absorbing floodwaters. Coastal estuaries and mangrove forests serve as 
the first line of defense against storm surges and provide important 
habitat and shelter for fish and wildlife, from oysters to dolphins.
---------------------------------------------------------------------------
    \10\ ``Why Healthy Wetlands Are Vital to Protecting Endangered 
Species: U.S. Fish & Wildlife Service.'' FWS.Gov, 26 Apr. 2023, 
www.fws.gov/story/2023-04/why-healthy-wetlands-are-vital-protecting-
endangered-species.
    \11\ ``Why Are Wetlands Important?'' EPA, Environmental Protection 
Agency, www.epa.gov/wetlands/why-are-wetlands-important. Accessed 10 
Sept. 2024.
---------------------------------------------------------------------------
                        People Want Clean Water
    Poll after poll shows that the public overwhelmingly wants the 
clean, fishable, and swimmable waters promised by the Clean Water Act. 
A recent survey found that the vast majority of Americans strongly 
support Clean Water Act protections, with 75% of Americans in favor of 
protecting more waters and wetlands nationwide.\12\
---------------------------------------------------------------------------
    \12\ Morning Consult survey on behalf of the Walton Family 
Foundation. https://www.waltonfamilyfoundation.org/learning/access-and-
availability-to-clean-water-is-a-concern-nationwide
---------------------------------------------------------------------------
    At a time when aging water infrastructure and changing 
precipitation patterns as a result of climate change threatens to 
worsen water quality challenges, Congress should heed the public and 
address the harm done by the Sackett decision and ensure federal 
safeguards for all important waters. In the meantime, Congress must 
support state and Tribal efforts to enact or strengthen protections for 
the waters we all rely on.
            Sincerely,
                                                Jim Murphy,
     Senior Director, Legal Advocacy, National Wildlife Federation.

                                 
  Letter of October 17, 2023, to Hon. Thomas R. Carper, Chairman, and 
    Hon. Shelley Moore Capito, Ranking Member, Senate Committee on 
      Environment and Public Works, from farmers and agricultural 
  professionals, Submitted for the Record by Hon. Grace F. Napolitano
                                                  October 17, 2023.
Chairman Tom Carper,
Ranking Member Shelley Moore Capito,
Senate Committee on Environment and Public Works,
410 Dirksen Senate Office Building, Washington, DC 20510.

Via email

RE:  Farmers support legislation to restore strong federal clean water 
protections under the Clean Water Act

    Dear Chairman Carper & Ranking Member Capito:
    We are farmers and other agricultural professionals who support 
strong protections under the Clean Water Act. We need strong federal 
protections to safeguard the streams, wetlands, and other waterways 
that help sustain our livelihoods and communities. In the wake of the 
U.S. Supreme Court's decision in Sackett v. EPA, which drastically 
reduced the number of waters protected by the Clean Water Act, we 
support congressional action now to restore the full scope of the Act 
as the bipartisan Congress that enacted the statute intended.
    To feed America, we farmers need clean water. Our crops and 
livestock are only as healthy as the water we use on our farms. 
Headwater, seasonal, and rain-dependent streams supply water to larger 
streams and rivers from which we draw water for irrigation and for our 
livestock to drink. If our water is contaminated, our businesses suffer 
because we cannot sell contaminated crops or rely on tainted livestock. 
And just like families and communities across America, we need clean, 
safe water for drinking, cooking, bathing, and numerous other things at 
our homes.
    Farmers also need healthy, intact wetlands. With more frequent 
storms and a warming climate, wetlands help reduce pollution and 
protect our homes and farming operations from flooding. If upstream 
industries are allowed to degrade these critical water bodies, they put 
farmers and our families and livelihoods at risk.
    Federal clean water protections benefit farmers and ranchers; they 
do not impose unreasonable or unworkable burdens on our industry. We 
know that most day-to-day agricultural practices do not require Clean 
Water Act permits because they are exempt.
    That means we can farm our land, build or maintain stock ponds or 
irrigation ditches, maintain drainage ditches, and build farm roads 
without having to apply for a permit or worry about Clean Water Act 
enforcement. In fact, EPA and the Army Corps of Engineers have 
estimated that agricultural discharges account for less than one 
percent of the wetland area and about two percent of the stream length 
for which they have issued Clean Water Act permits. And in the rare 
instances when we do need permits, fast-track permits with modest 
requirements (nationwide permits or general permits) are available.
    We disagree with the rhetoric advanced by the Farm Bureau, some 
states, and industry, that strong clean water protections harm farmers. 
The streams, wetlands, and other waters flowing through our farms are 
no less worthy of protection because of the farming and ranching that 
occurs there. Rather, we need the waters on our land to be protected to 
support our farming and ranching. We therefore support congressional 
action to restore strong federal clean water protections under the 
Clean Water Act.
            Sincerely,
Robert Whitescarver (lead),
  Whiskey Creek Angus,
Churchville, Virginia.
John Ager,
  Hickory Nut Gap Farm,
Fairview, North Carolina.
Greg Bowen,
  American Chestnut Land Trust, Double Oak Farm,
Prince Frederick, Maryland.
Patrick Crowe,
  Owner, Crowesgrow,
Matthews, North Carolina.
Peter Elmore,
  Star Bright Farm, LLC,
White Hall, Maryland.
Vera Fabian,
  Farmer/Owner, Ten Mother's Farm, LLC, Cedar Grove, North Carolina.
Queen Quet Marquetta L. Goodwine,
  Chieftess of the Gullah/Geechee Nation, Gullah/Geechee Sea Island 
Coalition,
  St. Helena Island, South Carolina.
  
  
Ben Grimes,
  Dawnbreaker Farms,
Hurdle Mills, North Carolina.
Liz Lamb,
  Community Farming Program Manager, The 6th Branch,
Baltimore, Maryland.
Bernard Nagelvoort,
  Associate Director, Lord Fairfax Soil and Water Conservation 
District, Berryville, Virginia.
Hiram Ramirez,
  Urban Gourmet Farms,
Charlotte, North Carolina.
Maria Russo,
  Co-Founder, Sistermoon Farm, Shenandoah Junction, West Virginia.
Lindsey Shapiro,
  Pasa Sustainable Agriculture, Harrisburg, Pennsylvania.
Sean Simpson,
  Farmer/Owner, Terra Flora Market Garden, Norwood, North Carolina.
Jamie Swofford, Farmer,
  Old North Farm,
Shelby, North Carolina.
Jennifer Stafford,
  Farmer/Owner, J & J Family Farm, LLC, Clover, South Carolina.
Leo Tammi,
  Shamoka Run Farm,
Mount Sidney, Virginia.
Kevin Tate,
  Richard Foltz Farm, Stanley, Virginia.
Brent Wills,
  Farmer, Wills Soil & Stream, Farm Advisor, Bramble Hollow Farm, 
Montvale, Virginia.

                                 
 Letter of September 10, 2024, to Hon. Sam Graves, Chairman, and Hon. 
     Rick Larsen, Ranking Member, Committee on Transportation and 
  Infrastructure, and Hon. David Rouzer, Chairman, and Hon. Grace F. 
    Napolitano, Ranking Member, Subcommittee on Water Resources and 
Environment, from Protect Colorado Waters Coalition, Submitted for the 
                   Record by Hon. Grace F. Napolitano
                                                September 10, 2024.
The Honorable Sam Graves,
Chairman,
Committee on Transportation and Infrastructure, United States House of 
        Representatives, 1135 Longworth House Office Building, 2163 
        Washington, DC 20515.
The Honorable Rick Larsen,
Ranking Member,
Committee on Transportation and Infrastructure, United States House of 
        Representatives, Rayburn House Office Building, Washington, DC 
        20515.
The Honorable David Rouzer,
Chairman,
Subcommittee on Water Resources and Env., United States House of 
        Representatives, 2333 Rayburn House Office Building, 
        Washington, DC 20515.
The Honorable Grace Napolitano,
Ranking Member,
Subcommittee on Water Resources and Env., United States House of 
        Representatives, 1610 Longworth House Office Building, 
        Washington, DC 20515.

RE:  Hearing on ``Waters of the United States Implementation Post-
Sackett Decision: Experiences and Perspectives''

    Dear Chairman Graves, Ranking Member Larsen, Subcommittee Chairman 
Rouzer, and Subcommittee Ranking Member Napolitano,
    The Protect Colorado Waters Coalition consists of 20 environmental 
and conservation organizations, representing more than 275,000 
Coloradans, who came together to support the passage of legislation in 
Colorado in response to the U.S. Supreme Court's Sackett v. EPA 
decision. The coalition's goal is to restore the level of protections 
that existed prior to Sackett, ensuring creation of a Colorado 
permitting program that allows for responsible dredge and fill 
activities to occur without irreparable harm to the state's wetlands 
and streams.
    In Colorado (and 47 other states), the U.S. Army Corps of Engineers 
issues permits under Section 404 of the Clean Water Act to protect 
waters of the United States (or ``WOTUS'') from the impacts of 
discharges of dredged or fill material. The Supreme Court's Sackett 
decision is the single largest reduction of what the Clean Water Act 
covers as WOTUS since its inception, removing protections for countless 
wetlands, streams, and rivers.
    Healthy ecosystems are essential for providing clean drinking water 
and the overall health of our communities. In addition, the economic 
benefits provided by waters and wetlands (while difficult to quantify) 
are undoubtedly in the millions, if not billions, of dollars annually. 
In the absence of federal action from Congress to address the large gap 
created by Sackett, states are now faced with the challenge of working 
on a time consuming and controversial multi-year effort to create their 
own permitting programs to protect waters no longer considered WOTUS to 
ensure water supplies and wildlife habitat are not irreparably harmed.
    Before the passage of the Clean Water Act, cities and industries 
commonly dumped raw sewage into our nation's rivers. In addition to 
impacts to streams and rivers, nearly half a million acres of wetlands 
were lost annually. Since statehood in 1876, Colorado has lost 
approximately 50% of its original wetlands due to activities such as 
drainage, fill, or excavation \1\. Wetlands play a vital role in the 
life of wildlife, support our water supplies, and create resilience to 
extreme weather events such as floods, wildfires, and heat waves that 
have greatly increased over the past few decades. According to the 
Colorado Natural Heritage Program, as much as 75% of Colorado's fish 
and wildlife depend on riparian habitats \2\, and according to the 
Colorado Wildlife Council hunting and fishing contributes over $3.25B a 
year to the state's economy, providing more than 25,000 full-time jobs 
across the state.\3\ Wetlands also play an important role in 
agriculture, reducing the risks and impacts of floods, droughts, and 
wildfires, which can destroy valuable soil and property. With an annual 
statewide economic contribution of $47B and nearly half of Colorado's 
acreage being dedicated to farming, ranching, and other agricultural 
activities, protection of wetlands is critical toward having a vibrant 
agricultural economy and healthy wildlife population.\4\
---------------------------------------------------------------------------
    \1\ https://cnhp.colostate.edu/cwic/work/restoration/
#::text=Since%20Colorado%20became
%20a%20state,once%20provided%20across%20our%20state.
    \2\ https://cnhp.colostate.edu/cwic/work/restoration/
#::text=Since%20Colorado%20became
%20a%20state,quality%2C%20and%20water%20storage%20functions.
    \3\ https://cowildlifecouncil.org/benefits/
#::text=Hunters%20and%20anglers%20are%20an,
manufacturers%20to%20the%20tourism%20industry.
    \4\ https://ag.colorado.gov/sites/ag/files/documents/
Colorado%20Agriculture%20Brochure.pdf
---------------------------------------------------------------------------
    The state estimated that the Sackett decision resulted in a loss of 
protection for the majority of Colorado's streams, about 80% of which 
are ephemeral or intermittent.\5\ This loss of protection is not unique 
to Colorado; others in the arid American Southwest are impacted even 
more severely and face the same loss of protection to their water 
supply from increased pollution. This is coupled with experiencing the 
worst long-term drought conditions in 1,200 years across the region 
\6\, especially impacting agriculture which uses about 80% of the 
Colorado River's water to irrigate 15% of the nation's farmland.\7\ 
Additionally, Colorado is the headwater state with 8 major river basins 
providing water supplies to 18 states and Mexico.
---------------------------------------------------------------------------
    \5\ https://19january2021snapshot.epa.gov/sites/static/files/2014-
09/documents/colorado.pdf
    \6\ https://www.nature.com/articles/s41558-022-01290-z
    \7\ https://feedingourselvesthirsty.ceres.org/regional-analysis/
colorado-river#::text=Agriculture
%20uses%20approximately%2080%25%20of,90%25%20of%20the%20winter%20vegetab
les.&text=
A%20recent%20study%20found%20that,irrigation%20for%20cattle%2Dfeed%20cro
ps.&text=
Agriculture%20is%20the%20largest%20water,in%20the%20Colorado%20River%20B
asin.
---------------------------------------------------------------------------
    In its amicus brief in the Sackett case, the State of Colorado 
points out the perils of excluding ephemeral streams and intermittent 
waters from the Clean Water Act. The brief is available here [https://
protect-us.mimecast.com/s/cQXXC2kgo5I8Qx
E9C1bbFD?domain=urldefense.com]. At page 16, the State provided this 
clear warning:

        Ephemeral and intermittent waters play a large collective role 
        in maintaining and defining the physical, chemical, and 
        biological integrity of perennial waters. Impairment or loss of 
        these systems through unregulated fill or pollution would have 
        considerable and long-lived negative consequences for 
        fisheries, ecosystem services, and economies dependent on them.

    While Colorado acted swiftly in the wake of Sackett, becoming the 
first state after the decision to pass legislation enabling a state 
dredge and fill permitting program in May 2024, it has been a long, 
controversial process that began nearly three years ago in response to 
the 2020 Navigable Waters Protection Rule. Passing this legislation 
took tremendous leadership from Governor Polis' Administration and the 
sponsors of HB24-1379, specifically Speaker of the House Julie 
McCluskie, Senator Dylan Roberts, and Representative Karen McCormick. 
There were over 200 lobbyists registered on the bill (the large 
majority of whom represented the regulated sectors of industry, water 
users/suppliers, and agriculture) and the sponsors met with hundreds of 
stakeholders over the course of dozens of meetings resulting in 40 
amendments to the bill.
    Throughout this process, Colorado has faced many challenges in 
filling the gap left by the Sackett decision. The state lacks the staff 
and funding available at the federal level for agencies to provide 
robust review of the project's impact to fish, wildlife, and historic 
cultural resources. The state does not yet have a functioning 
mitigation program for unavoidable impacts associated with dredge and 
fill activities. While the state is working to address these issues, it 
will never have access to the level of funding that has historically 
been available at the federal level to address these, and other needs.
    Water is the lifeblood of America. However threats to wetlands and 
our nation's water supply have increased significantly due to the 
Sackett decision. Colorado is meeting this moment by creating its own 
dredge and fill permitting program, but it's been a long controversial 
process, and in the end the state does not have the financial support 
to fill all gaps created by Sackett. While there are significant 
challenges, we encourage other states to follow Colorado's lead because 
of the critically important role of wetlands, ephemeral, and 
intermittent streams in providing clean, safe, reliable water supplies.
            Sincerely,
                                                 Josh Kuhn,
               (Co-Chair of the Protect Colorado Waters Coalition),
              Senior Water Campaign Manager, Conservation Colorado.
                                           Kristine Oblock,
               (Co-Chair of the Protect Colorado Waters Coalition),
                               Protect Our Waters Campaign Manager,
                                     Clean Water for All Coalition.



                                Appendix

                              ----------                              


 Questions from Hon. David Rouzer to Emma Pokon, Commissioner, Alaska 
                Department of Environmental Conservation

    Question 1. Every state has special considerations that they 
consider when crafting water quality regulations. How might a high 
level of National regulation of waters complicate your ability to meet 
the specific needs of your state?
    Answer. Congress recognized and anticipated that a one-size-fits-
all approach would not work well across the nation's diverse regions. 
One mechanism for ensuring flexibility in the statutory framework is 
the provision for states to implement the regulatory programs--
including section 402 wastewater discharge and section 404 dredge and 
fill. Unfortunately, the value of states implementing these programs 
has eroded greatly because of the granular level of federal agency 
oversight, review, and second-guessing.
    In a questionable allocation of our collective public resources, 
EPA reviews the same State decisions multiple times. For example, after 
DEC experts have developed and drafted a permit (based on EPA 
guidance), EPA will review and comment on (and maybe object to) a 
permit when it is released for public comment.\1\ EPA again then 
reviews all permits issued by the State during a comprehensive periodic 
review.
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    \1\ In one recent experience, EPA formally objected to a permit 
proposed by DEC on the basis that it did not comply with EPA's 
nationally promulgated, granular effluent limit guidelines (ELGs). DEC 
staff argued that the ELG was irrational as it required expensive 
disposal of rainwater that met state water quality standards. After 
formal objection and months of staff expert and attorney time, EPA 
finally conceded that DEC's permit could be issued as drafted because 
DEC pointed out that EPA had been referencing the wrong EPA-issued ELG 
all along.
    In another recent experience, EPA formally objected to a minor 
modification of a permit because it did not comply with detailed 
national ELGs. Rather than providing clarity to regulated parties up 
front about what rules apply to their operation, EPA encouraged DEC to 
instead exercise enforcement discretion to rationalize EPA's standard 
in practice.
---------------------------------------------------------------------------
    In a similar demonstration of distrust and duplication of effort, 
EPA headquarters and regional staff meet quarterly with DEC's 
compliance and enforcement program for updates on our responses to 
specific, discrete noncompliance events. While enforcement discretion 
is theoretically a place where implementing states should have 
flexibility on how to best bring a facility into compliance and how to 
allocate resources, EPA leaves DEC staff with the impression that they 
must strictly adhere to a detailed matrix of EPA-approved responses. 
Periodic state review framework engagements from EPA reinforces this by 
scoring DEC staff against how closely they have adhered to that 
predetermined matrix. Through their scoring criteria and review, EPA 
demonstrates more interest in whether DEC adhered to what EPA pre-
approved than whether matters were effectively resolved. Staff time 
dedicated to unproductive follow-ups with facilities that have already 
come into compliance as well as the time in EPA meetings erode State 
resources that could otherwise be spent on higher priority, substantive 
regulatory activities.
    Some State decisions cannot be implemented until EPA reviews and 
approves our experts' analyses, causing significant delays. Regulations 
adopted by Alaska DEC and sent to EPA for approval can wait for a 
decade or more \2\--a timeline that is not workable for facilities 
subject to our permitting requirements. For example, mixing zone 
regulations submitted to EPA in 2006 were not approved until 2019.
---------------------------------------------------------------------------
    \2\ In fairness, some regulations are reviewed and approved 
promptly. For example, changes to Alaska's antidegradation regulations 
delivered in March 2018 were approved by the end of July the same year, 
in about four and half months; site specific criteria regulations 
delivered in January 2017 were approved by the end of the next month.
---------------------------------------------------------------------------
    Some State decisions are effectively overturned or reversed by EPA 
overseers--either expressly or simply by failing to respond. For 
example, Alaska DEC submitted mercury water quality standards to EPA in 
2003, in 2004 EPA deferred approval--apparently indefinitely. Another 
lengthy saga unfolded with respect to residue water quality standards: 
DEC submitted regulations to EPA in June 2008, EPA disapproved the 
regulations in January 2010; DEC then submitted a revised proposal in 
May 2011, but EPA never responded to the revised package; DEC submitted 
revised regulations rescinding the standard in 2021 and EPA approved 
the rescission in 2023, closing out the 15-year ordeal--for now. 
However, DEC must now implement the effective residue standard which 
has generated at least one administrative appeal and confusion for 
regulated entities, in part because the clarifying amendments were 
ignored by EPA.
    In other circumstances, EPA requires exhaustive monitoring and 
documentation to even consider changing a previously designated use or 
standard for a water body. In one example a legacy contaminated site 
(that existed well-before state primacy or even statehood) resulted in 
compromised water quality and effectively precluded some waterbody uses 
that had been designated by default. To change the designated use, 
which quite obviously had not been met for over a century, two years of 
data needed to be collected before developing or submitting a 
regulation package. Similarly, community wastewater facilities that 
require site-specific criteria for waterbodies because of natural 
conditions have undergone a years-long effort and expense to collect 
data to satisfy EPA.
    These elements of EPA oversight of a Clean Water Act primacy 
program (which far exceed oversight of other federal programs that DEC 
implements) frequently serve to limit, delay, and stymie State 
regulatory actions.

    Question 2. What are some of the challenges the state of Alaska has 
encountered when trying to understand how the Agencies intend to 
implement WOTUS post-Sackett?
    Answer. EPA and the Corps have not yet published clear guidance to 
help potential permittees or state agencies, including those like 
Alaska DEC that are implementing Clean Water Act programs, understand 
their approach. Well over a year later, it is unclear whether there has 
even been guidance issued to line staff at the agencies. Instead, 
district offices are apparently sending requests for formal approved 
jurisdictional determinations to headquarters to decide on a case-by-
case basis. It seems the agencies themselves still do not fully 
understand how they intend to implement WOTUS post-Sackett.
    EPA did initially publish a ``conforming rule'' in August 2023 that 
excised the term ``significant nexus.'' That limited adjustment to the 
final WOTUS rule reflects an extraordinarily narrow take away from the 
Court's holding. The conforming rule did not address the Court's 
indistinguishable criteria or constitutional vagueness concerns.
    Instead, the agencies have since claimed jurisdiction in a manner 
directly contrary to the Court's requirement that a wetland be 
``indistinguishable'' from an ``adjacent'' jurisdictional water. The 
Corps' Alaska District Office asserted that most of the North Slope of 
Alaska is subject to federal Clean Water Act jurisdiction. This is an 
area the size of Utah where an upper layer of permafrost groundwater 
melts seasonally, creating wetlands trapped above lower layers of 
permafrost that remain frozen year-round. Perhaps permafrost wetlands 
directly adjacent to a jurisdictional waterbody might be within the 
scope of WOTUS. That claim becomes laughable when based on a theory of 
jurisdictional contagion \3\ spreading across acres and miles of 
tundra. A wetland that does not form because of any relationship with a 
jurisdictional water and that is a substantial distance away is neither 
``adjacent'' nor ``indistinguishable.'' By failing to acknowledge those 
criteria however, the federal government maintains that it controls any 
activity on those lands.
---------------------------------------------------------------------------
    \3\ The Corps jurisdictional determinations also demonstrate that 
its theory of jurisdictional contagion crosses not just unlimited 
distance, but also distinct, separately classified, wetland types.
---------------------------------------------------------------------------
    Beyond ignoring those specific jurisdictional criteria, there have 
been clear indications that the agencies are pushing hard to return to 
the ``everything is WOTUS'' posture. For example, the Corps appears to 
be interpreting ``continuous surface connection,'' a clear reference to 
``surface water,'' to include a wetland ecosystem, irrespective of 
whether there is visible surface water present. In fact, in meeting 
with the Alaska District Office, Corps staff referenced ``digging 
holes'' on properties to determine the depth of ground water in 
evaluating the presence or extent of a wetland. This approach is 
confounding given the Supreme Court's clear statement that a vague 
standard is problematic. How does an approach that requires digging 
holes and applying ecological subject matter expertise resolve concerns 
about a standard being vague?
    The Corps has publicly committed to issuing jurisdictional 
determinations free of charge as a public service. But, in practice, 
that ``service'' appears to be limited. For example, the Alaska 
District Office noted that they are choosing to prioritize JD requests 
that are accompanied by a permit application (i.e., where the party has 
already conceded federal jurisdiction). But the Corps may not be able 
to get to a stand-alone JD, such as one requested in the context of a 
property transfer.
    Tracking the Corps standards for jurisdictional determinations has 
been challenging because the agencies have not published clear 
guidance, the JDs they have published contradict the Court's 
guidelines, and the bandwidth and timelines for providing case-by-case 
JDs is apparently limited.

    Question 3. Due to the uncertainty of the current regulatory 
structure at the Corps, some jurisdictional determinations are being 
made by staff from Corps districts that do not usually cover the 
geographic areas and hydrologic conditions of the applicants post-
Sackett.
    Do you think it would be fair for someone from a Corps district on 
the east coast, for instance, to be making WOTUS decisions in Alaska?
    Answer. Officials from a different region may face challenges in 
making sound jurisdictional determinations. Corps staff in distant 
offices may lack familiarity with the applicable regional delineation 
manuals, forecasting tools, and other materials.\4\ Staff outside of 
Alaska may also be hampered by the lack of detail in the mapping and 
imaging data. Moreover, there is significant risk that distant staff 
will lack awareness of local information and context. Nor are those 
staff able to conduct site visits as easily or quickly. Generally, a 
lack of familiarity or experience with regionally unique ecosystems and 
water regimes increases the risk of bad and unpredictable decisions.
---------------------------------------------------------------------------
    \4\ Notably, the Corps has published regionally specific wetland 
delineation manuals, streamflow forecast tools, and other tools. These 
tools reflect the Corps' position that jurisdictional determinations 
are technically complex and that regionally specific circumstances 
affect jurisdictional determinations.
---------------------------------------------------------------------------
    Distance also generates pragmatic hurdles to the communication with 
and access for the public served by the agency staff. Public officials 
should be accountable to the public they serve. And the public should 
have opportunities to evaluate and understand government decision-
making. While distance does not render access and communication 
impossible, it does generate hurdles and is a clear disadvantage to 
remote offices processing applications.

    Question 4. What is the difference between preliminary 
jurisdictional determinations (PJDs) that the Corps has been pushing 
project proponents towards, and approved jurisdictional determinations 
(AJDs)? How do PJDs cause issues for permit applicants as opposed to 
AJDs?
    Answer. The Army Corps defines AJDs and PJDs in its regulations and 
further in a 2016 Regulatory Guidance Letter (RGL).\5\ Several 
important distinctions between these processes are evident on the face 
of those published regulatory documents. The Corps markets PJDs as more 
expeditious,\6\ but also concedes that PJDs both (1) are not appealable 
\7\ and (2) effectively attach federal jurisdiction to aquatic 
resources that ``may not be jurisdictional.'' \8\ By contrast, an AJD 
process is lengthier and requires allowing agency staff access to your 
property. But the AJD will provide a more precise wetlands delineation, 
potentially limiting excess compensatory mitigation burdens, and is 
appealable.
---------------------------------------------------------------------------
    \5\ 33 CFR 331.2; U.S. Army Corps of Engineers, Regulatory Guidance 
Letter 16-01 Re. Jurisdictional Determinations (October 2016) available 
at https://www.spn.usace.army.mil/Portals/68/docs/regulatory/resources/
RGL/RGL16-01.pdf.
    \6\ RGL at 3.
    \7\ 33 CFR 331.2 (``Preliminary JDs are advisory in nature and may 
not be appealed.'')
    \8\ A PJD can be used even where ``initial indications are that the 
aquatic resources on a parcel may not be jurisdictional.'' Once you 
have the PJD, however, the Corps ``will treat all aquatic resources 
that would be affected in any way by the permitted activity on the 
parcel as jurisdictional.'' RGL at 3.
---------------------------------------------------------------------------
    Taken together, the Corps has established a framework that 
incentivizes projects to pursue a PJD. For an individual permittee, the 
``expeditious'' feature of the PJD is attractive, as delays can cause 
significant expense. The Corps' AJD process is less appealing as it is 
more time-intensive and costly. Moreover, for the additional time and 
cost, an applicant is unlikely to achieve a different result through 
the AJD process given the federal agencies' demonstrated reluctance to 
find that they do not have jurisdiction. While an AJD decision is 
appealable, the cost of litigation is another high hurdle. Effectively, 
the Corps is leveraging project costs and timelines to steer projects 
toward a process that gives the Corps control (without accountability) 
well beyond what Congress granted.
    If the Corps and EPA took up the challenge to publish a clear and 
intuitive WOTUS definition, projects could move forward comfortably 
knowing whether a permit was required without waiting for the Corps to 
extensively study water regimes. This would save time and resources for 
both the agencies and projects while being responsive to the Court's 
vagueness concerns.

 Questions from Hon. David Rouzer to Courtney Briggs, Chairman, Waters 
  Advocacy Coalition, on behalf of the American Farm Bureau Federation

    Question 1. What is the difference between preliminary 
jurisdictional determinations (PJDs) that the Corps has been pushing 
project proponents towards, and approved jurisdictional determinations 
(AJDs)? How do PJDs cause issues for permit applicants as opposed to 
AJDs?
    Answer. A preliminary jurisdictional determination (PJD) is a non-
binding, advisory opinion from the U.S. Army Corps of Engineers that 
there may be waters of the United States (WOTUS) on a given property 
along with approximate locations of those waters and wetlands. By 
accepting a PJD, landowners conceded, for the purposes of moving 
forward with the permitting process, to treat the identified areas as 
WOTUS without a formal, definitive evaluation from the Army Corps. This 
means they cannot dispute the jurisdictional status of those areas 
during the permitting process. PJDs can cause significant issues for 
permit applicants because they push landowners to accept federal 
jurisdiction over areas that may not actually qualify as WOTUS, simply 
to avoid permitting delays.
    In contrast, an approved jurisdictional determination (AJD) is an 
official, legally binding determination from the Corps that specifies 
the presence or absence of WOTUS on the property. An AJD involves a 
thorough, on-site evaluation by the Corps to precisely delineate which 
features are subject to federal jurisdiction. AJDs provide certainty 
for landowners because they establish definitively which areas are 
regulated, and which are not, and they are valid for five years.
    Many landowners were falling into regulatory limbo waiting for the 
Army Corps to provide AJDs, which forced many WAC members to 
unnecessarily accept a PJD in order to get their projects moving in a 
timely manner. Many industries run on strict timelines and cannot 
afford to have their projects held hostage waiting for an AJD. This 
means that landowners are forced to needlessly pay mitigation costs for 
land that may not actually be a WOTUS.
    Landowners are at a disadvantage if they later discover that the 
PJD included areas that should not have been regulated, in contrast 
AJDs provide a clear record that can be appealed administratively or 
challenged in court.

    Question 2. At a Subcommittee hearing in December 2023, Assistant 
Secretary of the Army Michael Connor described the issuance of 
jurisdictional determinations (JDs) and the lack of National guidance 
that regulated communities could count on, as a ``chicken or the egg-
type situation.'' \1\ How has the Corps' internal lack of direction and 
clarity affected regulated communities on the ground?
---------------------------------------------------------------------------
    \1\ Water Resources Development Acts: Status of Past Provisions and 
Future Needs Hearing Before the Subcomm. on Water Resources and 
Environ. of the H. Comm. on Transp. and Infrastructure, 118th Cong., 
(December 5, 2023) (Statement of Hon. Michael L. Connor, in response to 
questioning by David Rouzer, Chairman, Subcomm. on Water Resources and 
Environ. of the H. Comm. on Transp. and Infrastructure).
---------------------------------------------------------------------------
    Answer. At this 2023 hearing, Assistant Secretary of the Army 
Michael Conner explained that they intended to start issuing 
jurisdictional determinations, and only later provide implementation 
guidance--which led to the ``chicken or egg'' discussion. The Corps has 
had over a year to figure this out and it is astonishing that the 
public still does not have a comprehensive implementation guidance 
document. The penalties for CWA compliance are $64,000/per day or jail 
time--regulated entities need to know how this is being implemented 
because these penalties can force small businesses to close their 
doors. By leaving regulated entities in the dark, the federal agencies 
are hoping that every permit seeker will be forced to ask the Corps for 
permission to perform approved activities or worse use their own land. 
The regulated public is being denied the constitutional rights of due 
process and fair notice. It is also worth noting that Mr. Conner 
testified before the Senate Environment and Public Works Committee 
where he was specifically asked about WOTUS implementation guidance. In 
his response, he denied its existence. Subsequently our coalition 
requested this information through a Freedom of Information Act 
request. Unsurprisingly, while the response that we received redacted 
the SharePoint link to the implementation guidance, it did confirm the 
existence of an implementation guidance document that has been sent 
from Army Corps headquarters to Corps districts. This only exacerbates 
our members' distrust of the federal government and highlights the 
failure in transparency.

    Question 3. Wetland restoration is a key tool in balancing 
environmental protection and development. Can you provide any examples 
where wetland restoration is being halted due to Section 404 permitting 
delays?
    Answer. Yes, wetland restoration is very important and provides 
valuable environmental benefits. However, one of the greatest 
regulatory barriers is WOTUS compliance because these projects often 
require work in connected streams. For instance, Iowa's Department of 
Agriculture has expressed serious frustration over the challenges that 
the WOTUS permitting regime has caused in the conservation space. Iowa 
Agriculture Secretary Mike Naig has been rather vocal about the fact 
that this regulatory red tape is standing in the way of the creation of 
new wetlands and preventing the projects from being completed due to 
mitigation requirements. It is unfortunate that the positive 
environmental and ecological impacts of these projects cannot be 
realized because of the agencies' lack of clarity in WOTUS regulations.

    Question 4. EPA Administrator Michael Regan has publicly committed 
to being transparent, stating he wanted EPA to ``be a flagship example 
of transparent, efficient, and effective government.'' \2\ You 
mentioned that states and members of your coalition filed a FOIA 
request with EPA and the Corps for training and guidelines documents 
implementing Sackett.
---------------------------------------------------------------------------
    \2\ EPA, Administrator Michael Regan Message to EPA Employees--
Reaffirming Freedom of Information Act, (May 19, 2021), available at 
https://www.epa.gov/aboutepa/administrator-michael-regan-message-epa-
employees-reaffirming-freedom-information-act-may.
---------------------------------------------------------------------------
    Do you think the EPA is living up to their promise? If not, what 
can Congress do to ensure the EPA is being transparent about WOTUS?
    Answer. The agencies' failure to provide a clear understanding of 
the important terms that define the scope of WOTUS and blatant attempts 
to conceal implementation guidance that the Corps is relying upon from 
regulated parties completely contradicts that statement made by 
Administrator Regan. As stated in my testimony, the agencies have 
failed to be transparent. The best example of this is the redacted 
Freedom of Information Act response that we received. The agencies are 
actively trying to keep information hidden from the public, making it 
all too easy for the regulated public to unknowingly break the law. It 
defies logic as to why the agencies want to keep this information 
behind closed doors. Congress needs to use their oversight power to 
demand that the agencies publicly release this information and hold 
these agencies accountable.

    Question 5. How are ephemeral features being treated by the 
Agencies post-Sackett? Has there been consistent direction on these 
features? How do you think the implementation of WOTUS in ephemeral 
features meshes with the ``relatively permanent'' direction?
    Answer. In the Sackett decision, Justice Alito did not mince words 
when it came to the federal government's jurisdiction over ephemeral 
features when he said: ``The CWA's use of `waters' encompasses `only 
those relatively permanent, standing or continuously flowing bodies of 
water `forming geographic[al] features' that are described in ordinary 
parlance as ``streams, oceans, rivers, and lakes.'' ' The Court also 
said that as a matter of ``commonsense,'' the phrase ``waters of the 
United States'' excludes ``channels containing merely intermittent or 
ephemeral flow.'' Thus, in reading and interpreting the Supreme Court's 
own decision, it is without question that ephemeral features should 
not, and cannot as a matter of law, be regulated as a WOTUS. They are 
simply not ``relatively permanent'' water features. However, the 
agencies' clear refusal to adhere to the law, and abide by the high 
court's decision has now opened the door for the regulation of 
ephemeral features. Anecdotally, we are hearing that the agencies are 
finding a way to establish jurisdiction ``by any means necessary.'' 
They are also using these non-relatively permanent features to stretch 
their interpretation of ``continuous surface connection.''

    Question 6. At the hearing, you spoke about agricultural exemptions 
from WOTUS regulations, and their lack of effectiveness. Can you 
explain what similar exemptions actually look like in practice? Are 
they being applied as they should be?
    Answer. Due to the nature of our industry, agriculture has been 
provided with some exemptions--both regulatory and statutory. In 
section 404 (F) of the CWA, the statute outlines a number of exemptions 
associated with normal farming practices. Unfortunately, the exception 
is drastically narrowed by the ``recapture'' provision found in section 
404(f)(2). Given the subjective nature of the recapture provision, 
farmers cannot confidently rely on the exemption for protection from 
CWA enforcement actions. Likewise, the regulatory exemption for prior 
converted cropland is very confusing and the correct interpretation of 
this language has been hotly debated for many years. The agricultural 
exemptions are only useful to farmers if they are clear and actually 
provide legal protections.

    Question 7. EPA and the Corps have issued a series of coordination 
memos to the regulated communities on what ``connectivity'' could be 
for determining a WOTUS. The challenge, however, is that there are no 
clear limits on connectivity. You have previously noted that non-
relatively permanent waters have been used to assert jurisdiction over 
wetlands post-Sackett. Have the Agencies provided any insight on how 
far is too far for a non-relatively permanent water to determine 
connectivity to a wetland?
    Answer. No, the agencies have not provided any clear insights as to 
what distances they will use to establish jurisdiction. They intend on 
keeping the regulated community guessing as to what will fall under 
their jurisdiction. This is why we want to see their implementation 
guidance, so we can more clearly understand where the limits lie. By 
keeping their rule ambiguously written and in the absence of public-
facing implementation guidance, the agencies can establish jurisdiction 
however they please. The public is left to take on all the risk and 
connect the dots with their livelihoods on the line. This simply is not 
fair and is a blatant failure to provide government transparency.

  Questions from Hon. David Rouzer to Vincent E. Messerly, President, 
 Stream and Wetlands Foundation, on behalf of the National Association 
                            of Home Builders

    Question 1. How do timelines for water permits differ at the state 
and Federal level, and how does this affect those who rely on such 
permits?
    Answer. The Army Corps' data indicates that general permits 
(Nationwide Permits or NWPs) for impacts to wetlands less than 0.5 
acres are typically issued within 45 days. Individual 404 permits are 
issued within 120 days. While the Corps has a non-binding policy that 
states NWPs are to be issued in 45 days and individual 404 permits are 
expected to be issued within 120 days, the actual experience of 
permittees is quite different. For example, an analysis of CWA 404 
permitting data cited by EPA and the Corps within their required 
economic analyses for the revised WOTUS rule found the average 
timeframe for a CWA 404 permit applicant to prepare, submit, and 
receive a NWP was 313 days; while the timeframe for the more complex 
individual permitting process was 788 days (2 years and 2 months). In 
addition, the Corps has the discretion to pause the permitting process 
when permit applications are sent back to the applicant for additional 
information or for modifications to the amount of proposed impacts or 
for changes in the mitigation proposal. The time that passes when the 
clock is paused, is not accounted for in the Corps data for processing 
timeframes, which can often be substantial. There can be substantial 
misuse of the Corps utilizing the ``pause'' option when processing 
permits that lead to substantial delays in the permitting process. Some 
staff (not all) have been known to send applicants on wild goose chases 
for additional information and stall the permitting process 
unnecessarily.
    In Ohio we have had a state permitting program for impacts to non-
federal waters (``isolated wetlands'') that has been in place since 
early 2002 in response to the SCOTUS ruling on SWANCC vs. Army Corps of 
Engineers. The Ohio permitting program has a tiered approach to 
permitting with compulsory timelines that the state permitting 
authority (Ohio EPA) must abide by. Ohio has three categories of 
wetland, with categories being assigned based on the wetland's relative 
functions and services, sensitivity to disturbance, rarity, and 
potential to be adequately compensated for by wetland mitigation.
    Wetlands assigned to category 1 are low quality wetlands; wetlands 
assigned to category 2 are moderate quality, and wetlands assigned to 
category 3 are high quality. Rapid and/or detailed functional 
assessment tools that are approved by the agency are used to determine 
wetland category. The EPA advocated for the development and use of 
rapid assessment tools 25+ years ago. Those tools are to be used to 
make permitting decisions and to evaluate compensatory mitigation 
projects.
    Ohio has three (3) levels of permits to authorize impacts to non-
WOTUS wetlands. OEPA has 15 days to notify that applicant if their 
permit application is complete or not. If the permit application is 
determined to be incomplete, the OEPA must timely notify the applicant 
of the deficiency. If they fail to notify the applicant within the 15-
day review period, by default the application is deemed to be complete. 
Below is a brief description of the three levels of permits used in 
Ohio for non-WOTUS impacts.
      Level 1 permits are for impacts to 0.5 acres or less of 
category 1 and 2 wetlands. OEPA must approve or deny a level 1 permit 
within 30-days of determining an application is complete. Failure of 
the agency to timely approve or deny the permit results in an approved 
permit by default.

      Level 2 permits are for impacts greater than 0.5 acres of 
category 1 wetland (with no upper limit) or to greater than 0.5 acres 
of category 2 wetland up to 3.0 acres. OEPA must approve or deny a 
level 2 permit within 90-days of determining an application is 
complete. Failure of the agency to timely approve or deny the permit 
results in an approved permit by default.

      Level 3 permits are for impacts of greater than 3.0 acres 
of category 2 wetlands and to category 3 wetlands. OEPA must approve or 
deny a level 3 permit within 180-days of determining an application is 
complete. Failure of the agency to timely approve or deny the permit 
results in an approved permit by default.

    Question 2. Wetland restoration is a key tool in balancing 
environmental protection and development. Can you provide any examples 
where wetland restoration is being halted due to Section 404 permitting 
delays?
    Answer. The Environmental Policy Innovation Center (EPIC) issued a 
report in 2023 that clearly documents the Corps inability to timely 
complete the review and approval of restoration projects for mitigation 
banks. Additionally, the Corps recently acknowledged that they have not 
promptly completed the review and approval of mitigation banks (e.g. 
wetland restoration) as they rolled out a memo to the public. As 
announced at the Ecological Restoration Business Association's 
(``ERBA'') 8th Annual Policy Conference held on 16 September 2024, 
Assistant Secretary of the Army Michael Connor signed a memorandum 
titled, Improving U.S. Army Corps of Engineers Timeline Compliance with 
the 2008 Compensatory Mitigation Rule (``Memorandum''), clarifying 
certain aspects of the 2008 Mitigation Rule to improve the U.S. Army 
Corps of Engineers' (``Corps'') timelines for review of proposed 
mitigation banks and in-lieu fee (``ILF'') programs. The Memorandum is 
issued in response to ERBA recommendations and a recent analysis of 
Corps data indicating that the 2008 Mitigation Rule's review timeline 
of no longer than 225 days is on average, not being met. ERBA sent a 
letter to the Corps in April 2022 requesting a regulatory guidance 
letter on the 2008 Mitigation Rule that includes several of the final 
memo's recommendations. ERBA's April 2022 letter can be accessed 
here.\\ The Memorandum provides the following clarifications:
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    \\ https://img1.wsimg.com/blobby/go/41e32553-5f04-46fc-
9fa2-2486b37b0f46/downloads/ERBA
%20RGL%20Recommendations%20to%20Corps%20HQ%20(April%2020.pdf?ver=1726589
984959
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    1.  As chair of the Interagency Review Team (``IRT''), the district 
engineer should strive to achieve consensus with IRT members within the 
mitigation rule timeline; if consensus is not readily possible, the 
district engineer will move the review process forward so as to meet 
the 2008 Mitigation Rule timeline.

    2.  The district engineer should, to all extents practicable, 
minimize the number of review iterations of complete draft instruments.

    3.  If a draft instrument is not complete, it should be returned 
with the missing components identified.

    4.  If specific provision(s) of a complete draft instrument have 
been identified as substantive area(s) of concern by IRT members, the 
district engineer should work with the IRT members and sponsor to 
address those specific concerns within the constraints of the 
mitigation rule timeline. Extending the mitigation rule timeline should 
be limited to the scenarios cited in 33 CFR Sec.  332.8(f).

    5.  The district engineer should comply with the 2008 Mitigation 
Rule timeline for credit release decisions of 45 days.

    6.  Site visits may not be necessary for every credit release but 
should be used when documentation provided by the sponsor does not 
sufficiently inform a decision by the district engineer; when the 
district engineer determines that a site visit is necessary, the 
district engineer should immediately notify the sponsor.

    7.  Notification and scheduling of a site visit related to a credit 
release request should occur within the mitigation rule timeline for 
credit release requests of 45 days. The district engineer and sponsor's 
availability should determine when the site visit occurs, which may be 
outside the 45-day period.

    8.  IRT members should be invited to participate in the scheduled 
site visit, but the availability of individual IRT member(s) should not 
drive the scheduling of, nor delay the site visit.

    9.  Headquarters should develop nationwide templates for the 
general elements that should be included in any mitigation bank or ILF 
program instruments for use where there are no local developed 
templates. In addition, Headquarters should seek input from federal, 
Tribal, and state partners as well as the public and private sectors 
(including mitigation bank sponsors and in-lieu fee program sponsors) 
and/or NGO partners to develop national templates for specific types of 
financial assurances.

    10.  The district engineer should develop, in collaboration with 
the IRT, templates for site protection instruments, credit release 
schedules, and service area determinations.

    11.  The district engineer should, in collaboration with the IRT, 
develop and regularly update rapid assessment methods (``RAMs'') for 
quantifying impact and offset actions, while using standard operating 
procedures (``SOPs'') until such RAMs are available. As part of this 
effort, the district engineer should issue a public notice on draft 
rapid assessment procedures and SOPs to allow the regulated public and 
other interested members of the public (including third-party 
mitigation sponsors) to provide comments on these tools.

    12.  Headquarters should take steps to better document the causes 
of delays in the mitigation rule timeline and credit release timeline, 
including adapting existing databases and record-keeping (e.g., ORM 
data fields). Additionally, the Corps should seek input from federal 
(e.g., EPA or other federal IRT members), Tribal, and state partners as 
well as the private sector and/or NGO partners to better identify the 
sources of delay and potential solutions.

    Question 3. Could you share some real-world examples where WOTUS 
permitting significantly delayed, or even caused a permit applicant to 
walk away from, a project?
    Answer. As stated in Q1: permitting for a NWP can extend upward of 
313 days, and an IP can run for over two years.
    Below are three examples, where I'm able to share client names:
      The proposed Ikea in the greater Cleveland area that was 
withdrawn.
      Sherwin Williams research and development facility was 
substantially delayed (greater Cleveland area).
      Cleveland Clinic facility in Avon, OH was substantially 
delayed.

    Question 4. Permitting delays and fees associated with the Section 
404 permitting process can rack up quickly, often leading to costs 
being passed on to the price of new developments, affecting 
affordability. In your experience working with home builders to develop 
projects of 10 to 25 homes, what do permitting delays and costs look 
like, not only for the developers, but also for home buyers?
    Answer. Regrettably, there are thousands of small projects that die 
before prospective project proponents have even applied for a permit. 
Most of these projects are contemplated by small businesses and 
individuals that discover how time consuming and costly it is to pull a 
404 permit. For example, when the agencies proposed the latest WOTUS 
regulatory definition, their economic analyses included a study that 
examined the average (i.e., median) permitting timeframes it took 
landowners to prepare, submit, and receive from the Corps permit 
authorizations for both NWPs and individual permits (IPs). Based upon 
that study the median timeframe to obtain a streamlined NWP was 313 
days when a more complex IP took 788 to obtain. Therefore, even a 
simple NWP authorizing less than \1/2\ acre impact of wetland can 
easily cost more than $200,000--engineers, surveyors, wetland 
scientists, attorneys, mitigation costs, and land costs all contribute 
to this amount.
    Delays in the permitting process are an added layer of strain for 
applicants. Time delays are costly--interest expense and additional 
consultant and legal fees add up quickly. Often, we see applicants 
simply agree to accept PJDs and permit terms and conditions that they 
would otherwise not agree to, just to end the permitting process and to 
stop the hemorrhaging of capital to get the project permitted. The cost 
to develop the lots are subsequently passed on to the homebuyers. This 
can easily amount to an additional cost of more than $10,000 per lot 
that is passed along to the home buyer. As I've stated in my written 
testimony, homebuyers are acutely sensitive to price changes. NAHB's 
``Priced Out'' study demonstrates that for every $1,000 increase in a 
new, median priced home--106,031 households are priced out of the 
market.

    Question 5. EPA and the Corps have issued a series of coordination 
memos to the regulated communities on what ``connectivity'' could be 
for determining a WOTUS. The challenge, however, is that there are no 
clear limits on connectivity. In some of your testimony, you have 
mentioned that non-relatively permanent waters have been used to assert 
jurisdiction over wetlands post-Sackett. Have the Agencies provided any 
insight on how far is too far for a non-relatively permanent water to 
determine connectivity to a wetland?
    Answer. The coordination memos that the EPA and Army Corps issued 
do not provide the necessary, clear guidelines the regulated public 
needs to confidently navigate the serious consequences of the CWA. The 
memos have demonstrated to project proponents that 195 feet is 
``relatively short'' to establish ``connectivity''; however, we've seen 
an example where they tried to trace two miles of connectivity and that 
was deemed too far. The public is operating under this system of vague 
rules to try and determine if their property is under federal 
jurisdiction.
    In Sackett, the Supreme Court held that the CWA extends to ``only'' 
those wetlands that are ``as a practical matter indistinguishable from 
waters of the United States.'' \1\ Furthermore\\, the Court stated that 
a wetland cannot be considered part of water of the United States 
``even if they are located nearby.''
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    \1\ [Editor's note: A citation for footnote 1 was not provided.]
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    If the Agencies abided by the Court's directive surrounding 
distinguishability, the public could more confidently navigate the 404-
permitting process.