Hearing

Witness List:

Opening remarks, as prepared, of Water Resources and Environment Subcommittee Chairman David Rouzer (R-NC) from hearing, entitled, “Waters of the United States Implementation Post-Sackett Decision: Experiences and Perspectives”:

For more than half a century, the Clean Water Act has worked to improve the quality of our nation’s waterways.  In our continued pursuit to protect and improve the quality of our nation’s waters, it is imperative that the regulatory framework under the Clean Water Act works as Congress intended it to work, allowing the demands of the 21st century to be met. 

To do so we must have environmental protection and economic development — this critical balance that protects the environment without unnecessarily hampering our economy and private property rights.  To achieve this, we must also balance the role of the federal government with that of the states and municipalities.  The Clean Water Act was 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.

Our competitors in China, as well as elsewhere in the world, do not care about regulations or environmental permitting.  When they want to build, they just do it, with little if any regard to the environment.  While we do not want to adopt their mentality — nor would we — we should not put meaningless delays on critical infrastructure projects like manufacturing, housing, or energy projects.

As I have stated many times before, regulations should be simple and easy to follow.  They should carry out the intent of the law in a clear and transparent manner, making them easy to enforce.  There should be no subjectivity or wiggle room for any bureaucrat to substitute their own biases or interpretations.  Unfortunately, that’s 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 a “water of the United States” or “WOTUS.”  This definition determines the scope of jurisdictional waters under the Clean Water Act, affecting water quality certification programs, pollutant discharge permits, and oil spill prevention.

In North Carolina, pharmaceutical company Novo Nordisk, a leader in treating and preventing a wide range of diseases including diabetes, announced a four-billion-dollar investment for a site expansion, bringing over one thousand jobs to the state.  In October, they requested a jurisdictional determination, or JD, which never came. They were told to apply for a permit and to modify it once a JD was issued.  They have since applied for a permit without determination.  However, the permit review process can take over a year.

Novo Nordisk cannot conduct on-site avoidance and minimization analysis before they know what parcel of property must be avoided.  Nor can they conduct an off-site alternatives analysis without a clear concept of how their site works against other sites that may or may not have similar issues.  This is just one example of many instances across the country where economic investment and job creation — and in this case, public health as well — are stalled due to this vague process. 

The Supreme Court’s ruling in Sackett vs. EPA last year provided a decisive win for America’s farmers, small businesses, and property owners.  Yet, despite the Court’s clarity, there remains a distinct incongruence between the ruling and the latest definition of a WOTUS from this administration, which has led to a new round of legal challenges and additional confusion.

When Assistant Secretary of the Army for Civil Works Michael Connor testified before the Subcommittee last December, he reported a backlog of more than 4,000 jurisdictional determinations that need to be made.  While the Administration claims some progress has been made in approving these, the inconsistent and piecemeal approach it is taking in implementing its WOTUS rule is causing serious delays on a variety of different projects across the nation.

Sackett struck down the “significant nexus” test and held that a WOTUS must have a continuous surface connection to traditional navigable waters.  That ruling was over a year ago, and we just passed the one year mark since the Administration issued its revised rule.  Farmers, home builders, businesses, manufacturers, and many other hard-working Americans rely on the Corps and EPA for predictable, workable, and stable WOTUS regulations.  The Administration has not yet delivered.

In summation, the Administration’s implementation is not in accordance with the Sackett ruling generally; nor is it consistent project to project where JDs have been issued.  I remain concerned about the lack of transparency and lack of consistency with which this revised definition has been implemented.  We are all still waiting for clear and consistent guidance on which everyone can rely.  The decision to approach WOTUS on a site-specific basis without clear training and universal application has served only to muddy the waters of a very clear and straightforward Supreme Court ruling. 

I look forward to hearing from our witnesses today about their experiences and challenges with WOTUS implementation since the Sackett decision and what recommendations they have for us in Congress so we can work to provide surety to Americans who rely on clear implementation of WOTUS.