EPW Hearing Statement: A Review of the Technical, Scientific and Legal Basis of the WOTUS Rule

WASHINGTON – Today, the U.S. Senate Environment and Public Works Committee held the hearing, “A Review of the Technical, Scientific, and Legal Basis of the WOTUS Rule” Below is the opening statement of Ranking Member Tom Carper (D-Del.), as prepared for delivery:

“Thank you, Mr. Chairman, for giving us this opportunity to explore the legal, technical and scientific basis for the Clean Water Rule. This hearing also presents a valuable opportunity to consider the critical elements of any sound rulemaking to address the definition of water that receives federal protection — including rulemaking that would be required to rescind the Rule we are considering today. Fortunately, we have a panel of experts to help us sort through the nuance of law and science. We welcome you all and very much appreciate your contribution to our discussion. But, before we dive into the details, I’d like to take a step back and recall how we got to this point with the definition of ‘Waters of the U.S.’

“The passage of the Clean Water Act was a product of horrific water quality in many parts of our country. Many of us still recall the year that the Cuyahoga River was a river of fire flowing through Cleveland, Ohio. There was broad, national concern over the state of our waters, and there was a consensus that we needed to do something comprehensive to fix the problem.

“Congress was not confused or uncertain about what it was seeking to protect when it passed the Clean Water Act in 1972.  The first sentence of the 1972 Act says: ‘The objective of this chapter is to restore and maintain the chemical, physical and biological integrity of the Nation’s waters.’ When it reported that legislation, this Committee acknowledged that ‘it is essential that discharges of pollution be controlled at the source.’ And so, the Act defined the term ‘navigable waters’ broadly, as all ‘the waters of the United States.’ Congress clearly understood that cleaning up our waters involved controlling pollution discharges in a lot of places where ships don’t go.

“While broad, the coverage of the Act was clear. While demanding on cities, industries, farmers, ranchers and developers, the benefits of the Act were dramatic. More than 60 percent of the lakes and 55 percent of rivers were able to achieve the Act’s water quality goals of being fishable and swimmable by 2003.

“I believe that all of us understand that protecting wetlands and reducing pollution requires active participation from farmers and ranchers.  They live closest to our land and water, and they have every reason to be good stewards of these resources.  Indeed, that is one reason why farmers in my State of Delaware celebrate their investments in, and successes of, no-till farming. While those farmers loved their land, traditional farming practices often ended up sending their best soils down a ditch or away with the breezes. Their land was eroding from under their feet. And then, science showed them a better way. They weren’t blinded by science. They were guided by it. Their commitment to the land and their livelihoods allowed them to embrace new practices that preserved their futures and a foundation of rural life and economy. We need that sort of agreement for clean water, along with a commitment to make this collective effort as predictable, simple and inexpensive as possible.

“No one was pleased with the confusion, uncertainty, and burdensome bureaucratic process resulting from the Supreme Court’s decisions in the 2001 SWANCC and the 2006 Rapanos cases. Without the Clean Water Rule, though, EPA and the Corps of Engineers would have to undertake a burdensome, time-consuming, expensive, unpredictable and confusing process to determine what is covered by the Clean Water Act and what is not. That is no way to do business, which is exactly why there was broad and diverse interest in having EPA and the Corps develop clear guidance, through regulation, to cut through the morass. That, I believe, is the motivation behind—and the result of—the Clean Water Rule.

“If I were to take on that very important task:

  • I would analyze all the peer-reviewed science I could get my hands on;
  • I would host hundreds of public meetings across the country;
  • I would ensure all who wish could have their say;
  • I’d review a million comments, if I had to; and
  • I would consult with the states, affected industries, farmers, fishermen and the best water minds around.

“And we all know, that’s exactly what went into developing the Clean Water Rule that we are discussing today. And, to tell you the truth, I don’t believe that I’ve ever met anyone who thinks the Rule is perfect for them or for our planet. It’s too hot for some; too cold for others—but it will protect the water we all need. I’d say, Goldilocks has arrived.

“This Rule has been a long time coming. It is well informed by science and experience. It treads a moderate line between the extreme desires of interests at both ends. And it is the product of a massive public engagement effort. So, I would ask this Administration and detractors of this approach to show us your work. Give the rest of us the same rigor, thoughtfulness, engagement, transparency, and science that underlies this effort—and show us—with that same degree of dedication to the task, to the law and to our health and environment—that you have something better to offer. Otherwise, I’m afraid you risk failing all of our people and spending an awful lot of time and taxpayer money in court. This rule has all the basis in law, technical merit, and science it needs.

“Thank you, Mr. Chairman. Mr. Chairman, I ask unanimous consent to insert into this hearing record letters I’ve received from The Southern Environmental Law Center and Clean Water Action supporting the Clean Water Rule.”