Letter to Hon. Michael Regan and Hon. Michael L. Connor, Administrator US Environmental Protection Agency and Assistant Secretary of the Army (Public Works), Democratic Letter Calling for Repeal of Trump Dirty Water Rule

Letter

February 7, 2022
The Honorable Michael Regan
Administrator
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, NW
Washington, DC 20460
The Honorable Michael L. Connor
Assistant Secretary of the Army (Civil Works)
Department of the Army
108 Army Pentagon
Washington, DC 20310-0108
RE: Docket ID No. EPA-HQ-OW-2021-0602, Revised Definition of "Waters of the United States"
Dear Administrator Regan and Assistant Secretary Connor:
On November 18, 2021, the U.S. Environmental Protection Agency (EPA) and the U.S.
Army Corps of Engineers (Corps) (together, the Agencies) released the pre-publication version of
the proposed rule redefining the scope of waters protected under the Clean Water Act. We write to
applaud the Agencies for taking this concrete and positive step toward restoring the strong clean
water protections that our constituents, and all Americans, depend on. Federal protections based on
sound science and consistent with the Clean Water Act are essential to ensuring clean water, which
is essential for our economy and a healthy environment.
This rulemaking is critical to protecting water quality across the nation and the furthering of
Congress's intent when it enacted the Clean Water Act. The Clean Water Act's sole objective is to
"restore and maintain the chemical, physical, and biological integrity of the Nation's waters."1 Yet
under the prior administration's Navigable Waters Protection Rule (NWPR), now invalidated by two
federal courts, streams and wetlands were ruled outside the protections of the Clean Water Act at
unprecedented levels.2
In addition to undercutting the Clean Water Act's objective, the nowinvalidated NWPR took us farther from providing clean safe water for American families,
1 33 U.S.C. § 1251(a).
2 EPA & Dep't of the Army, Memorandum for the Record re: Review of U.S. Army Corps of Engineers ORM2 Permit
and Jurisdictional Determination Data to Assess Effects of the Navigable Waters Protection Rule 2-3 (June 8, 2021),
https://perma.cc/Y66K-ESHC ("Memorandum for the Record").
Administrator Regan; Assistant Secretary Connor
February 7, 2022
Page 2
communities, and businesses. Protecting water quality and maintaining intact wetlands and
headwater streams, as contemplated by the administration's plan to first restore the pre-NWPR
regulatory framework, consistent both with the Clean Water Act and recent Supreme Court
decisions, and then to develop a lasting, more robust definition of "waters of the United States,"
also supports key congressional priorities and initiatives of the Biden administration.
The Infrastructure Investment and Jobs Act3 made the "single largest investment in water that the
federal government has ever made[,]" including $55 billion dedicated to expanding access to clean
water through initiatives such as replacement of lead service lines, measures to address PFAS
contamination, and the enhancement of wastewater infrastructure.4 The Act allocated another $47
billion for climate resilience, including measures to help communities prepare for worsening floods.5
Intact, healthy wetlands and headwater streams that absorb precipitation and floodwaters, reducing
the risk and severity of flooding, protect lives and livelihoods and promote the goals behind the
Clean Water Act, as well as the administration's overarching climate resilience goals.6
In addition to
serving as our most effective, natural guards against flooding, they serve as efficient, natural carbon
sinks, mitigating our emissions by sequestering carbon. Without strong federal clean water
protections, valuable wetlands and headwater streams, along with their pollution- and floodprevention functions, will be lost.
Strong federal clean water protections are also key to meeting the Biden administration's,7
and EPA's,8
commitments to environmental justice. As described above--and as publicly
acknowledged by the Agencies9--the NWPR has harmed waters across the United States. But this
harm does not fall equally on all populations. The effects of such a dramatic withdrawal of federal
clean water protections are disproportionately felt by low-income communities and communities of
color--in many cases, the communities least equipped to handle them. Only with strong federal
clean water protections, can the administration and EPA ensure that everyone--regardless of their
zip code--has access to clean, safe water.
As noted above, clean water protections are critical to protecting national, regional, and local
economies, including the businesses and industries that depend on the availability of clean water.
This is especially true for our nation's farmers for whom the availability of safe and reliable sources
of clean water is essential to safe and healthy crops and livestock. Your efforts to restore longstanding Clean Water Act protections over rivers, streams, and wetlands demonstrates that
3 P.L. 117-58
4 EPA Fact Sheet, https://www.epa.gov/infrastructure/fact-sheet-epa-bipartisan-infrastructure-law
5 NY Times, Infrastructure Bill Makes First Major U.S. Investment in Climate Resilience,
https://www.nytimes.com/2021/11/06/climate/infrastructure-bill-climate.html.
6 See, e.g., The White House, Fact Sheet: Biden Administration Roadmap to Build an Economy Resilient to Climate
Change Impacts, https://www.whitehouse.gov/briefing-room/statements-releases/2021/10/15/fact-sheet-bidenadministration-roadmap-to-build-an-economy-resilient-to-climate-change-impacts/
7 See Executive Order 13985, "Advancing Racial Equity and Support for Underserved Communities through the Federal
Government" (Jan. 20, 2021) https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executiveorder-advancing-racial-equity-and-support-for-underserved-communities-through-the-federal-government
8 Message from the Administrator (Apr. 7, 2021) https://www.epa.gov/sites/default/files/2021-04/documents/reganmessageoncommitmenttoenvironmentaljustice-april072021.pdf.
9 Decl. of Radhika Fox ¶ 8, Conservation Law Found. V. Regan, No. 1:20-cv-10820-DPW (D. Mass. June 9, 2021),
https://perma.cc/G8RL-L7S5 ("Fox Decl."); Decl. of Jaime A. Pinkham ¶ 8, Conservation Law Found. V. Regan, No.
1:20-cv-10820-DPW (D. Mass. June 9, 2021), https://perma.cc/NVB7-KLQC ("Pinkham Decl.").
Administrator Regan; Assistant Secretary Connor
February 7, 2022
Page 3
common-sense protections can, again, ensure both robust protection of the nation's waters and a
robust agricultural economy. For example, most ordinary agricultural activities do not require
permits under the Clean Water Act, which expressly excludes agricultural stormwater discharges and
irrigation return flows, in addition to other normal farming practices like building or maintaining
stock ponds or irrigation ditches, building farm roads, maintaining drainage ditches, and farming
itself. This was true prior to the NWPR and remains true in your proposed replacement of the
NWPR. In fact, the Corps estimates that less than one percent of the wetland area and about two
percent of the stream reaches for which it has issued Clean Water Act permits are accounted for by
agricultural discharges.10 When farming operations do need permits, expedited permits under
nationwide or general permit programs are often available.
In order to support the administration's and Congress's priorities, and to expeditiously
restore science-based protections to the nation's waters and wetlands, we urge the Agencies to move
quickly to finalize this proposal, and then turn to proposing a more protective, substantive definition
of "waters of the United States." Thank you for considering these comments--we look forward to
continuing to provide input as the Agencies pursue these important goals.
Sincerely,
Peter A. DeFazio
Chair
Committee on
Transportation and
Infrastructure
Grace F. Napolitano
Chair
Subcommittee on Water
Resources and
Environment
Donald S. Beyer, Jr.
Chair
Joint Economic Committee
Carolyn B. Maloney
Member of Congress
Eleanor Holmes Norton
Member of Congress
Anthony G. Brown
Member of Congress
Julia Brownley
Member of Congress
Salud Carbajal
Member of Congress
10 U.S. EPA and Dept. of the Army, Economic Analysis for the Proposed Revised Definition of "Waters of the United
States" 96-97 (Dec.14, 2018) (Table IV-2: Authorized impact area of CWA section 404 permits issued in 2011-2015, by
project type).
Rick Larsen
Member of Congress
Nanette Diaz Barragán
Member of Congress
Danny K. Davis
Member of Congress
Adriano Espaillat
Member of Congress
John P. Sarbanes
Member of Congress
Administrator Regan; Assistant Secretary Connor
February 7, 2022
Page 4
Jerry McNerney
Member of Congress
Stephen F. Lynch
Member of Congress
André Carson
Member of Congress
Jesús G. "Chuy" García
Member of Congress
Chellie Pingree
Member of Congress
Gwen Moore
Member of Congress
Henry C. "Hank" Johnson, Jr.
Member of Congress
Lucy McBath
Member of Congress
Nikema Williams
Member of Congress
Bobby L. Rush
Member of Congress
Marcy Kaptur
Member of Congress
Frederica Wilson
Member of Congress
Joe Neguse
Member of Congress
Suzanne Bonamici
Member of Congress
Jerrold Nadler
Member of Congress
John B. Larson
Member of Congress
C.A. Dutch Ruppersberger
Member of Congress
Rashida Tlaib
Member of Congress
Karen Bass
Member of Congress
Sara Jacobs
Member of Congress
Tom Suozzi
Member of Congress
Mark Pocan
Member of Congress
Adam Smith
Member of Congress
Betty McCollum
Member of Congress
Donald M. Payne, Jr.
Member of Congress
Raúl M. Grijalva
Member of Congress
Albio Sires
Member of Congress
Bonnie Watson Coleman
Member of Congress
Alan Lowenthal
Member of Congress
Maxine Waters
Member of Congress
Administrator Regan; Assistant Secretary Connor
February 7, 2022
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Jared Huffman
Member of Congress
Grace Meng
Member of Congress
Steve Cohen
Member of Congress
Paul D. Tonko
Member of Congress
Mondaire Jones
Member of Congress
Carolyn Bourdeaux
Member of Congress
Frank Pallone, Jr.
Member of Congress
Juan Vargas
Member of Congress
Dina Titus
Member of Congress
Peter Welch
Member of Congress
Mark Takano
Member of Congress
Tom Malinowski
Member of Congress
Linda T. Sánchez
Member of Congress
Marie Newman
Member of Congress
Lisa Blunt Rochester
Member of Congress
Bennie G. Thompson
Member of Congress
Tony Cárdenas
Member of Congress
Brenda L. Lawrence
Member of Congress
Alma S. Adams, Ph.D
Member of Congress
Barbara Lee
Member of Congress
Mike Quigley
Member of Congress
Sean Casten
Member of Congress
Ed Case
Member of Congress
Pramila Jayapal
Member of Congress
Chris Pappas
Member of Congress
Mark DeSaulnier
Member of Congress
Mary Gay Scanlon
Member of Congress
Debbie Dingell
Member of Congress
Shontel M. Brown
Member of Congress
Seth Moulton
Member of Congress
Administrator Regan; Assistant Secretary Connor
February 7, 2022
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Judy Chu
Member of Congress
Gerald E. Connolly
Member of Congress
Ritchie Torres
Member of Congress
Brian Higgins
Member of Congress
Dwight Evans
Member of Congress
Susan Wild
Member of Congress
Josh Gottheimer
Member of Congress
Jan Schakowsky
Member of Congress
Marilyn Strickland
Member of Congress
Earl Blumenauer
Member of Congress
Ro Khanna
Member of Congress
Pete Aguilar
Member of Congress
Colin Allred
Member of Congress
Bill Pascrell Jr.
Member of Congress
Yvette D. Clarke
Member of Congress
David N. Cicilline
Member of Congress
Anna G. Eshoo
Member of Congress
Al Lawson
Member of Congress
Brendan F. Boyle
Member of Congress
A. Donald McEachin
Member of Congress
John Yarmuth
Member of Congress
James P. McGovern
Member of Congress
Scott H. Peters
Member of Congress
James R. Langevin
Member of Congress
Jamie Raskin
Member of Congress
Jake Auchincloss
Member of Congress
Ted W. Lieu
Member of Congress
Nydia Velázquez
Member of Congress
Kathleen M. Rice
Member of Congress
Eddie Bernice Johnson
Member of Congress
Administrator Regan; Assistant Secretary Connor
February 7, 2022
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Sylvia R. Garcia
Member of Congress
Raja Krishnamoorthi
Member of Congress
Ann Kirkpatrick
Member of Congress
Deborah K. Ross
Member of Congress
Bill Foster
Member of Congress
Madeleine Dean
Member of Congress
Katie Porter
Member of Congress
Jamaal Bowman, Ed.D.
Member of Congress
David Trone
Member of Congress
Donald Norcross
Member of Congress
Robert C. "Bobby" Scott
Member of Congress
Lucille Roybal-Allard
Member of Congress
Mike Thompson
Member of Congress
Katherine Clark
Member of Congress
Melanie Stansbury
Member of Congress
Ruben Gallego
Member of Congress
Bradley S. Schneider
Member of Congress