February 08, 2023

Ranking Members Larsen, Napolitano Statements from Hearing on Protecting the Waters of the United States

Washington, D.C. — The following are opening remarks, as prepared for delivery, from Ranking Member of the House Committee on Transportation and Infrastructure Rick Larsen (D-WA) and Ranking Member of the Subcommittee on Water Resources and Environment Grace F. Napolitano (D-CA) during today’s hearing titled, “Stakeholder Perspectives on the Impacts of the Biden Administration’s Waters of the United States (WOTUS) Rule.”  

Videos of opening statements from Larsen and Napolitano can be found here and here

More information on the hearing can be found here.

Ranking Member Larsen:

My state is defined by its clean water, including the health of the Puget Sound and the hundreds of lakes, and thousands of miles of rivers and streams throughout Washington.

Washingtonians know that rivers, streams, and wetlands are intrinsically connected. The health of Washington’s waters and its water-related economy depends on a strong partnership with the federal government and a level playing field among its upstream and downstream neighbors, including Tribal lands. 

The need for a level playing field was the reason why, 50 years ago, this committee passed the original Clean Water Act. In the 1970s, Congress specifically noted in the legislative history of the Act that a state-by-state, go-it-alone approach was “inadequate in every vital aspect” and left waters severely polluted. 

Recently, my state joined several others in highlighting to the Supreme Court Congress’ deliberate decision in 1972 to replace an ineffective patchwork of state laws with the Clean Water Act. 
In doing so, Congress sought to protect the interests of downstream states that might otherwise suffer the environmental consequences and economic burdens of weak or non-existent pollution controls upstream. 

That was our shared, bipartisan view of clean water for decades—a strong federal, state partnership to protect our waters, where the Corps and EPA set a robust federal floor of protections and states could choose to do more, but not less.  

It was the view embodied in the Reagan-era regulations that, for the most part, have been adopted by every Presidential administration since—including the previous administration, until it changed its mind.

It is also the view embodied in the Biden proposal that seeks to clarify Clean Water Act regulations after a federal district court tossed out the Trump administration rules.

In 2006, the Supreme Court complicated the Clean Water Act by issuing a decision that instituted the use of a test for determining what waters remained protected by the Act, but the Court did not agree on a single test. That is where I started following the WOTUS issue in several marathon hearings before this committee and subcommittee—discussing many of the same issues and uncertainty we are discussing today.

Since the Rapanos decision, every Presidential administration has adopted the two tests outlined by the Supreme Court—the “relatively permanent” test and the “significant nexus” test—for determining Clean Water Act protections. 

The Trump administration’s second rulemaking attempt abandoned the “significant nexus” test. The result was an unfathomable loss of federal protections in place since 1972 for countless streams, lakes, and wetlands, and no evidence that states have the desire or resources to fill in the gaps. 

The Trump rule defied clean water history, defied the law, and defied the science on how watersheds function. Fortunately, this rule was rejected by a federal court only 14 months after it took effect, reinstating the Reagan-era regulations and the continued use of both the “relatively permanent” and “significant nexus” tests.  

The Biden rule recodifies the Reagan-era framework and the use of both jurisdictional tests, but it also includes significant improvements and exemptions, requested by stakeholders, to address legitimate concerns over uncertainty and to ease compliance.

The Biden rule seeks to balance the need to protect waters and wetlands, consistent with the goals of the Clean Water Act, while trying to comply with the law, the science, and the opinions of the Supreme Court.  

The Biden rule is not perfect. But, in my opinion, it is a far better starting place for certainty, legality, and protecting the quality of our nation’s waters than the Dirty Water Rule.   

Unfortunately, the recently introduced Congressional Review Act resolution to block the Biden proposal is likely to create more uncertainty. Should this resolution become law—and I certainly will work to ensure it does not—it has the potential to cause even more chaos and confusion over what waters remain protected by the Clean Water Act.

For example, if the resolution is adopted, it is unlikely to prevent the continued use of the “significant nexus” test, as this test is already being utilized today. However, passage of the resolution would eliminate those stakeholder-led clarifications in the Biden rule and would prevent future administrations from further improving the rule unless Congress decides to intervene.

Further, enactment of this resolution could block agencies from helping stakeholders comply with any new jurisdictional test that might be announced by the Supreme Court. If that were the case, stakeholders could be left with an invalidated rulemaking and a framework for a new, judicially-led test, but no guidance on how to apply that test in the field.

In my view, that is exactly the opposite of certainty and a big mistake. I support this administration’s efforts to protect water quality and to provide stakeholders with some additional clarity on how to comply with the Clean Water Act. 

I thank the witnesses for joining us today and I look forward to your testimony.
Ranking Member Napolitano:

Thank you, Mr. Chairman, and congratulations on your new role leading the Subcommittee on Water Resources and Environment. I am excited to continue to work with you to provide flood control, water quality protection, environmental restoration, and navigation for our local communities across the country. 

This subcommittee was extremely successful last Congress in addressing the bipartisan needs of the nation. From enactment of our fifth-consecutive and bipartisan WRDA bill, to the first reauthorization of the Clean Water SRF since its inception, to addressing the individual needs of unique watersheds throughout the county on a bipartisan basis, this subcommittee addressed our critical water infrastructure needs while also protecting our environment for future generations.  We look forward to a 6th bipartisan WRDA bill this Congress.

Clean water was not always a partisan issue. 

In 1972, the House voted to enact the Clean Water Act over the veto of former President Nixon by a 10-to-1 margin, and no issue has more support among American families than the protection of our nation’s waters.  

The history of water pollution protection in this country, the law, and science require a comprehensive approach to protecting our rivers, streams, and wetlands. Yet, former-President Trump’s Dirty Water Rule will return us to the days when the Great Lakes were declared “dead,” and when some rivers literally caught fire.

There should be a strong partnership between the U.S. Army Corps of Engineers, the U.S. Environmental Protection Agency, and our States, where each entity plays a responsible role in ensuring a level-playing field of clean water among upstream and downstream states. Yet, our limited experience under the Dirty Water Rule showed the exact opposite.

To demonstrate, I ask unanimous consent that a summary of state legal constraints on protecting waters not covered by the Clean Water Act prepared by the Environmental Law Institute be made part of today’s hearing record.

Mr. Chairman, the Clean Water Act ensures our cities, our businesses, and our farmers, have sufficient, safe, and sustainable supplies of water, to meet our quality-of-life needs, our economic and agricultural needs, and our day-to-day survival, especially in the arid regions of the country, such as I represent in southern California.

The Trump Dirty Water Rule eliminated federal protections on a minimum of 75% of streams and wetlands that have been protected by the Act since its inception. These are the very same waters and wetlands that are critical to capturing and storing rain and snowmelt to ensure a long-term supply of water and recharge our underground aquifers. The Dirty Water Rule removed protections of the streams and wetlands that are a source of the drinking water to over 117 million Americans.

We recognize that there is a cost to protecting our communities, our sources of drinking water, and our environment. However, we believe that this cost should be borne by those seeking to pollute our waterways or fill our wetlands for their own personal gain rather than transferring that cost to average Americans, or to downstream states. The Trump Dirty Water Rule would have led to higher water bills for American families and businesses, as water agencies will be forced to clean the polluted water, prior to it being delivered to our taps.

The Dirty Water Rule would have increased the level of pollution in our waterbodies, increased the downstream risk of flooding in our communities, polluted sources of our drinking water, and made hard working American families pay for the mess with increased water rates.

We all want certainty—and for decades, the regulations established by former President Reagan, and implemented by every Republican and Democratic administration since then, established a framework to achieve that certainty—but we believe we can have certainty, as well as clean water—and we don’t have to choose between them. 

The Trump Dirty Water Rule chose one definition of certainty—the elimination of federal protection of our rivers, streams, and wetlands—over the goals of the Clean Water Act, which seeks to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”

Now, supporters of the Trump Dirty Water Rule are urging the Supreme Court to create even more uncertainty through a new test that could result in increased litigation and decreased protection of our waterbodies. 

I applaud the Biden administration for overturning the Trump Dirty Water Rule and reinstating decades-old and well-understood protections of our nation’s rivers, streams, and wetlands. The Biden Administration recognizes that families and businesses should not be burdened with paying to clean up the pollution of others in order to have clean water at their tap. We must protect and strengthen the Clean Water Act to preserve the health of our economy as well as our communities, our environment, and our water-dependent futures.

Again Mr. Chairman, congratulations on your new role as Chairman of the Subcommittee on Water Resources and Environment. I yield back the balance of my time.