[House Hearing, 118 Congress] [From the U.S. Government Publishing Office] SMALL BUSINESS PERSPECTIVES ON THE IMPACTS OF THE BIDEN ADMINISTRATION'S WATERS OF THE UNITED STATES (WOTUS) RULE ======================================================================= HEARING BEFORE THE COMMITTEE ON SMALL BUSINESS UNITED STATES HOUSE OF REPRESENTATIVES ONE HUNDRED EIGHTEENTH CONGRESS FIRST SESSION __________ HEARING HELD MARCH 8, 2023 __________ [GRAPHIC NOT AVAILABLE IN TIFF FORMAT] Small Business Committee Document Number 118-004 Available via the GPO Website: www.govinfo.gov __________ U.S. GOVERNMENT PUBLISHING OFFICE 51-287 WASHINGTON : 2023 ----------------------------------------------------------------------------------- HOUSE COMMITTEE ON SMALL BUSINESS ROGER WILLIAMS, Texas, Chairman BLAINE LUETKEMEYER, Missouri PETE STAUBER, Minnesota DAN MEUSER, Pennsylvania BETH VAN DUYNE, Texas MARIA SALAZAR, Florida TRACEY MANN, Kansas JACK ELLZEY, Texas MARC MOLINARO, New York MARK ALFORD, Missouri ELI CRANE, Arizona AARON BEAN, Florida WESLEY HUNT, Texas NICK LALOTA, New York NYDIA VELAZQUEZ, New York, Ranking Member JARED GOLDEN, Maine KWEISI MFUME, Maryland DEAN PHILLIPS, Minnesota GREG LANDSMAN, Ohio MORGAN MCGARVEY, Kentucky MARIE GLUESENKAMP PEREZ, Washington HILLARY SCHOLTEN, Michigan SHRI THANEDAR, Michigan JUDY CHU, California SHARICE DAVIDS, Kansas CHRIS PAPPAS, New Hampshire Ben Johnson, Majority Staff Director Melissa Jung, Minority Staff Director C O N T E N T S OPENING STATEMENTS Page Hon. Roger Williams.............................................. 1 Hon. Nydia Velazquez............................................. 2 WITNESSES Mr. Frank Murphy, Senior Vice President/CFO/COO, Wynne Jackson, Inc............................................................ 5 Ms. Katherine R. English, Owner, English Family Limited Partnership.................................................... 7 Mr. Rick Baumann, Founder, Murrells Inlet Seafood................ 9 APPENDIX Prepared Statements: Mr. Frank Murphy, Senior Vice President/CFO/COO, Wynne Jackson Inc................................................ 30 Ms. Katherine R. English, Owner, English Family Limited Partnership................................................ 44 Mr. Rick Baumann, Founder, Murrells Inlet Seafood............ 57 Questions for the Record: None. Answers for the Record: None. Additional Material for the Record: NFIB......................................................... 60 Statement of Clean Water-Dependent Businesses................ 63 U.S. Chamber of Commerce..................................... 78 SMALL BUSINESS PERSPECTIVES ON THE IMPACTS OF THE BIDEN ADMINISTRATION'S WATERS OF THE UNITED STATES (WOTUS) RULE ---------- WEDNESDAY, MARCH 8, 2023 House of Representatives, Committee on Small Business, Washington, DC. The Committee met, pursuant to call, at 2:10 p.m., in Room 2360, Rayburn House Office Building, Hon. Roger Williams [chairman of the Committee] presiding. Present: Representatives Williams, Luetkemeyer, Alford, Stauber, Crane, Meuser, Bean, Van Duyne, Ellzey, Mann, LaLota, Velazquez, Scholten, Thanedat, Davids, McGarvey, and Gluesenkamp Perez. Chairman WILLIAMS. Before we get started, I want to ask Mr. Mann to lead us in prayer. Please stand. All. I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one nation, under God, indivisible, with liberty and justice for all. Mr. MANN. Bow your heads with me. Thank you, Dear God, that we get to live in the greatest country in the history in the world. Thank you for all the small businesses that provide work and goods and services all over our great land. We pray for the ability to distinguish between right and wrong. And give us wisdom and continue to bless our great country. In the name of Jesus. Amen. Chairman WILLIAMS. Good afternoon, everyone. I now call the Committee on Small Business to order. I will turn my mike on. Without objection, the Chair is authorized to declare a recess of the Committee at any time. The Committee is here today to hear testimony about the harmful impact of the Biden administration's Waters of the United States Rule on small businesses. I now recognize myself for my opening statement. And first I want to thank our witnesses for joining us today. I understand that all of you have traveled a long way to be here, and we appreciate it. I know how hard it is to step away from your day-to-day operations, and I am extremely grateful that you chose to give us your time today. Since President Biden was sworn into office, the regulatory actions of this administration has cost the private sector nearly $360 billion in compliance costs, an estimated 220 million hours in our new paperwork requirements to meet those compliance costs. Later this month, the Biden administration will increase these costs by finalizing the new Waters of the United States Rule. For any business, certainty is key, and enforcing the rule is leaving many people in the dark on if they will be in compliance with the new regulations. For the last decade, small businesses have hoped for clarity around what is the definition of a waterway that is subject to regulations by the federal government. Unfortunately, this rule fails to resolve these issues and will leave business owners wondering if they need to get permission from the federal government before they make even minor adjustments on their private property. There are laws on the books that are supposed to protect small businesses from regulatory overreach from the federal government. Specifically, the Regulatory Flexibility Act is in place to ensure agencies are conducting analysis on how their actions will affect small entities and propose alternatives. However, the EPA certified that this rule would not have any impact on small businesses and, therefore, unilaterally decided that they do not need to conduct any further analysis on the rule. According to the SBA's Office of Advocacy, which is charged with speaking out against overly burdensome regulations, this determination by the EPA was not based on any factual analysis. Today we listen to the small businesses whose opinions have been disregarded by agencies far too long, and we will hear how this rule will have a significant impact on many types of small businesses, such as farming, ranching, mining, and real estate development, just to name a few. The past several years have caused tremendous hardship for Main Street America. Whether it be the COVID-19 pandemic, out- of-control inflation, broken supply chains, high interest rates, or a national labor shortage, the federal government should not be giving small businesses yet another challenge to overcome. I want to thank you all again for being here with us today, and I'm looking forward to today's conversation. And lastly, without objection, I would like to submit letters for the record from the National Federation of Independent Business and the U.S. Chamber of Commerce. So with that, I will yield to our distinguished and my friend the Ranking Member from New York, Ms. Velazquez. Ms. VELAZQUEZ. Thank you, Mr. Chairman. I'd like to welcome all of the witnesses. Thank you for being here. Clean water is an essential building block of any functioning economy. We depend on it for drinking, bathing, cooking, farming, fishing, manufacturing, tourism, recreation, and many other activities. Without clean water, our health, environment, and economy will be at serious risk. For the past 50 years, the Clean Water Act has safeguarded our rivers, streams, and wetlands from pollution and degradation. Since its inception, it has prevented billions of pounds of pollutants from entering our waters and restored thousands of miles of impaired rivers and streams. This environmental benefit has saved billions of dollars in health care costs by reducing water-borne diseases and supported millions of jobs in industries that rely on clean water. Whether it is our growing craft beer industry, which brings investment to communities across the country, or our behemoth outdoor recreation economy, which provides $862 billion in economic output, robust federal protection for clean water is a prerequisite for the success of a variety of industries. Unfortunately, the 2006 Supreme Court ruling in the Rapanos case upended longstanding protections for many of our nation's precious rivers, streams, and wetlands. As a result, many stakeholders have faced confusion and uncertainty as industries seeking to pollute have attacked the scope of the Clean Water Act. In 2020, the Trump administration imposed the Navigable Waters Protection Rule, which significantly limited federal protection for clean water by excluding safeguards for many wetlands and streams. This rule allowed industries to pollute our waters, and was shifting the cost of pollution to the families, businesses, and communities downstream. Fortunately, this rule was struck down by courts as it largely failed to recognize the scientific evidence on the interconnectedness of our water systems. As a result, the Biden administration has worked to revise the WOTUS rule and provide greater clarity to stakeholders while codifying important exclusions for prior converted cropland, ditches, and artificial ponds. Over the past two years, the EPA has conducted extensive meetings with stakeholders, including many small businesses, and I believe the final product adequately reflects that. This rule demonstrates a clear middle ground between the 2015 clean water rule and the 2020 rule. It makes clear that we cannot sacrifice the economy for environmental protection, nor sacrifice the environment for economic growth. As you will hear from our witness today, those two things go hand in hand. Nobody here wants small businesses to deal with excessive, burdensome regulations. However, we must recognize that many regulations, especially those safeguarding our waters, serve an essential purpose in protecting families, communities, and entrepreneurs. In fact, a national survey of small businesses found that 80 percent of small business owners favor federal rules to protect upstream headwaters and wetland. To that end, I want to take this opportunity to announce my opposition to the resolution of this approval filed by Republicans under the Congressional Review Act. Not only will this resolution not achieve the outcome Republicans seek, but it could also actively harm the exclusions they are seeking to protect. It only adds to the confusion and uncertainty that stakeholders are currently experiencing. I advise my colleagues to carefully consider the costs that blanket deregulation could have on businesses that rely on clean water to function. With that, Mr. Chair, I would like to ask unanimous consent that this letter in support of the new revised definition of Waters of the U.S., signed by over 400 businesses that are dependent on clean water, be submitted to the record. Chairman WILLIAMS. So ordered. Ms. VELAZQUEZ. Thank you. I yield back. Chairman WILLIAMS. I will now introduce our witnesses. It is my privilege to introduce a fellow Texan as our first witness, Mr. Frank Murphy, for today's hearing. Mr. Murphy is the Senior Vice President and CFO and COO of Wynne/Jackson, Inc., a real estate development firm and small business based in Dallas that employs eight people. Starting in the early 1970s, by its name sake, Clyde C. Jackson and Toddie L. Wynne, Wynne/Jackson now has a presence throughout Texas, Oklahoma, and New Mexico. And since joining the company in 1985, Mr. Murphy has played a role in over $2 billion worth of projects encompassing everything from apartments to retail space to golf courses, hotels, marinas, and storage facilities. These projects not only have helped spur economic development in countless communities but have also served as the actual foundations for where families live, work, and make lasting memories. In addition to real estate development, Wynne/Jackson has also a long history of participating in philanthropic initiatives, including religious education centers, institutes promoting the responsible use of land, and several international projects. Mr. Murphy's experience in all types of development make him exceptionally qualified to speak about the regulatory burdens facing businesses, such as Wynne/Jackson. He understands the real-world implications of what happens when vital projects that would otherwise benefit whole communities cannot be started due to bureaucratic uncertainty and red tape. So, Mr. Murphy, thank you for joining the Committee today, and I look forward to today's conversation. I now yield my time to Mr. Bean to introduce our next witness. Mr. BEAN. A very good afternoon, Mr. Chairman, to you and the Committee Members, everybody here, small business family. What an honor it is to introduce a fellow Floridian, Ms. Katherine English, for today's hearing. A native of Southwest Florida, Ms. English has worked at the Pavese Law Firm since 1994 and became partner in the year 2000. Her law practice focuses on agriculture, environmental, and land use law, which should be no surprise considering her primary occupation is overseeing her family farm, which has been in the English family for over 100 years. It is no exaggeration to say that Ms. English is one of the most qualified people in America to speak with us today about the impact that cumbersome and unclear regulations have on family farms, such as her own. Her legal work has been recognized by her being selected as one of the--you ready for this, Committee Members?--best lawyers in America for 2021 due to her expertise in land use and zoning law. And in addition to family farming and law, it also should be no surprise to any Committee Member here that Ms. English is a community superstar because she has served just so many: Chair of the Farm Bureau Association, the Natural Resource Advisory Committee, a past Chair of the American Farm Bureau of Federation, National Issue Advisory Committee, on Water and Water Quality. And yes, the United Way is blessed with her presence on the Board of Directors for Lee, Hendry, and Glades Counties. Ms. English, welcome to Washington, D.C., the House of Representatives, and to the Small Business Committee. Thank you for joining us, and I'm looking forward to today's conversation. Chairman WILLIAMS. Thank you very much. And I now recognize the Ranking Member, Ms. Velazquez, to introduce her witness for today's hearing. Ms. VELAZQUEZ. Thank you, Mr. Chairman. Our final witness today is Mr. Rick Baumann, a business leader, veteran, and environmental advocate from Murrells Inlet, South Carolina. He was born in New York City in 1948 and went on to enlist in the military in 1966. During his military service he studied at American University. After his honorable discharge in 1969, he founded the business he continues to run today, Murrells Inlet Seafood. In 2012, he founded a non-profit, Trees For Tomorrow. In 2019, he became a Riley Fellow at Furman University. Throughout his career he has been a tireless advocate for wildlife, the environment, and clean water. Thank you for being here, and you are welcome. I yield back. Chairman WILLIAMS. Thank you, Ranking Member Velazquez. And I want to say today we appreciate all of you being here today, as I said earlier. Before recognizing the witnesses, I would like to remind them that their oral testimony is restricted to five minutes in length. If you see the light in front of you turn red in front of you, it means your five minutes has concluded, and you should wrap it up as quickly as possible. I now recognize Mr. Murphy for his 5-minute opening remarks. STATEMENTS OF FRANK MURPHY, CHAIRMAN OF THE ENVIRONMENTAL ISSUES COMMITTEE OF THE NATIONAL ASSOCIATION OF HOME BUILDERS; KATHERINE ENGLISH, ON BEHALF OF THE AMERICAN FARM BUREAU FEDERATION; AND RICK BAUMANN. FOUNDER, MURRELLS INLET SEAFOOD, BOARD OF DIRECTORS, SOUTH CAROLINA SMALL BUSINESS CHAMBER OF COMMERCE STATEMENT OF FRANK MURPHY Mr. MURPHY. Mr. Chairman, thank you for the kind introduction, sir. Chairman Williams, Ranking Member Velazquez, and Members of the Committee, on behalf of more than 140,000 Members of the National Association of Home Builders, I appreciate the opportunity to testify today on the 2023 WOTUS rule's impacts on small businesses. My name is Frank Murphy, and I am the Chief Operating Officer at Wynne/Jackson, a small business in Dallas, Texas, with eight employees. I have been employed in the real estate industry for nearly 40 years and am currently honored to serve as the NAHB's Chairman of its Environmental Issues Committee. As to the new WOTUS Rule, it is difficult to overstate the impacts of regulations on small businesses and our ability to provide affordable housing. An NAHB study found that governmental regulations already account for up to 25 percent of the price of a new single family home and over 40 percent of multi-family development. So for every $1,000 of increase in a medium-priced home, it will price out over of 117,000 households from being able to afford such home. EPA has indicated that the new 2023 rule will not have a significant economic impact on small entities. In contrast, the Small Business Administration determined just the exact opposite, acknowledging that the rule would have significant direct impacts on a substantial number of small entities. As an example of this, the 2023 rule inappropriately expands federal authority by relying on undefined regulatory terms and concepts, such as relatively permanent, material influence and its reliance on a more stringent definition and nexus test to assert federal control over otherwise isolated features. This rule increases federal control in wetlands permitting requirements over private property and, thus, increases delays to small businesses awaiting jurisdictional determinations. Ironically, the agencies rushed to finalize this rule before the U.S. Supreme Court issues its Sackett v. EPA, which focuses on the legality of the significant nexus test. As to issues with the new rule itself, I have three main concerns. First, the rule's heavy reliance on the usage of the significant nexus test will cause delays to small businesses awaiting jurisdictional determinations. NAHB Members already report waiting for a year or more for the Corps to to complete such determinations today. Further, under the significant nexus test, the rule authorizes the agencies to base determinations of WOTUS on my property by considering isolated wetlands and tributaries outside the boundaries of my land. Such an approach is just not feasible in practice because I can normally not obtain legal access to the adjoining properties in order to conduct such studies and determinations. I can't do it. I cannot afford the cost nor the time to hire third-party consultants to analyze these waters similarly situated in the region to determine if my property collectively has an impact on the Waters of the U.S. as navigable waters out here. Overall, as a result of the complexity and delays inherent in the significant nexus test, many small businesses will simply give up. Instead, they will opt for preliminary jurisdiction or determination, which allows the agencies to assume a feature is WOTUS. This would then allow a property owner to advance directly to the permitting stages. The usual result of this is that more land will then be classified as WOTUS and reduce the amount of developable land associated therewith. Second, the rule includes many undefined concepts and lacks clear guidance. Instead, small businesses and their consultants must interpret conflicts within the final rule's preamble, regulatory text, and scientific technical documents. Such an approach by the agencies ensures confusion and uncertainty for small businesses seeking to comply with the law. Third, the agencies have cast doubt by stating that determinations issued under the Navigable Waters Protection Rule are no longer valued. As a result, land owners are forced to start over if they want a valid determination. These determinations are supposed to be valid for five years. Further, with the final rule's preamble, the agencies state that even when prior determination found that no permit was required, land owners could now risk violations of the law if they move ahead with a project without obtaining a new determination. This is a clear example of moving the goalposts on small businesses. In closing, I want to thank the Members of the T and I Committee for reporting out the CRA to rescind the Biden WOTUS rule last week. I look forward to a swift passage on the House floor. Until the CRA is passed or enacted, I encourage Congress to direct the agencies to delay this rule until the Supreme Court decides Sackett. NAHB believes there should be no WOTUS before SCOTUS. Thank you for the opportunity, Mr. Chairman and Committee Members, to testify before you, and I look forward to your questions. Chairman WILLIAMS. Thank you, Mr. Murphy. And now I recognize Ms. English for her 5-minute opening remarks. STATEMENT OF KATHERINE ENGLISH Ms. ENGLISH. Thank you, sir. Chairman Williams and Ranking Member Velazquez, thank you for the opportunity to testify today. My name is Katherine English, and I am a farmer, rancher, small business owner, and environmental lawyer from Fort Myers, Florida. It is an honor today for me to represent the American Farm Bureau Federation, and I speak on behalf of the thousands of hardworking farmers and ranchers who produce the food, fiber, and renewable fuel that our nation and the world depend upon. Farmers and ranchers' livelihoods depend on healthy soil and clean water. We support the Clean Water Act and its goals. What we cannot support is a Waters of the United States rule that is so ambiguous, it creates unmanageable risk and confusion for farmers, farmers who struggled with uncertainty for decades with near constant rulemaking in litigation regarding WOTUS. A workable definition of WOTUS is critically important to our Members, and they are extremely disappointed that the Biden administration's new WOTUS rules fail to provide that. This new rule greatly expands the federal government's reach over private property, asserting jurisdiction over ephemeral drainages, ditches, swales, and low spots in farm fields and pastures. The significant nexus test allows the agencies to aggregate and regulate waters that would not otherwise be subject to permit, relying on vague language vulnerable to subjective interpretation to do so. It is impossible with this new rule for any farmer or rancher to know whether their irrigation and drainage infrastructure and fields are jurisdictional waters requiring Clean Water Act permits. Considering these features as jurisdictional waters risk federal regulation of everyday farm and ranch activities that move dirt and apply products to the land, such as planting, cultivating, fence building, or ditch maintenance. Doing work in or near these features without a jurisdictional determination or a permit risks triggering the Clean Water Act's harsh civil and even harsher criminal penalties. This is the experience that farmers will have with this new definition of WOTUS. Before the 2020 WOTUS rule went into effect, I worked with a Florida farmer seeking authorization to insert earth blocks totaling less than a half an acre of fill into existing upland cut ditches on a farm that had been in operation for decades. The ditch blocks were needed to hydrate an existing wetland mitigation area. The farmer waited for more than a year for a nationwide permit only to be told an archeological study of the farm was needed to comply with the federal historical preservation requirements for the permit, even though the property had an archeological study that had previously been completed, reviewed, and accepted by the State's historical preservation agency. The Army Corps of Engineers' archeologist decided the existing study was insufficient and wanted a new study that would cost tens of thousands of dollars and months of delays to resolve his concerns. Shortly thereafter, the 2020 rule went into effect, and the Corps' staff determined that the project no longer required a permit since the proposed work affected only upland cut ditches upstream of the project's State permanent outfall structure. Also frustrating to our Members is the agency's claim that the costs associated with this rule are de minimis. The only way this conclusion is possible is to ignore all the costs that farmers incur to comply with the rule. The agencies ignore the cost of the team of experts required to successfully navigate the permitting process, biologists, hydrogeologists, attorneys, and engineers. The agencies also ignore the cost of mitigating impacts and the lost opportunity cost caused by years of delay. These permits are beyond the means of many farmers who already operate on thin margins and discourage the kinds of agricultural innovation we need to remain competitive and sustainable. A key factor in the WOTUS debate centers around the Supreme Court's consideration of the highly consequential Sackett v. EPA case. This case should provide clarity regarding the appropriate scope of a WOTUS definition. By finalizing this rule before the Supreme Court issues its decision, the agencies reinforce the perception that they want this rule in place before the court clarifies the significant nexus test. Farmers and ranchers are extremely frustrated that our concerns were ignored in the final rule, as were our efforts at participation in the process. This new rule creates confusion, more legal and financial risk, discouraging the entrepreneurial spirit that small family farms and ranchers rely on to survive. This rule may well result in irreparable harm to our rural communities who rely on these small businesses who are being disproportionately burdened by this overreaching rule. Thank you for the opportunity to share our perspective on this important issue, and I look forward to taking your questions. Chairman WILLIAMS. Thank you, Ms. English. And next I want to recognize Mr. Baumann for his 5-minute opening remarks. STATEMENT OF RICK BAUMANN Mr. BAUMANN. Thank you, Mr. Chairman. Before I push my button, I just want to compliment the previous speakers, and I respect their views very much, and I understand them. Here is my statement: Good afternoon, Chairman Williams, Ms. Velazquez, and distinguished Committee Members. I am Rick Baumann from the fishing village of Murrells Inlet in the seafood capital of South Carolina. Thank you for this opportunity to speak to you today. I would like to begin with a very short dedication to the testimony I am about to give to my late friend and mentor Dr. Ian W. Marceau, Ph.D. Ian was from Australia, but he spent many years of his life in the United States, both in Washington and as an advisor to the Governor of New York before he retired to South Carolina. In his lifetime, Mr. Marceau did a lot of great work, both for the environment and agriculture. He had a Ph.D. on either side there. All over the world he worked, but his proudest days were spent here in D.C. helping to write and negotiate the Clean Water Act into law to fulfill President Nixon's vision of clean air and water for all Americans. During our many days spent together enjoying the outdoors, Ian and I talked a lot about clean water. He tempered his pride about the Clean Water Act while lamenting the fact that so much more had been learned since the Act was written that desperately needed to be addressed. So many new chemicals of convenience had come into existence: Pesticides and fertilizers and so many others, and we were just beginning to understand their negative impacts on land, water, wildlife, and human beings. We were starting to learn the profound impacts of non-point source pollution, how toxic man-made compounds and chemicals spread on the land were ending up in the wetlands, streams, and rivers, and how they were being found in our drinking water. In 2004, when I was appointed to my county's Stormwater Advisory Committee, I was fortunate to have two geniuses advising me at every meeting, Dr. Marceau and Dr. Kraner, Ph.D., formerly of Brookhaven National Laboratory on Long Island. And together, using only the facts, we were easily able to make a very strong case that our fast-developing area was threatening our small business economy by failing to address non-point source pollution and its effects on that economy, which so specifically require clean water to survive and thrive. As those meetings progressed, we received a great deal of pushback from the exact name special interest and industries that we've heard from today. I have often seen this scenario play out in many areas of the country. When I was young, I worked on a Black Angus farm in Upstate New York, and I have been a waterfowl hunting guide in many areas of the country, in the agricultural Eastern Shore of Maryland to the Rice Belt in Texas and everywhere in between. I am keenly aware of the challenges facing today's farmers. They are immense. And I am a Member of the South Carolina Farm Bureau. Like farmers, I am in the business of feeding people, too. Since 1967, I have fed many millions of folks with their seafood dinners, but I am not just speaking for the seafood industry. I am speaking for all the small businesses, which exist in the vicinity of watersheds all across America. When we think of a recreational and commercial fishery, we need to realize that there is a very large group of small businesses which are intertwined with that fishery. We have ice companies, boat mechanics, dry docks, and marinas. Plus, there are assorted rental businesses. We have boat companies, fiberglass works, tour guides, bait shops, bait catchers, rig and tackle shops, crabbers, oystermen, clammers, wholesale seafood processors, charter fishing guides, commercial fishermen, retail stores like mine. In the secondary market are the restaurants that purvey local seafood and all of their employees, right down to the dishwashers. Then you have the gift shops, cafes, breakfast houses, the Airbnb's, rental cottages and condos, convenience stores and more. Also, in the secondary market requiring clean water are the campers, hunters, birders, and recreational anglers who are part of the $887 billion outdoor recreation economy. On and on I could go with examples. I can assure you folks, without a doubt, that anywhere in our great country where there is navigable water, there is another plethora of small businesses which relies on clean water for their businesses to thrive. I can also assure you that wherever there is navigable water, there are wetlands, sometimes isolated. There are ditches, creeks, and ephemeral streams that flow into those navigable waters at various times, if not perpetually. The credible science speaks much louder than the fallacious disinformation. These waters absolutely need CWA protection if we are to ensure President Nixon's vision of clean water, land, and air for all Americans. Thank you so much for your kind attention. Chairman WILLIAMS. Well, I want to thank all of you. You all hit your number right on, all three of you. You don't see that too often. Thank you. We will now move to the Member questions and the 5-minute rule. And I now recognize myself for five minutes. As a business owner of over 50 years, I know what happens when uncertainty is added to a business, and I still own my businesses. Some of you might not know this, but I operate a small calf/cow operation in Texas, Angus. And I remember when this rule initially came out under the Obama administration, people in the industry were asking me if a ditch on their property would now be subject to EPA and regulations. So Ms. English, you have been in the business for long enough to know the legal battles with the different iterations of this rule. So my question is: Can you describe how this new WOTUS rule adds more uncertainty, and could it be even worse than the Obama era rule? Ms. ENGLISH. Thank you, Mr. Chairman. Yes, I think I can help with that. The biggest problem that we have with this rule is its uncertainty. The Obama rule was clear about what it covered, which was essentially everything even though that is not what was contemplated under the Clean Water Act. Specifically, 101(b) of the Clean Water Act talks about the fact that this is an exercise in cooperative federalism where some waters are protected by the federal government for those that are important to them, and the others can be regulated by the States. This rule is simply unknowable. Unless you have hired a lawyer, a biologist, an engineer, and, in some instances, a geologist, you have no idea of knowing what your jurisdiction is, and you won't know then until you actually file an authorized jurisdictional determination with the Army Corps of Engineers. Chairman WILLIAMS. Thank you for that. Last week we held a hearing with small business owners from a wide variety of industries, from different corners of the country, and every one of our witnesses discussed how inflation is affecting their operations. Something that I am very concerned about is how this rule could add fuel to the fire and make inflation even worse for all Americans. Many business owners have no choice but to pass the high cost of compliance with new rules like WOTUS on to their consumers, but in many cases you can't do that. So Mr. Murphy, in your testimony, you discussed how this new rule could force you to hire more environmental compliance officers, and it could lead to permitting delays for projects. So the question would be: Can you discuss your business' ability to absorb these costs and some of the changes that you are considering making in order to comply with the confusing new EPA guidelines? Mr. MURPHY. That is a very detailed question. So I am going to try to keep it very simple in deference to time, Mr. Chairman. Yes. First off, it will have significant impact because we have to go through the additional determinations on already existing jurisdictional JDs to have them redone and validated. We presently have projects that are in the development pipeline that have existing JDs. We have to stop the process now, as we are going through the engineering, construction, and permitting process, while we re-determine under the new WOTUS rules whether those projects are subject to WOTUS or not. We don't know. Now, consultants may not know it either, based upon some of the criteria set forth. So what do we do? We stop; we pause; we reconsider, which has the impact of delaying projects. We are already facing inflationary issues, as you have already addressed here, which leads to compounding of affordability, housing shortages, and so forth. So by delaying this while we reconsider the impacts associated, and we receive new JDs, we are going to shut projects down, and that will lead directly to increased housing costs, increased lack of affordability, and shortages of homes and lots. Chairman WILLIAMS. And jobs, too. Mr. MURPHY. And jobs, too, sir, yes. Good point. Chairman WILLIAMS. Thank you. There are always laws in the books that are supposed to protect small businesses from some of the worst regulations coming out of Washington. Unfortunately, it appears many of these required checks against regulatory overreach are not being taken seriously by the agencies, and I am proud to say this Committee sent out 25 letters seeking more information on how they are complying with the laws in the books. We want to know how they are helping us. Now, Ms. English, I want to ask you about any suggestions you might have to force these agencies that we are talking about to seriously consider small business interests as they make these large rules. Ms. ENGLISH. The Small Business Administration has already sent a scathing letter exercising its concern with EPA about their failure to comply with your rules. I would suggest to you that, perhaps, at this point, the most effective tool is the pocketbook. I would consider removing authorization for expending funds for enforcement of this rule or, in the alternative, remove appropriations that were intended for the enforcement of this rule. I am not sure that anything else would help. Chairman WILLIAMS. Thank you. With that, I yield my time back. And I now recognize the Ranking Member, Ms. Velazquez, for 5 minutes of questions. Ms. VELAZQUEZ. Thank you. This question I will ask each Member of the panel to please answer yes or no. Tomorrow the House is scheduled to vote on a CRA resolution to block implementation of the 2023 revised WOTUS rule. Do you believe that enactment of this CRA will reinstate the Trump administration's Navigable Waters Protection Rule that was vacated by a federal district court in 2021? Mr. MURPHY. I assume you want me to answer first. I hate to say yes but good chance, yes. Ms. VELAZQUEZ. Ms. English? Ms. ENGLISH. The House resolution will not re-implement the notice of the Trump era rule. Ms. VELAZQUEZ. Mr. Baumann? Mr. BAUMANN. As I understand it, the new rule, the Biden rule will pretty much mirror what was on the books prior to 2015. What I would like to point out is that from 1986 until 2015, there were no lawsuits. There was no arguing. There was no hearing. Everybody got along. I don't understand what the big deal is, but I am being enlightened somewhat. Ms. VELAZQUEZ. When the court vacated the Trump rule in 2021, the federal agencies reverted back to using the pre-2015 rule approved by former President Reagan and later defined by President Bush. If this resolution is enacted it will not only do away with the Biden rule, it will also prevent agencies from interpreting any new rule that is substantially the same meaning that this will likely tie the hands of the Corps and EPA from further clarifying the scope of WOTUS unless Congress enacts some additional law. Do you believe that indefinitely tying the hands of the agencies to further clarify the WOTUS issue is good for small businesses' clarity and certainty? Mr. Murphy? Mr. MURPHY. We need clarity at the end of the day. The new Biden rule basically expands the definition of significant nexus test, which is much more cumbersome than the pre-2015 rule. Do I believe it should bind the hands of the Corps ultimately? No. But we need some guidance by which to establish the certainty of the rule and not be subject to continual changes every time a new administration comes in and takes issues with the existing rule. Ms. VELAZQUEZ. Ms. English, do you believe that indefinitely tying the hands of the agencies to further clarify the WOTUS issue is good for small businesses' clarity and certainty? Ms. ENGLISH. I don't believe that the resolution will tie the hands of the Corps and EPA. Ms. VELAZQUEZ. Okay. Ms. ENGLISH. Frequently, in dealing with the Corps staff now, I am struggling with being back in the 1980s. Ms. VELAZQUEZ. Thank you. And Mr. Baumann? Mr. BAUMANN. You know, lawyerese is not my forte, but I am concerned about the drinking water and the fishing water and so forth for my grandchildren and great grandchildren. Ms. VELAZQUEZ. Thank you. Thank you, Mr. Baumann. I would like to ask another follow-up question. Under the Trump WOTUS rule, EPA estimated 50 percent of wetlands and up to 70 percent of rivers, lakes, and streams lost protection under the Clean Water Act. How did this impact your business? Mr. BAUMANN. Honestly, until it was struck down, it didn't have a profound impact, but it had a lot of impact from Mr. Murphy's business in my area because so much land that was under water, so much land that was swampland was filled and built with very small lots and houses close together, taking natural ground that absorbs the water and looks after our drinking water and absorbs rainwater, trees, and so forth that sequester rainwater and pollutants. Okay? These were--clearcut houses were built, and, you know, the swamps were filled. And when it rained, when we had a tropical storm or a hurricane or even just a hard summer thunderstorm, we had profound runoff and flooding. Ms. VELAZQUEZ. Thank you. I yield back. Chairman WILLIAMS. Thank you, Ms. Velazquez. I now recognize Mr. Luetkemeyer. Before I do that, reminding myself and all of you, make sure your button is on when you speak. Okay? Mr. Luetkemeyer from Missouri. Mr. LUETKEMEYER. Thank you, Mr. Chairman. And, yes, I have heard from a lot of my constituents from Missouri with regards to the Navigable Waters Protection Rule of the Trump administration, and they believed that it gave certainty and predictable, at least more than what we have now. Ms. English, could you compare that rule with what is being proposed today? Just give me three or four differences that you can point to that are problematic. Ms. ENGLISH. Certainly. Under the Navigable Waters Protection Rule, it was clear that upland cut ditches were not included in the rule in places where a permanent outfall structure and a surface water management system was authorized behind that structure. It was clear that there was no intention for the Clean Water Act to apply to that; that that was an area that had already been permitted and maintenance in that area, and that is the example that I gave you specifically. Under the present rule, the proposed rule, all of that would be jurisdictional, and I would be going through the entire process. What I think is important to remember is the uncertainty of this rule drives the fact that I can't ever look at something with certainty and tell my family or tell a client or tell a friend that I know for certain they are not dealing with Waters of the United States. The benefit of the Navigable Waters Protection Rule was I could answer that question straight. Mr. LUETKEMEYER. One of the things that is concerning to me is I come from Missouri, and the Farm Bureau there in Missouri says that this rule would affect 99.9 percent of the land in our State. That means the federal government has control over whatever you want to do on 99.9 percent of the land in my State. That is unconscionable. That can't happen. You know, I understand. I am not against clean water. I am not against clear air, but there is a limit to the Government's overreach and authority to be able to come out and control what goes on. You know, Mr. Murphy, you talked about the cost. Have you looked at this rule itself and what the average cost per home that you would build would be incurred by you as a builder or the person who purchased the home from you? What percentage of the cost would increase as a result of that? Mr. MURPHY. I can't give you the percentage or the cost per individual home because it varies based upon the individual projects, but I can tell you what we looked at, potential price impact or cost impact in total. Mr. LUETKEMEYER. Okay. Mr. MURPHY. So for existing jurisdictions that we have, we have to go redo those, and the cost of a new jurisdictional study itself is usually $10 to $20,000 just for the study. Then if we have to go through the individual permitting process, not even talking about time delays but the individual permitting process is usually 50 to 75,000. Then if we wish to proceed with development impacting the Waters of the U.S. with the mitigation, mitigation costs on two projects we studied recently of our own could be upwards of $600 to $1.5 million per project. Mr. LUETKEMEYER. That is per home? Mr. MURPHY. Per project. Mr. LUETKEMEYER. Per project. Mr. MURPHY. One of these is a 500-acre project, and the other one is about a 300-acre project. So a significant cost. So we then have to take that cost, mark it up by interest and debt, carry cost, and associated delay factors, and then pass it through. Ultimately, what we are limited to passing through cost-wise is what the market will accept. We can't just unilaterally increase the price of the lot, increase the price of the home $10,000, because it may not be marketable. If that is the case, we have to simply shut down and stop development on that project. Mr. LUETKEMEYER. Wow! That is mind-blowing. Ms. English, you talked a little bit about the cost to farmers to be able to comply. You know, Mr. Murphy just blew a hole in all of the trying to build new homes here and develop a whole new subdivision. If a farmer is wanting to do something on his ground or they come out and say that there is some navigable waters on his property and he has to comply, it would seem to me that it would hurt the value of his property, hurt his ability to market and sell that property. Is that a fair assessment? Ms. ENGLISH. That is absolutely the case. I'm sorry. That is absolutely the case. If you fail to resolve that issue, it will affect the value of your property. Mr. LUETKEMEYER. So what we are looking at here is devaluing farmers' property, raising the cost to individuals who want to purchase a home or rent an apartment from a multi- family unit development perhaps out of their price range. Right now we already have a problem with affordability. I mean, I sat on another committee and that is all we talk about all the time is the unaffordability of housing today. And now we are going to add this as one more cost to drive people away from being able to buy their dream home. Thank you so much for your testimony today. Mr. Chairman, I yield back the balance of my time. Chairman WILLIAMS. Thank you very much. And next I would like to recognize Congressman Thanedar of Michigan for five minutes. Mr. THANEDAR. Chairman Williams and Ranking Member Velazquez, thank you for convening this hearing on the Waters of the United States. I want to thank everyone who came to testify before our Committee. Your firsthand knowledge of our country's environment enables our body to contribute more to the work we do in Congress. There is no doubt of the importance of Clean Water Act. In Michigan, our citizens rely on clean water to protect public health. It has been critical to the significant progress we have made as a State in improving the quality and health of our rivers, streams, lakes, wetlands, and watersheds. Furthermore, clean water is a basic need for families and businesses across the United States, particularly in Michigan. The Great Lakes support over 1.3 million jobs generating 82 billion in wages annually. It is critical to discuss the importance of Great Lakes as a water source and the worlds most extensive fresh water system, which extends to the Detroit River. As a result, it is vital to ensure the safety and quality of waters that are the lifeblood of our district. Any repeal of the Clean Water Act would represent a step back in protecting our water resources. Wetlands and other critical habitats could be destroyed, affecting human health and the environment. This is a disaster for small businesses, as 80 percent of owners support federal regulations to protect upstream headwaters and wetlands. Our companies rely on the Clean Water Act. Now, I do appreciate your viewpoints, every one of you. I am a former small business owner, and we have small businesses on both sides of this debate. Quite frankly, I am sympathetic to potential regulatory burden, but I am also struggling to see how we can protect our clean waters while also being mindful of additional cost. Does anyone on the panel have any proposals on how to help fishermen and oyster farmers like Mr. Baumann and farmers and builders like Mr. Murphy and Ms. English? I'm willing to listen, and I am interested in finding some sort of middle ground and hope today we can help lead to that. A specific question, Mr. Baumann, to you is: How is this reduced regulation affecting our tourism, say, for example, or recreation? Mr. BAUMANN. It can be profound at times. But I would like to, if you don't mind, address the general statement you made and some of the remarks that were recently made about cost to farms and to developers. The EPI was promulgated a few years ago when our illustrious President appointed a coal lobbyist to head the EPA, a coal lobbyist, and they started the environmental integrity think tank and watchdog. And the EPI has tested 700,000 miles of river in realtime. The EPA, on the other hand, hasn't--and they are required to by the Clean Water Act, has not upgraded their evaluation of our waters in over 30 years. Can you imagine how much has changed in that much time? And it is important to know that the Mississippi River alone carries an estimated 1.5 metric tons of nitrogen pollution from agriculture into the Gulf, nearly creating a dead zone each summer the size of New Jersey. Now, you want to talk about cost? Gulf shrimp? Oysters? Let's think also parallel to that. The BP oil spill and the dreaded Corps exit that they used before they tested. That is what a lot of our problem is. We get out ahead of the science with some human activity. We get out ahead of the science. They used the Corps exit before they found out there was 30 carcinogens in it. All right? And the agricultural--I mean, the farmers don't mean to do this, but it is a consequence of feeding America. But they are not as careful as they claim to be. It is just that simple. And they are quick to portray a pastoral image of the family farmer. And God bless the family farmer. I have worked for them. But our problem in our area that is affecting the waters that flow through our State and the conditions of those waters and the cost of cleaning up such things is the fact that we have these big mega farms. Chairman WILLIAMS. Mr. Baumann, your time has expired. Mr. BAUMANN. Excuse me. Mr. THANEDAR. Thank you, Mr. Baumann. I yield back. Chairman WILLIAMS. Next I would like to recognize Mr. Meuser from Pennsylvania for five minutes. Mr. MEUSER. Thank you very much, Mr. Chairman. Thank you to all of our witnesses. Mr. Murphy, Ms. English, and Mr. Baumann, we appreciate your passion on this issue very, very much, actually. In eastern Central Pennsylvania, we have thousands of family farms. Every one of them that I speak to, and I speak to a lot of them, is very, very concerned about this new Biden WOTUS regulation going back to what existed before. They were generally pleased with the Clean Water Act prior because there was a certain level of certainty. But when you start talking about this WOTUS, where there are no nexus limits set, no distance limits set, what is considered navigable, what isn't, removing the word navigable. So does that mean heavy rains create new requirements? And then when the rains aren't there, it doesn't so much? You know, most family farms have their creeks and streams lead into other family farms, particularly up in my neck of the woods. So there are great conservationists. Now, being a great conservationist and being an environmentalist, as I certainly classify myself, doesn't necessarily mean you are going to always follow the most--the rules established, but when you have a family farm for 100 years, it tends to do that. So, you know, when you are dealing with a WOTUS rule like that, as Vice Chair Luetkemeyer brought up, where 99.8 percent of the private property is going to come under federal jurisdiction, I agree with my colleague who was just speaking that, boy, there needs to be a middle ground here. And just the fact that this is going to be overturned by SCOTUS, because it can't possibly. I mean, I have more notes here of what I can talk about on all the legal problems that exist with Attorney English. I am sure you could go on, and I would yield to you, and we would hear a lot of that. So it is going to be overturned and for a good reason, that it is a profound overreach. I mean, I have more quotes from farmers. I couldn't get them off the phone when I asked them to comment on this hearing, as well as all these other quotes from people from Zippy Duvall, to the NFIB, to the president of the Pennsylvania Farm Bureau, home builders. I mean, it just goes on that it is way too nebulous and troubling and potential high levels of costs and unnecessary regulations. So we need to come up with a fix, and we are the body. You know, the Small Business Committee is the only Committee in the old Congress that is here advocating for small business. So that is what we have to do. So I will just ask a question. I will go to Ms. English first. Where do you see--we just go back to what we currently have. What do you see as a solution that we should try to focus on? Ms. ENGLISH. I would encourage Congress to look to the congressional intent that is already expressed in the Clean Water Act. The fact that this was intended to be an exercise of federalism, that there is responsibility, and there are spaces that require the attention and focus and the power of the federal government to protect. But that is not all the waters in the United States. It was not intended to be all of the water bodies that existed in the United States. The States, many States have vigorous regulatory programs to protect what they see as State waters that encompass everything from the interior to the isolated to the coastal. The EPA has been very successful in using the Clean Water Act to encourage States to adopt reasonable water quality standards to protect the water uses in that State. I would suggest gently that Congress has told EPA how to do this and that, perhaps, EPA needs to re-focus on the language in the statute that Congress has given it. Mr. MEUSER. Excellent. Mr. Murphy, and then if I have time, I will go to Mr. Baumann. Mr. MURPHY. Same question, sir? Mr. MEUSER. Same question. Mr. MURPHY. I am not an expert in legal affairs, especially regarding Congress. Mr. MEUSER. You are on the ground field for it. Mr. MURPHY. We need certainty. Interact directly with the Corps, EPA, to establish a level of certainty that is not going to be subject to change upon each administration's change. We can't afford to change every four years or some other time because that forces us to go back to the JD process and start over. Mr. MEUSER. I appreciate that. I am going to have to yield back. But thank you. Mr. LUETKEMEYER. [Presiding.] The gentlemen yields back. I am glad you are trying to minimize your concern there. With that, we go to--I now recognize the gentleman from Kentucky, Mr. McGarvey, for five minutes. Mr. MCGARVEY. Thank you, Mr. Chairman. I appreciate that. I appreciate the panel for being here and telling us about your experiences. And the Chairman mentioned, I am from Kentucky. You all might not know too much about our State but might have heard a little bit about one of our products that we make there, and I can tell you that the four sort of core ingredients of bourbon are corn, yeast. You have to have a new charred white oak barrel and, of course, water. So bourbon. I won't go into a dissertation on bourbon today for the small business community. It gets its flavor from a lot of things, including the barrel, including the corn, including the products that go into it. But a lot of it does come from the water and from Kentucky's limestone water and from a lot of the properties we possess in our clean water. We have heard today a lot about the negative impacts that these regulations can have on farmers, on developers, on communities. And I agree. We deserve a clear and straightforward framework. But I think it is also important to acknowledge the negative impacts that weak water standards have and how they would devastate some industries. Whether it is breweries, whether it is fishing, whether it is my State's home industry of bourbon, these are entries that rely on clean water. And so, Mr. Baumann, I just wanted to hear from you a little bit about those kinds of benefits that those businesses that benefit from the regulations that we have ensure clean, safe water, and what kinds of small businesses are harmed when these water standards are relaxed. Mr. BAUMANN. There is so much I can answer that with. I will begin by telling you that we have a lot of beautiful rivers in South Carolina. We have a multi-billion dollar tourist industry. We have billions of dollars in the fisheries and in the outdoor recreation, and all that gets hurt. I will give you an example. We have polluters. We have coal fired power plants. We have agriculture. We have the aforementioned situations with the fill and build, fill in the wetlands and building on it and causing runoff and flooding and non-point source solution to our estuaries, which are the nursery grounds for everything we catch, you know. So it is really profound. And in South Carolina, to give you an idea about our recreational fishing and our ocean fishing and commercial fishing, there are health advisories now and have been for years during the EPA and the clean water rule in my view that is just not being addressed properly because we have health advisories telling us that we can't eat the fish we catch. I mean, that has got to--people go fishing to filet the fish and fry it for dinner. And when you can't eat the fish you catch because of mercury poisoning or some other heavy metal or whatever, it has to have profound impact on how many people go fishing, the money they spend in the community, in restaurants and hotels and everything else like that. It is an economic wheel that is being disrupted by a lack of good water quality. Our estuary now is an impaired estuary according to the EPA. The reason is non-point source pollution. It is just a small inlet. There is no major fresh water creeks going into it. It is from rain runoff, all of it. Mr. MCGARVEY. And you bring up something I think is worth noting in this hearing. I think this is something we all inherently know, but I think it is worth pointing out, our waters are connected. Mr. BAUMANN. All water is connected. Mr. MCGARVEY. You can't pollute water in one place and not feel the effects somewhere else. We are low on time, Mr. Baumann. I appreciate your testimony. But, Ms. English and Mr. Murphy, I would like to give you a chance to chime in. I am sympathetic, again, to needing a clear, straightforward framework and the real-life impacts of regulations. What kind of middle ground do you think we can pursue that would address your concerns and those of Mr. Baumann about the need for clean water? Ms. ENGLISH. Thank you. Again, I think the idea that the only solution here is at a federal level is very concerning to me. I think a bright line test for where the federal interest stops and where the State responsibility begins would be an important step, because it would then allow the discussion to take place about the kinds of protections that need to take place locally. It is with that local knowledge I think the middle ground can be found. Mr. MCGARVEY. And unfortunately, we are out of time, so I am going to yield back. Chairman WILLIAMS. [Presiding.] The gentleman yields back. I now recognize Mr. Alford from Missouri for 5 minutes. Mr. ALFORD. Thank you, Mr. Chairman. Thank you for holding this important hearing about how the Biden administration's WOTUS rule really impacts small businesses. That is why we are here today. Uncertainty is not a part of the equation for success for small businesses. That is exactly what this WOTUS rule has created for small business. This backwards rule would force family farmers to jump through hoops and likely retain legal counsel before developing or farming their land. I guess, the Biden administration forgot that most small business owners-- most farmers are small business owners. What also concerns me about this haphazard policy is that the EPA and Army Corps have said that the WOTUS rule would not have a significant impact on a substantial number of small entities, despite the Small Business Administration's Office of Advocacy sending a letter to the EPA and Army Corps last February stating the exact opposite. The decision was a calculated attempt by these groups to circumvent their obligations under the Regulatory Flexibility Act so that they did not have to conduct an initial regulatory flexibility analysis, which would prove just how dangerous this policy is for small businesses across the country. The Biden administration's failure to look at this rule and how it affects small businesses is just another shameful example that this administration will push its agenda at all costs, including at the cost of our small businesses and hardworking Americans. I want to begin my questions with you, Ms. English, because we have 95,000 farms in the State of Missouri. I, too, like our Vice Chairman, am from Missouri, and I am honored to represent those, not just here but on the Ag Committee as well. This has been a large focus that I have heard from farmers for the last 2 years in the 24 counties that I represent. One farmer in Cass County told me this incredulous story, but it is true, that he had to shut down part of his farm because they found the water standing in his cornfield. And until he could prove that it was not a navigable waterway, it turned out to be ruts from his combine and farming equipment that had filled in with water. Where is the commonsense in this ruling? I want to know from your standpoint, do you have any stories like that that you could share with us of the lack of commonsense of this, and what economic impact has it had on your family farm so far? Ms. ENGLISH. In regard to a story that is very similar to this, I practice a great deal with the Army Corps of Engineers, and I know the reviewers there. There is one who lives in a home that is not far from our family farm, and he called me to tell me that I needed to make sure that I filled in a bull hole. For those of you who don't know, bulls like to roll in dirt and get dirty. And we had a bull hole in front of a gate that was near the road, and he noticed that it was puddling during our rainy season in Florida, which is between May and September-October. And he warned me that I needed to backfill my bull hole before it became a jurisdictional wetland, and that if anything came up that that would be a concern. When an agency staff person uses my personal cell phone and does not send an email to tell me I need to backfill a bull hole, that should tell you that there is a concern in this space. The only reason I went to law school was having worked for a citrus growers co-op for 5 years--4 years, and watching what had happened with the regulatory creep in that timeframe. I became convinced that the only way my family could continue to farm, to continue to be the good stewards of the land and have the legacy of handing this property down to my children and grandchildren was for us to have a lawyer who understood it. It defined my entire professional life. Mr. ALFORD. I would submit to you that we don't need to be backfilling bull holes. We need to backfill the BS in WOTUS. And we need to come to the aid of farmers who are conservationists, who are doing everything they can to protect their farms. And, Mr. Baumann, I agree, you know, I try to listen to people I agree with. I really try to hear people I disagree with. I hear you, brother. I understand, we want clean water. I used to be an environmental reporter in south Florida. I know that pollution does cause bad effects on our seafood and our fishing industries, but we have got to find a way to work together in America that we can have great fisheries, great farms, and be a productive society that has commonsense. And with that, I yield. Chairman WILLIAMS. Thank you very much. Next, we recognize Mr. Ellzey from Texas for 5 minutes. Mr. ELLZEY. Thank you, Mr. Chairman. Thanks, everybody, for coming in today. One of the benefits of being very junior is to get to hear some of the arguments before you get to ask a question, and this is really a fascinating discussion. And as it comes down to it, as I see in my three witnesses here, not a single one of them wants dirty water. We all want clean water. We all depend on clean water. We all depend on it for our food. Mr. Baumann, I look forward to eating at your place sometime and sampling some of that fine seafood. And, Mr. Murphy, you build homes in my area. So I think what it comes down to at the end of the day, the reality is this is about power from agencies that don't answer to anybody else and the agenda of individual administrations. I didn't say what party they were from. Everybody has got their own agenda. Mr. Baumann, I do have a--this isn't a ``stump the chump,'' and I don't mean it as such. Can you define for me--since we have got some land folks here and then a water guy, can you define for me, in your opinion, what a navigable waterway is? Mr. BAUMANN. Let me answer that by something that has been left out by everybody who has brought up navigable water, and the phrasing is something to the effect of ``or substantially affects navigable waters.'' Water moves. It don't stay where it is at. It is either going to go down into the aquifer, or it is going to, you know, move with environmental conditions or with weather and so forth like that. So I don't have the exact definition of navigable water. I have read a few--like you say, it has changed over the years, and I do think it needs to be adopted at a certain level where everybody can count on it, you know. Mr. Murphy, Ms. English, myself, we need to know what the parameters are, but we are getting the short end of the stick in my business, I can tell you. And it is not just my business. I am speaking for that myriad, that plethora of people who I spoke about that rely on the fishing industry. Our whole town relies on the fishing industry and virtually every business in it. 99.9 percent of the businesses in this country are small businesses. And polluted water, regardless of how it happens, it has consequences for everybody except the people that cause the pollution. Nobody is getting accountability, you know, especially, with all due respect, the big mega farms, you know. Mr. ELLZEY. Okay. Let me ask you--in my time left, let me ask you another question. In your opinion, who should define navigable waterway? Is it the Congress or is it the EPA and the Corps? Real quick. Real quick. Mr. BAUMANN. Is it one of those three, who should define? Mr. ELLZEY. Who should, in your opinion? Real quick. 15 seconds. Mr. BAUMANN. You can't do it by the States because the States don't have the money or the purview. Mr. ELLZEY. All right. Mr. BAUMANN. That has been proven. Mr. ELLZEY. Okay. All right. Mr. Murphy, every administration has done its own thing. What would the homebuilders like to see in predictability, and who should define navigable waterway? Who should define these rules, Congress or an agency? Mr. MURPHY. We need certainty. Homebuilders and developers are adaptable, but we can't adapt to something we don't know. If you provide us certainty, we will deal with it somehow, some way. But as we go to contract to purchase land today, we cannot ascertain with any level of certainty whether we have WOTUS in or not, which forces us to either drop contracts, delay them, or incur the additional cost I testified to earlier. What is the solution? Give us certainty. Put it in the hands of an independent body. The Corps and the EPA, in my position, have more of a different take on it because they have been dealing with this for years. Put it with Congress, is my suggestion. Put it into an independent body, a committee of Congress, to study it and come up with some type of rule that will provide certainty beyond this single administration. That would be my recommendation, sir. Mr. ELLZEY. Okay. Ms. English? Ms. ENGLISH. I am always wary of a special study group. I believe that we need to honor the Constitution and the commerce clause. I believe that we need to honor the concept that was originally written into the Clean Water Act about the separation and the cooperative nature of our governmental associations between the federal government and States. I think that we need to have a bright line test. Just exactly what Mr. Murphy said, we need certainty and clarity. But by the same token, you are overlooking the power and responsibility of local governments and local States to protect their citizens, and they have the most direct knowledge. Mr. ELLZEY. Thank you all very much for your testimony. I yield back. Thank you, Mr. Chairman. Chairman WILLIAMS. Thank you very much. And now I recognize Ms. Van Duyne from Texas for 5 minutes. Ms. VAN DUYNE. Thank you so much, Mr. Chairman. And thank you for holding this important hearing on the persistent threat Waters of the U.S. poses to small businesses across the nation. I have heard from many small businesses just about how starting--they are just starting to now bounce back from government and post lockdowns and closures, and now this administration is reviving a threat of a vague and very confusing, as we have heard today, regulation that grants the federal government broad authority to regulate nearly every stream, pond, wetland. I mean, I think, Ms. English, you said it perfectly: Anything that comes on the land is basically--is how they are defining it. And even worse, the agency charged with enforcing this regulation doesn't even understand what they are executing, which in turn causes small businesses and farmers to be susceptible to fines and legal action even if they unknowingly violate these regulations. And honestly, the renewed approach to WOTUS seems designed not to protect the environment but really only to satisfy the administration's unending desire to regulate our job creators out of business. In the 117th Congress, I, along with all of my Republican Committee Members, sent a letter requesting that the Army Corps of Engineers and the EPA look at how this role will be determined and how it will be detrimental to small businesses. And while all of those questions remain unanswered, I look forward to holding the Biden administration accountable and working to ensure that this harmful rule does not go into effect. Mr. Murphy, you have provided some great testimony today. You had said--when asked by the Chairman and others what impact this is going to have, you said that basically you are going to have to abandon some projects. You have already had to abandon some projects. You said that as costs increase, and this does add additional cost, that the cost not only increases for the building for your company but that is having to be passed along---- Mr. MURPHY. Right. Ms. VAN DUYNE.--to your customers as well. Have you had to hire any additional staff? Have you had to hire consultants to help with this compliance? Mr. MURPHY. Not yet. We have not, because this is brand new. I was speaking to one of our consultants, a third party that we engage, just the other day. And I asked him, under the new 2023 WOTUS rule, how would you interpret this, especially regarding the significant nexus test, which now takes the combination of chemical, physical, and biological tests, along with the culmination of all upstream, i.e., catchment basin, similarly situated properties. How do you calculate that? This is a gentleman who used to be in the Corps office himself. He told me, I don't know. Ms. VAN DUYNE. Yeah, that is a problem. Mr. MURPHY. So if our investigative experts can't tell us, how can we understand what to do going forward on projects? We just basically shut projects down. We haven't yet, because everything we have under construction was basically permitted before. This only pertains to projects that haven't yet started construction. So we are dealing with shutdown on these. This is the first time in my career, not just related to WOTUS, but overall economic situation that we do not have any properties to acquire under contract right now. To sit here today and be faced with compounding the cost and delays associated with this may just force us to discontinue development for some period of time. How long, I don't know. Ms. VAN DUYNE. I mean, that is a grim look. If you had to estimate--I know you said, you know, this hasn't happened yet, but if you had to estimate, how much time do you think is going to be spent on working on compliance? Mr. MURPHY. Oh, Lordy. Ms. VAN DUYNE. Taking away from actually what you do do as part of your business model. Mr. MURPHY. Yes. We hired third-party consultants to advise us. We also engage third-party engineering, investigative firms to prepare the plans and items associated with it. Let me give you an example of a jurisdictional permit we have. Once we have that jurisdictional determination, that gives us the clarity and the certainty that we can proceed ahead with the development on that project without risk of intruding into WOTUS and incurring civil and criminal penalties. So we rely upon that. Under the new rule, they basically have noticed us that they will no longer consider existing JDs. That forces us to stop our engineering process, reconsider the impacts of the new WOTUS rule on that particular phase of development or the new development. That, in itself could result in months of delay, redoing the engineering plans, loss of land that we could otherwise develop because we can no longer wait for the timeframe for the agencies to determine jurisdictional determination, which could be, you know, 2, 3, 5 years. We don't know. So it is a significant impact to us. Ms. VAN DUYNE. Can you tell me--and this is just another-- another problem being dumped onto an industry that is already suffering from a whole list of issues. Mr. MURPHY. Yes. Ms. VAN DUYNE. Can you tell me the context now in which you guys are working, everything that is like building up. And really, we talk about the importance of having affordable housing. Mr. MURPHY. Yes. Ms. VAN DUYNE. Tell me what is happening in your district. Mr. MURPHY. In just a few seconds, you have got inflation; you have got interest rates; you have got electrification; you have got the shortages of transformers, which are going to be compounded by additional items out there; you have got shortages of houses already; you have got the overall issues with inflation and cost. There is no lack of demand. It is a lack of availability and cost. Ms. VAN DUYNE. I appreciate that very much and yield back. Chairman WILLIAMS. Thank you very much. I now recognize Mr. Bean from Florida for 5 minutes. Mr. BEAN. Mr. Chairman, a very good afternoon once again. And thank you so much. I am still learning. I am still learning how vastly it affects a small business. We already know in this committee how hard it is to run a small business already without government interference. But then when you throw government interference, uncertainty, a cloudy future, then it is really hard, especially if you own a family farm for over 100 years, as the English family has. Ms. English, what is it going to mean should this go forward? And you are an attorney, so you are used to understanding complex things. I understand this rule is hazy and complex, but what does it mean to your family having to deal with another rule such as this? Ms. ENGLISH. Well, you may be familiar with citrus greening, which has affected citrus groves across the State of Florida decimating the industry. We have pushed the groves on our property, and we are preparing to go back with varieties that are more tolerant of the disease. For those of you that don't know, citrus greening is sort of an autoimmune disease for orange trees. It is deadly. It has decimated the industry. Under the new rule, I don't know that the groves that we had planted for 140 years aren't actually jurisdictional to the Corps, that I am not going to be required to go get a permit for them, and mitigate if we are going to plant. We are a small family farm. None of us rely entirely on the farm income. Again, my husband teases me that I farm to support--or I practice law to support my farming habit. But the issue here is it is hundreds of thousands of dollars and it is years. We would be looking--if this is jurisdictional, and it appears to me from the rule that maybe it might be, we would be looking at hiring engineers--I would, of course, be the lawyer, but all of the other consultants that Mr. Murphy needs in order to successfully proceed through a permit or a jurisdictional determination so that we had that protection. Hundreds of thousands of dollars and years of delay, I don't know that we can withstand that. Mr. BEAN. Has your farm shrunk over the years, the 100 years? Has it grown or has it shrunk or stayed the same? Ms. ENGLISH. No. We last acquired a piece of property from a cousin, I believe, in the mid 1980s. But since that time, it has been relatively stable at about 880 acres. Mr. BEAN. I gotcha. But you have seen it--because we are both from the free State of Florida. You have seen the massive influx of people who have voted with their feet, they are coming to Florida. But you have seen farming threatened in Florida. Is that correct? Have you said you have seen farms close or sell out? Ms. ENGLISH. Absolutely. And any farm that is within an hour or an hour and a half of an urban area in Florida is under dire threat of development, simply because farmers are price takers not price makers. We compete in a global market. We produce commodities that we can't raise the price on. So when you reach a point where you can no longer be economically viable, the hard choices for legacy farm families have to be are you selling this to the government or are you selling it to Mr. Murphy's friends, because those are our options. Case in point, I have lost probably 10 percent of my clients over the last year, and how I lost them was I helped them sell their property. Mr. BEAN. Gotcha. Would you say--some say that growing a nation's--feeding a nation, feeding a nation and for a nation to be able to grow its own food is national security. Would you agree with that statement? Ms. ENGLISH. I would agree with that 100 percent. I just object to the fact that I have to have an entire herd of consultants in order to successfully do that. Mr. BEAN. How would a small business--how would a small farmer navigate the waters of running a farm with this new environment of uncertainty, of regulations from the current administration? Ms. ENGLISH. With great respect, Congressman, I don't think they can. Mr. BEAN. Mr. Chairman, I yield back. Thank you so much. Chairman WILLIAMS. Next, we have--I want to recognize Mr. Stauber from Minnesota for 5 minutes. Mr. STAUBER. Thank you very much, Mr. Chair. And to the witnesses, thanks for your testimony. We have a big fight on our hands. As a former small business owner of 31 years, this WOTUS rule, our small businesses, our farmers are against it, and this administration just pushes it and tries to push it upon the American people. Mr. Murphy, what is the cost of--what does it cost you to hire these consultants to figure out this WOTUS rule and what goes with it? What is the cost for your company? Mr. MURPHY. The initial cost for a study depending upon the size and complexity of the individual project will usually range from $10,000, $15,000, maybe $20,000. That is the initial study. Then if you have to go through a formal submission to the Corps for a jurisdictional determination, that cost is being priced right now to us between $50,000 to $75,000. And this is under the existing rule, not the new rule. We don't have the ability to project what the increase in cost may be, because my consultants are telling me they don't know how to enforce it yet or do the inspection. And that is just the cost to do the determination and jurisdictional. If you go through the individual permitting, you have got significant additional costs beyond that. Mr. STAUBER. So in 30 seconds, you just said that these rules that the government put forward have cost you a minimum of $100,000. In just 30 seconds, that is the minimum. So my question to you is, let's say it is $300,000, and I don't think that is out of the question once push comes to shove with this ridiculous ruling, who do you pass that onto? Mr. MURPHY. Well, if we can pass it on, it is to the ultimate home buyer through purchases of the homes from the individual homebuilder. If we can't pass it on---- Mr. STAUBER. So if you pass it on to the home---- Mr. MURPHY. If we could---- Mr. STAUBER. If you could. Mr. MURPHY. Subject to market acceptability. Mr. STAUBER. Right. Okay. Mr. MURPHY. That is who it would go to. But in many cases we can't. So we are forced then to pretty much just mothball this particular development because we can't recover the cost through increases in housing prices, or we have to resize the project, which basically means shrinking the developable land to stay way away from what may be considered significant nexus under the WOTUS test to basically proceed ahead and not run the civil and liability risk associated with it. So that would allow us to proceed ahead without incurring significant costs, but what it does is have the same effect. It increases the cost of the remaining land and lots and therefore has a direct increase on the remaining homes to be built. Mr. STAUBER. If it wasn't so devastating, I would find it laughable that the EPA and the Army Corps claim that the WOTUS rule won't significantly impact our American small businesses. That is just simply not true. It is just simply not true. I think it is disingenuous for them to tell the American people. I know the farmers, manufacturers, miners, and homebuilders in northern Minnesota would have had a different story to tell if they were asked. Ms. English, I have heard from farmers in my great State of Minnesota that are struggling to comply with the strict water regulations already in place in our State. Can you tell me more about the jobs and projects that this rule will make harder for farmers to get done? Ms. ENGLISH. And I actually have talked with some of my cousins who farm in and around Hawley, Minnesota. Mr. STAUBER. Yeah. Ms. ENGLISH. So we have compared notes and cried in each other's beer over some of these issues. Mr. STAUBER. Yes. Ms. ENGLISH. But here is what doesn't happen, you can't-- you begin not to maintain portions of the systems that need to be maintained because you are afraid of incurring jurisdiction. Catchment basins that you use to capture soils or to treat for water quality don't happen. The improvement projects, like the one I referred to in my testimony, where you are trying to do something that is going to improve the water quality, ultimately being discharged from the property, aren't being addressed and aren't being done. It is one thing to make a rule to protect water quality; it is another thing if that rule cuts both ways and actually impairs water quality because you could no longer repair the infrastructure or maintain it that treats water quality. Mr. STAUBER. I will just tell you, in my last 30 seconds, this rule is devastating. I will tell you that the Obama administration, when Joe Biden was Vice President, they allowed a water permit in a mine in Minnesota. The water came out more pure. They had to add sediments to it. And this administration just remanded that same water permit to stop mining. You can't make this up. You just can't make it up. And I think this WOTUS rule is going to be devastating for small businesses and farmers. And those--the bureaucrats that are getting paid to do this, like your EPA neighbor who calls you and says the bull hole needs to be filled or changed, or my colleague over here who says that the tractor tires--the water and the tractor tire and the groove and the dirt needs to be-- something needs to be dealt with, can you imagine? Ms. ENGLISH. Uh-huh. Mr. STAUBER. I mean, can you imagine this? Ms. ENGLISH. Yes. Mr. STAUBER. And by the way, $320 billion--that is with a ``B''--$320 billion of additional regulations this administration has put on our small businesses in just 2 years. I yield back. Chairman WILLIAMS. Thank you. Now, I recognize Mr. Crane from Arizona for 5 minutes. Mr. CRANE. Thank you, Mr. Chairman. I appreciate it. Thank you to the witnesses for showing up today. I appreciate it. Sorry I was tardy. We were in a Homeland Security meeting. It is one of the tough things about this town is you just get thrown around all over the place. But real quick, I wanted to start with you, Mr. Murphy, have you ever voted for an official at the EPA in your life that you can remember? Mr. MURPHY. Voted for an official at the EPA, no, sir. Mr. CRANE. Okay. Let's see, Ms. English, have you ever voted for an official at the EPA? Ms. ENGLISH. No, sir. Mr. CRANE. Mr. Baumann, have you ever voted for an official at the EPA? Ms. ENGLISH. No, sir. Mr. CRANE. No, sir. All three of them, no, no, no. Does that bother you guys? Follow-on question to all three of you: Does it bother you that unelected bureaucrats are making rulings and judgments that are affecting your business and lifestyle? We will start with you, Mr. Murphy. Mr. MURPHY. I would prefer to have a say in that, yes. But I also look to my elected Congressman to help enforce the Clean Water Act and provide the regulatory guidance that provides clarity to what we do. Mr. CRANE. Yes, sir. And you just made a key word there, ``elected.'' My point was, right now, you guys, your lifestyle, your businesses, and many others across this country are being affected because of unelected bureaucrats, and therefore you have no recourse, right? You can't go--take me, for example. I am a freshman here in Congress. If I screw up really bad, and some of the folks in my district would probably, you know, say that I am, but if I screwed up really bad, they have a recourse. They can get rid of me in 2 years, right? But you guys can't go and fire somebody at the EPA, can you? Mr. MURPHY. That is correct. We have recourse, not under what is called a preliminary jurisdiction because that is non- contestable, but there is a jurisdictional determination out that we may have recourse---- Mr. CRANE. Okay. Mr. MURPHY.--so contested. But directly to answer your question, no, we don't have any authority to approve, vote, or try to oust Members of the EPA or the Corps. Mr. CRANE. Thank you. Ms. Bau--or, excuse me, Ms. English, does that bother you? Ms. ENGLISH. It is a terrible concern when it appears that the agency perspective appears to deviate substantially from the law that has been handed down by Congress and signed by a President. Mr. CRANE. Thank you. And the last thing I have to say is just a statement real quick, because I know we are never--we are all never going to agree on, you know, everything that goes on here. But I am just going to tell you guys, my vote will be cast in a manner that acknowledges your private property and keeps unelected bureaucrats and government officials out of your lives as much as possible. And I want to see local officials making these rules and regulations, because I think that they have the best eyes on and the best capability of making sound judgments that are the best for your lives. Okay? Thank you guys again for coming. I yield back. Chairman WILLIAMS. Thank you very much. And I would like to thank our witnesses for their testimony today and for appearing before us. Without objection, Members have 5 legislative days to submit additional materials and written questions for the witnesses to the Chair, which will be forwarded to the witnesses. I would ask the witnesses to please respond promptly if that happens. There being no further business, without objection, the committee is adjourned. [Whereupon, at 3:43 p.m., the committee was adjourned.] A P P E N D I X [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] [all]