Kelly Statement on Clean Water Act Vote

Today, Arizona Senator Mark Kelly voted against legislation that would have reverted to decades-old Clean Water Act regulations, creating significant uncertainty for agriculture and economic development in Arizona. The Congressional Review Act vote today, if successful, would repeal the most recent proposed Clean Water Act rule and revert Clean Water Act regulations to those dating back to the 1980’s, which rely on an inconsistently applied interpretation of what constitutes a “Water of the United States” under the Clean Water Act. 

“This legislation would have had the unintended consequence of reverting back to rules that create even more uncertainty for Arizona businesses, developers, and farmers,” said Senator Kelly. “At the same time, I remain concerned about the administration’s updated Clean Water Act rule, and am going to keep pressing them to ensure the implementation of this rule takes into account Arizona’s unique geography and needs so that it doesn’t regulate every dry ditch and wash.”

Senator Kelly recently asked the EPA and Army Corps of Engineers for commitments to work with Arizona stakeholders to ensure determinations of the WOTUS applicability take into account Arizona’s unique geography and hydrology. Kelly also spoke to EPA Assistant Administrator for Water Radhika Fox at a recent Senate Environment and Public Works Committee hearing about the current status of Clean Water Act regulations and how this Congressional Review Act would have impacted Arizona. Fox said, “The CRA, if it were to pass, it would put us back to the pre-2015 definition of Waters of the United States. That definition is broader than our 2023 rule, our 2023 rule is more narrow in the definition of the Waters of the United States.”

See video of that interaction here, and below is a transcript:

Senator Kelly: I want to start off by discussing the recently finalized rule by EPA and the Army Corps on the definition of Waters of the United States. As you know, there has been a push by some in Congress to use the Congressional Review act, a CRA, to repeal this rule. And now, you and I, we discussed some of my concerns here and those of Senator Sinema, the two of us sent a detailed letter to EPA and the [Army] Corps last week with some specific implementation questions. I wanted to talk for a minute about what would happen if the CRA passed. So we’re going to have a vote on it. So, if it passed, I want to start with a few yes-no questions. So if the 2023 WOTUS rule were appealed, would the Trump era navigable waters take effect?

Administrator Fox: No it would not because it was vacated in August 2021 by a federal court. 

Kelly: And would the 2015 Obama era WOTUS rule take effect? 

Fox: No, it would not. 

Kelly: So my understanding is the rule that would be in effect would be something similar to the pre-2015 WOTUS guidance; is that correct?

Fox: That is correct, senator. 

Kelly: That guidance, my understanding is that it relies on the same types of significant nexus test as the WOTUS rule that EPA and the Army Corps finalized this January; is that right?

Fox: Yes. But there are key differences in how we approach it than in that.

Kelly: Can you explain those differences? 

Fox: Yes. The CRA, if it were to pass, it would put us back to the pre-2015 definition of Waters of the United States. That definition is broader than our 2023 rule, our 2023 rule is more narrow in the definition of the Waters of the United States. It is more uncertain. And so there would be key challenges. With the CRA you can’t sort of take parts of the rule that work and parts that don’t, that people might have concerns about – it wipes out the entire rule and puts back in place the 2015. So we would, for example, the question of the two test significant nexus and relatively permanent. In our 2023 rule, significant nexus is much more narrowly defined than in 2015. And it would be utilized only in a very small number of waters whereas it would be much more broad in 2015 versus 2023. Another challenge if the CRA would pass is many of the exemptions and exclusions that I was talking to Senator Cramer about a moment ago, those would all be voided out. Because the CRA says that agencies cannot ever adopt a rule that’s similar in the future. We may not bring back prior converted crop or artificial ponds, things like that. It really would create confusion, uncertainty and void the very common sense aspects of the rule that we worked so hard to put in place. 

Kelly: So the things we did in the 2023 rule that actually made it narrower?

Fox: Yes. 

Kelly: If we go back to the 2015 [rule], we do it through the CRA process, in the future we couldn’t use those same items you just addressed to get a more narrow definition of waters of the United States? 

Fox:  That is correct. The agencies are prevented from issuing anything that is similar. 

Kelly: Yeah. This took us a while to sort through. It’s not an obvious thing how sometimes you can be — through a CRA process you are trying to get an outcome that might be narrower and, in fact, you have some unintended consequences and I think that’s the case here. Is that your sense? 

Fox: That’s absolutely the case. We will be throwing out narrower definition of waters of the United States. We would be throwing out all of the implementation direction that we provided. We would be throwing out the collaboration memos between USDA and EPA and Army Corps that will help with good implementation. We would be going back to a broader definition of significant nexus. It would create a great deal of uncertainty in communities across the country. We believe it would lead to delays in permitting important projects, permitting infrastructure projects, development happening on land and so it’s not the right tool. 

We can always improve on Waters of the United States. We welcome that conversation with this committee. We are also laser sharp focused on doing implementation work in a way that addresses the regional differences across the country. We lose all of this if this rule gets CRA-ed. 

Kelly: Thank you Administrator Fox.