Providing for Congressional Disapproval of the Rule Submitted By the Department of the Army, Corps of Engineers, Department of Defense and the Environmental Protection Agency

Floor Speech

Clean water is a human right, and the health and safety of our communities and the success of our economy depend upon it.

House Democrats stand for clean water, and today, I rise to oppose H.J. Res. 27.

Last Congress, we passed a bipartisan, once-in-a-generation investment in our Nation's infrastructure through the bipartisan infrastructure law, investing almost $13 billion in clean water infrastructure upgrades and creating jobs in communities across this country.

The BIL showed what Congress can do when we focus on the needs of American families. Yet, instead of putting people over pollution, this CRA does the opposite.

Now, my State of Washington 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 the State.

My constituents know that rivers, streams, and wetlands, are intrinsically connected. Pollution that starts in one body of water does not stay put.

House Democrats believe we can protect clean water, while providing certainty to businesses, to farmers, to Americans who depend upon clean water for their lives and livelihoods.

This is especially true for the 117 million Americans who depend on smaller streams as a source of their drinking water at a time when many States are facing historic droughts.

My colleagues on the other side of the aisle say they want clean water rules that are simple, clear and easy to follow. I want that, too.

The Biden administration's Clean Water Restoration Rule does exactly that; following the law and the science of protecting clean water and providing regulatory certainty and stability to the implementation of the Clean Water Act.

This resolution does the opposite. This resolution will not bring back the previous administration's Navigable Waters Protection Rule, which removed Federal protections on roughly half of the Nation's wetlands and 70 percent of its rivers and streams.

That rule was rightly rejected by a Federal court in 2021, as ``fundamentally flawed'' and likely to cause ``serious environmental harm'' every day it remained in effect. It is off the table entirely.

This resolution before us today will also not eliminate the use of the ``significant nexus'' test because that test was mandated by the U.S. Supreme Court. It has been in effect since the Bush administration and remains in place today.

However, this resolution will adversely impact farmers, ranchers, and developers by creating regulatory chaos and eliminating important exclusions that have been codified in the new rule to help water- dependent businesses and farmers to understand and comply with the law.

Now, despite fear-mongering on this issue, the truth is simple. The Biden proposal will have no impact on the average family farmer in this country. Why? That is because farmers are, by law, largely exempt from the Clean Water Act permitting requirements where less than 1 percent of all annual wetlands permits relate to agricultural activities nationwide.

Therefore, if your farm is engaged in normal farming, forestry, and ranching activity, or undertakes the construction or maintenance of a farm, stock pond, or irrigation ditch, you are exempt from the permitting requirements of the act, and the current proposal does not change that exemption.

Finally, for those waiting to see whether the Supreme Court will somehow fix this issue in the upcoming Sackett case, this resolution will actually hinder the ability of the Corps and the EPA to respond to the Supreme Court's potential recommendations later this year.

That is why this resolution before us makes no sense. It would invalidate the Biden rule and all the clarifications and exceptions for business it contains in favor of a similarly structured but much less clear regulatory framework. That is a recipe for uncertainty, legal battles, and continued gridlock, the opposite of what proponents say they are looking for. It would also tie the hands of Federal agencies seeking to help individuals comply with the law, unless Congress acts again.

This shortsighted action will lessen, not increase, certainty. It is a big mistake. I support the administration's efforts to efficiently implement the critical water infrastructure investments included in the BIL so we can begin to realize the public health, economic, and environmental benefits that come with clean water.

This resolution represents a giant step backward for clean water, increases uncertainty for farmers, homebuilders, roadbuilders, and all American families, and doubles down on the infighting and chaos.

I urge my colleagues to join me in opposing H.J. Res. 27 and move together toward a future with predictability for those that need it and clean water for communities that cannot survive without it.

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Mr. LARSEN of Washington. Stansbury).

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Mr. LARSEN of Washington. Mr. Speaker, I include in the Record a list of 91 organizations in opposition to H.J. Res. 27 and an open letter to Congress from the Environmental Protection Network in opposition to H.J. Res. 27. Organizations in Opposition to H.J. Res. 27, Resolution of Disapproval of Biden Clean Water Restoration Rule

350.org, A Community Voice, Alabama Rivers Alliance, Alaska Community Action on Toxics, Alliance for the Great Lakes, Alliance of Nurses for Healthy Environments, American Geophysical Union, American Public Health Association, American Rivers, American Sustainable Business Network, Amigos Bravos, Anthropocene Alliance, Appalachian Trail Conservancy, Associacion de Residentes de La Margaita, Inc., Atchafalaya Basinkeeper, Black Millennials 4 Flint, Cahaba River Society, California Environmental Voters, Center for Biological Diversity, Center for Environmental Transformation, Chesapeake Bay Foundation, Children's Environmental Health Network, Clean Water Action.

Clean, Healthy, Educated, Safe & Sustainable Community, Inc., Coalition for Wetlands and Forests, Committee on the Middle Fork Vermilion River, Community In-Power and Development Association Inc. (CIDA Inc.), Concerned Citizens for Nuclear Safety, Concerned Citizens of Cook County (Georgia), Conservation Alabama, Earthjustice, Environment America, Environment Texas, Environmental Law & Policy Center, Environmental Working Group, For Love of Water (FLOW), FreshWater Accountability Project, Freshwater Future, Friends of Buckingham, Friends of the Mississippi River, Gila Resources Information Project, Greater Edwards Aquifer Alliance, Greater Neighborhood Alliance of Jersey City, NJ, GreenLatinos, Groundswell Charleston SC.

Gullah/Geechee Sea Island Coalition, Healthy Gulf, Hispanic Federation, Idaho Rivers United, Illinois Council of Trout Unlimited, Izaak Walton League of America, Lake Pepin Legacy Alliance, Lawyers for Good Government (L4GG), League of Conservation Voters, Lynn Canal Conservation, Maine Conservation Voters, Malach Consulting, Michigan League of Conservation Voters, Milton's Concerned Citizens, Mississippi River Collaborative, Missouri Confluence Waterkeeper, Montana Conservation Voters, MS Communities United for Prosperity (MCUP), National Parks Conservation Association, National Wildlife Federation, Natural Heritage Institute, Natural Resources Defense Council, NC League of Conservation Voters.

New Mexico Climate Justice, New Mexico Environmental Law Center, New York League of Conservation Voters, Northeastern Minnesotans for Wilderness, Ohio River Foundation, Patagonia Area Resource Alliance, PES, Rapid Creek Watershed Action, Renewal of Life Trust, River Network, Save the Illinois River, Inc., STIR, Serene Wildlife Sanctuary LLC, Sierra Club, Southern Environmental Law Center, Surfrider Foundation, The Clinch Coalition, The Water Collaborative of Greater New Orleans, Tookany/Tacony-Frankford Watershed Partnership, Virginia League of Conservation Voters, Washington Conservation Action, Waterkeepers Chesapeake, Weequahic Park Association, Winyah Rivers Alliance. ____ Environmental Protection Network, March 2, 2023. Open Letter to Congress on Congressional Review of the Waters of the United States Rule

Dear Member of Congress: As alumni of the Environmental Protection Agency (EPA), we are writing to share our perspectives on congressional review of the Clean Water Act ``Waters of the United States'' rule. The Environmental Protection Network (EPN) taps the bipartisan expertise of more than 550 former EPA staff who volunteer their unique perspectives as scientists and former regulators, permit issuers, and grant providers with decades of historical knowledge and subject matter expertise.

A Constructive Framework for Assessing EPA Rules Using the Congressional Review Act

Congress has an important responsibility to ensure that EPA and other federal agencies are faithful to congressional intent when issuing rules. Congress' congressional review responsibilities are laid out in law, commonly referred to as the ``Congressional Review Act'' (CRA).

Rulemaking, when done appropriately, is a methodical process built upon deep understanding of complex and technical information and informed by a wide range of stakeholders with different perspectives. The bipartisan drafters of the CRA recognized the vital roles agencies play in implementing laws, and they strove to strike a balance between ``reclaiming for Congress some of its policymaking authority, without at the same time requiring Congress to become a super regulatory agency.''

The drafters of the CRA shined a light on how to navigate this balance, recommending that Congress intervene where rules are ``surprisingly different from the expectations of Congress or the public.''

In addition to avoiding taking on the role of ``super regulatory agency,'' Congress must consider the full ramifications of a resolution of disapproval, which prohibits agencies from taking substantially similar action. The CRA acts like a sledgehammer, not a scalpel. A CRA disapproval resolution can leave a chaotic tangle of regulatory uncertainty and confusion in its wake, resulting in significant harm to the public, regulated entities, and the environment. According to the Congressional Research Service, Congressional disapproval:

``creates uncertainty and could restrict the agency's ability to act going forward. This can potentially create a difficult situation for an agency if Congress uses the CRA to disapprove rules that were specifically required by law . . .''

Historically, members of Congress from both parties have cited the ``bluntness'' of the CRA tool as the reason they rejected congressional disapproval even when they did not agree with the underlying rule.

EPN suggests a constructive framework of four key questions that Congress should consider when determining whether a rule is ``surprisingly different from the expectations of Congress,'' without venturing into the territory of becoming a ``super regulatory agency'':

1. Follow the Law: Did the agency follow the law, as directed by Congress and the courts?

2. Follow the Science: Did the agency follow the science, including adequately explaining its factual basis and reasoning?

3. Listen to Stakeholders: Did the agency meaningfully engage with and respond to all major stakeholders, taking different perspectives meaningfully into account?

4. Do No Harm: Would congressional disapproval worsen or improve outcomes for public health, the environment, and stakeholders, including regulated entities?

In pursuing this framework, members of Congress can provide meaningful oversight of actions, while minimizing the harm created by the CRA. In today's climate, with cyclical swings of the political pendulum, there is already significant regulatory whiplash and chaos. Congress should do everything in its power to lessen this confusion, not add to it. Applying the Framework to the Waters of the United States Rule

EPN believes that Congress should support the ``Revised Definition of `Waters of the United States' '' rule published by EPA and the Army Corps of Engineers on January 18, 2023. This rule protects waters that are critical to the health and welfare of the American people. The rule is not ``surprisingly different from the expectations of Congress or the public.'' In fact, the rule conforms to the Supreme Court's instructions and largely reverts to the long-existing rule that pre-dates the regulatory confusion that has prevailed for too long.

Further, a congressional resolution of disapproval in this case risks a prolonged and perhaps permanent state of regulatory confusion that will create more uncertainty for landowners and others who deserve clear answers on how to comply with the Clean Water Act.

A thoughtful exploration of the four framing CRA questions we pose above will demonstrate that EPA has in fact done its job and done it well.

(1) EPA Followed the Law: The rule is consistent with the objectives of the federal Clean Water Act to ``restore and maintain the chemical, physical, and biological integrity of the nation's waters,'' which are largely interconnected and which flow over and between state lines. The agencies are interpreting ``waters of the United States'' to mean the waters defined by the familiar pre-2015 regulations, with amendments to reflect the agencies' determination of the statutory limits on the scope informed by Supreme Court precedent, the best available science, and the agencies' experience and technical expertise. In response to both the case law and the science, the 2023 rule only includes upstream waters and wetlands as waters of the U.S. when they significantly affect the integrity of waters for which federal interest is indisputable (traditional navigable waters, territorial seas, and interstate waters).

EPA has also clearly recognized Supreme Court precedent, which, of course, could change with the expected decision in Sackett v. United States.

(2) EPA Followed the Science: The agency incorporates well- established science and protects waters that are critical to the health and welfare of the American people, particularly given the extreme weather challenges from climate change and the disproportionate impact on environmental justice communities. For the first time, the 2023 rule provides a detailed definition of the functions that must be assessed and the specific factors that must be considered in determining whether a water has a significant nexus to a water for which federal interest is indisputable. This definition is well supported by scientific evidence and is consistent with the factors the Supreme Court recently identified as critical for determining whether a discharge is jurisdictional in Country of Maui, Hawaii v. Hawaii Wildlife Fund.

(3) EPA Responded to Stakeholders Concerns: EPA is to be commended on a particularly thorough and far-reaching stakeholder engagement process, ultimately choosing a middle road that supports public health, environmental protection, agricultural activity, and economic growth. It covers less than the Obama administration proposed in 2015 but more than the Trump administration's rule. The agency conducted regional roundtables throughout the country, as well as solicited input from small businesses, tribes, and the public through multiple channels. In response to farmers concerns, the 2023 rule expands the number of waters exempted from CWA jurisdiction, exempting certain types of ditches, irrigated areas, farm ponds, and water-filled depressions in dry land, and erosional features such as gullies and rills.

(4) Congressional Disapproval Would Create a Chaotic Mess: A congressional vote of disapproval would create prolonged uncertainty and confusion for stakeholders that need to know what waters are protected by the Clean Water Act. Such an action would also endanger the drinking water, fisheries, and flood control for communities throughout the nation.

Congress should support this rulemaking process as it moves through the courts, and refrain from adding more confusion to the situation. Allowing EPA and the Army Corps to complete their job as defined in the law and overseen by the courts will create the kind of clarity stakeholders need.

We are happy to make EPN experts available to you to discuss this further. Sincerely, Michelle Roos, Executive Director, Environmental Protection Network.

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Mr. LARSEN of Washington. Velazquez).

I just want to make a note that the argument that this is like a taking does not hold any water--excuse the pun--because a 1992 case in the Supreme Court determined that rules like this actually do not qualify as a taking under the U.S. Constitution or under U.S. law.

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Mr. LARSEN of Washington.

It also should be on the Record that the other side of the aisle had the majority in the House, the Senate, and the Presidency in 2017 and 2018 and also did nothing on this rule. It wasn't important enough for them to do anything.

Then the President's rule at the time moved forward, and it was tossed by two different courts. It was rejected by the courts, which leaves us in this position where we are today of playing ping-pong with the waters of the U.S. rule.

Our argument today is: Let's bring certainty to the Clean Water Act, bring certainty to the waters of the U.S., reject H.J. Res. 27, and move forward with the existing rule from the current administration.

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Mr. LARSEN of Washington. Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I want to be clear that I do agree with some of the comments made by the previous speaker that this has been a ping-pong match among administrations over the last 10 years where all Americans have lived under various definitions of this rule.

I, too, want to end that ping-pong match which is why I am calling on the House of Representatives to vote ``no'' on this resolution and get on with the certainty that the current administration's rule provides.

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Mr. LARSEN of Washington. Mr. Speaker, I continue to reserve the balance of my time.

This debate we are having today is only about clean water, and we need to put people and clean water above pollution. The administration has a rule that provides certainty, and we should move forward on that. But this debate is about clean water.

Mr. Speaker, I do have to address the comment about who cares about rural America. I am not making an argument today that any one party or any one person cares more about rural America.

However, if we are going to support rural America, keep implementing the bipartisan infrastructure law, which puts $65 billion into broadband, including billions of dollars to expand broadband into rural areas--something happening in my State and States around the country.

Pass comprehensive immigration reform so there is a supply of workers in this country, including farmworkers.

Open up trade agreements. Open up trade for agriculture, including ag in my State, in my own district for the milk producers, the potato producers, the raspberry and blueberry producers, who are exporting product all over the country.

That is what it means--at least on my side of the State--to support rural America.

I support rural America, and a lot of folks in this Chamber on both sides support our farmers and rural America. Let's take action to do just that.

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Mr. LARSEN of Washington. Mr. Speaker, I reserve the balance of my time.

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Mr. LARSEN of Washington. Mr. Speaker, I continue to reserve the balance of my time.

Mr. Speaker, I will note that in the current administration's rule the agencies added six additional exclusions to the regulatory text for generally nonjurisdictional features under the pre-2015 regulatory effort and continues the agencies' two longstanding exclusions for wastewater treatment systems and prior converted farmland.

In addition, the final rule continues the agencies' longstanding regulatory definition of wetlands, as well. Now, that changed a longstanding definition of wetlands, something that again adds to the certainty of the rule as well as with the six additional exclusions creates more exclusions than in the Bush-era rule.

Last year, this Congress came together to provide historic investments in our Nation's infrastructure through the bipartisan infrastructure law, providing communities with almost $13 billion in clean water infrastructure upgrades and creating jobs.

These clean water investments help areas like Skagit County, where I am from, which has used the Clean Water State Revolving Fund money to protect the water quality of Gilligan Creek, the drinking water source for many in that county.

Every day, more and more American families are realizing the public health, economic, and environmental benefits of the bipartisan infrastructure law, benefits that will continue as additional BIL resources are made available and implemented across the country.

The BIL is what Congress can do at its best. This resolution is not.

This resolution provides no benefits to public health. It seeks to eliminate protections for rivers, streams, and wetlands, many of which serve as a source of drinking water for hundreds of millions of Americans.

This resolution provides no benefits to our economy as a whole. It not only casts aside a time-tested, scientifically based tool to implement the Clean Water Act, but then further blocks the Corps of Engineers and the EPA from providing any additional clarity to businesses, farmers, and homebuilders going forward.

In short, this resolution is a recipe for uncertainty, for litigation, for continued gridlock, the very things that my friends on the other side of the aisle are really trying to avoid, as we are as well.

This resolution is a step backward for clean water. It is a step backward for certainty. I urge my colleagues to see this resolution for what it is. It is not for clean water. It is an attack on our clean water future. It fails to provide clarity. It fails to provide consistency for our businesses, our farmers, and for many in our communities who rely on clean water who are not businesses, who are not farmers, who are not ranchers. Many of those folks look to Congress to ensure clean water, as well.

Mr. Speaker, I am urging my colleagues to vote ``no'' on H.J. Res. 27, and I yield back the balance of my time.

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