WASHINGTON, D.C.- Today, the Water Resources and Environment Subcommittee led by Chairman David Rouzer (R-NC-07) held a hearing entitled “Waters of the United States Implementation Post-Sackett Decision: Experiences and Perspectives.” Chairman Rouzer and witnesses representing the nation’s farmers, home builders, and the State of Alaksa testified that stakeholders and regulated communities across the country continue to struggle with regulatory inconsistency and a lack of transparency from the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) on what constitutes a “water of the United States” (WOTUS) under the Clean Water Act.
This uncertainty and the resulting economic burdens remain even after the U.S. Supreme Court clearly ruled in Sackett v. EPA that key principles underpinning the Biden Administration’s WOTUS rule exceeded federal regulatory authority under the Clean Water Act. Just over a year ago, the Administration released its inadequate revision of the unconstitutional WOTUS rule, which failed to appropriately reflect the Court’s Sackett decision and caused further confusion amongst the regulated community.
Subcommittee Chairman David Rouzer (R-NC) noted at the opening of today’s hearing that federal regulations should be simple and easy to follow; however, he said, “There is no greater example of bureaucratic overreach than the nightmare of complying with and understanding the definition of a ‘water of the United States’.” He called for a balanced approach to regulation, saying, “We need to balance the role of the federal government and states and municipalities. The Clean Water Act never envisioned for the federal government to have control over every ditch and mud puddle, and left room for states to protect their waters as they best see fit.”
Rouzer emphasized that the Administration and the agencies have not made the necessary and appropriate effort to comply with the Supreme Court’s decision: “In summation, the Administration's implementation is not in accordance with the Sackett ruling generally; nor is it consistent project to project where Jurisdictional Determinations (JDs) have been issued."
Witnesses echoed the concerns of Rouzer and other Subcommittee Members today. Alaska Department of Environmental Conservation Commissioner Emma Pokon noted the important role of the states in the federal-state partnership under the Clean Water Act’s framework. “State policymakers can make judgment calls about what level of protection is appropriate for their residents. And states are often better situated to make those judgment calls,” Pokon said in her testimony. “State officials have more complete visibility on circumstances for residents, are more accessible, and may have more nuanced appreciation for unique ecosystem issues and concerns…. But federal agencies are reluctant to trust states; instead, they continue to grope for complete authority over all waters…. Federal policymakers must remember that states exist. We’re here, and we’re ready to do our jobs to protect state waters. Moreover, working with states to achieve a stable regulatory framework would best serve the field of water quality regulation.”
Courtney Briggs of the American Farm Bureau Federation and Chairman of the Waters Advocacy Coalition discussed the burdens placed upon farmers by the overreaching WOTUS rule and the Administration’s failure to truly comply with the Sackett ruling, stating that “the Biden Administration’s interpretation of WOTUS lacks clarity and certainty for landowners and pushes the scope of the federal government’s jurisdictional reach to the outer bounds of what is legal under the Clean Water Act (CWA).”
Briggs continued: “The agencies’ failure to provide clear direction to the public is creating significant uncertainty on the ground and delaying important projects. It is worth noting again that landowners need clarity from the agencies on how they are interpreting and implementing the rule because the CWA carries severe civil and criminal penalties for even negligent violations. Landowners can be fined up to $64,000/per day or receive jail time for any CWA violations. These penalties can devastate small businesses, so landowners must understand how this rule is implemented. Leaving them in the dark will only open them up to unknowingly violating the law. Due to the agencies’ veil of secrecy, landowners are denied their constitutional rights of due process and fair notice.”
Vincent E. Messerly, P.E., President of the Streams and Wetlands Foundation and testifying on behalf of the National Association of Home Builders, spoke to project delays and impacts on builders’ ability to provide more affordable housing options for Americans. He said, “The challenges surrounding WOTUS permitting become stark when you consider the time and cost to obtain a CWA section 404 permit. A 2002 study found that it takes an average of 788 days and, adjusted for inflation, $471,836 to obtain an individual permit and 313 days and $50,233 for a ‘streamlined’ nationwide permit. Over $1.7 billion is spent annually by the private and public sectors obtaining wetlands permits.”
Messerly added, “If home builders and the residential construction industry cannot understand the regulatory framework under which to operate, how can we expect to achieve housing production to address our national affordability crisis? Safeguarding the environment and building homes do not have to be mutually exclusive.”
Video of the remarks can be found here.
