This is a hearing of the Subcommittee on Water Resources and Environment.
List of witnesses:
Ms. Emma Bokun, Commissioner, Alaska Department of Environmental Conservation | Witness Testimony
Ms. Nicole Rowan, Director, Water Quality Control Division, Colorado Department of Public Health and Environment | Witness Testimony
Ms. Courtney Briggs, President, Water Defense Coalition, on behalf of the American Farmers Union | Witness Testimony
Mr. Vincent E. Messerli, Professional Engineer, President, Waterways and Wetlands Corporation, on behalf of the National Association of Home Builders | Witness Testimony
Opening remarks, as prepared by Subcommittee on Water Resources and Environment Chairman David Roser (R-NC) at the hearing entitled “U.S. Waters Executive After the Sackett Decision: Experiences and Prospects”:
For more than half a century, the Clean Water Act has improved the quality of our nation’s waterways. As we continue to protect and improve the quality of our nation’s water, it is essential that the regulatory framework under the Clean Water Act performs as Congress intended, meeting the demands of the 21st century.
To achieve this, we must strike a balance between environmental protection and economic development – a crucial balance that protects the environment without unnecessarily impeding our economy and private property rights. To achieve this, we must also balance the role of the federal government with that of states and municipalities. The Clean Water Act was never intended to give the federal government control over every ditch and mud puddle, but rather to leave it to states to protect their waters as they see fit.
Our competitors in China, and elsewhere, don’t care about environmental regulations or permits. When they want to build, they simply do so, with little regard for the environment. While we don’t want to adopt their mindset—and we won’t—we shouldn’t delay vital infrastructure projects like manufacturing, housing, or energy projects for no reason.
As I have repeatedly stated before, regulations should be simple and easy to follow. They should implement the intent of the law in a clear and transparent manner, making them easy to enforce. There should be no room for subjectivity or maneuvering by any bureaucrat to substitute his or her own biases or interpretations. Unfortunately, this is not the case with the Clean Water Act.
There is no greater example of bureaucratic overreach than the nightmare of complying with and understanding the definition of “Waters of the United States,” or “WOTUS.” This definition defines the scope of waters subject to jurisdiction under the Clean Water Act, impacting water quality certification programs, pollutant discharge permits, and oil spill prevention.
In North Carolina, pharmaceutical company Novo Nordisk, a leader in the treatment and prevention of a wide range of diseases including diabetes, announced a $4 billion investment to expand its site, bringing more than 1,000 jobs to the state. In October, the company asked for a judicial decision, or JD, which never arrived. They were told to apply for a permit and amend it once the JD was issued. They have since applied for a permit without specifying. However, the permit review process can take more than a year.
Novo Nordisk cannot conduct on-site risk avoidance and mitigation analyses before it knows which plots of land to avoid. Nor can it conduct off-site alternatives analysis without a clear understanding of how its site will perform against other sites that may or may not have similar problems. This is just one example of many cases across the country where economic investment, job creation—and in this case, public health—has been stalled by this opaque process.
Last year’s Supreme Court ruling in Sackett v. EPA was a decisive victory for America’s farmers, small businesses, and property owners. But despite the court’s clarity, there remains a clear contradiction between the ruling and this administration’s recent definition of WOTUS, leading to a new round of legal challenges and additional confusion.
When Michael Connor, the assistant secretary of the Army for civil works, testified before the subcommittee last December, he noted that there were more than 4,000 backlogged court decisions. While the administration claims to have made some progress in approving these decisions, its inconsistent and piecemeal approach to implementing the WOTUS rule is causing serious delays on a variety of different projects across the country.
Sackett rejected the “significant connection” test and ruled that WOTUS must have a continuous surface connection to conventional navigable waters. That ruling was issued more than a year ago, and we have just passed the one-year mark since the administration issued its revised ruling. Farmers, homebuilders, businesses, manufacturers, and many other hardworking Americans rely on the Navy and the EPA to create predictable, enforceable, and stable WOTUS regulations. The administration has made no progress so far.
In short, the administration’s implementation is inconsistent with Sackett’s ruling as a whole; it is inconsistent with the Project to Forecast Where Defense Memoranda Have Been Issued. I remain concerned about the lack of transparency and consistency with which this revised definition has been implemented. We are all still waiting for clear, consistent guidance that everyone can rely on. The decision to treat WOTUS on a location-specific basis without clear training and universal application only serves to muddy the waters of the Supreme Court’s clear and straightforward ruling.
I look forward to hearing from our witnesses today about their experiences and the challenges they have faced with implementing WOTUS since the Sackett decision and what recommendations they have for us in Congress so that we can work to provide assurances to Americans who rely on clear implementation of WOTUS.
