Hearing

• The Honorable Radhika Fox, Assistant Administrator, Office of Water, United States Environmental Protection Agency | Written Testimony
• Dr. Maria-Elena Giner, Commissioner, International Boundary and Water Commission, United States Section | Written Testimony
• Mr. Louis Aspey, Associate Chief, Natural Resources Conservation Service, United States Department of Agriculture | Written Testimony
• Dr. Aaron Bernstein, Director, Agency for Toxic Substances and Disease Registry | Written Testimony
• Ms. Nicole R. LeBoeuf, Assistant Administrator, National Ocean Service, National Oceanic and Atmospheric Administration | Written Testimony

Opening remarks, as prepared, from Water Resources and Environment Subcommittee Chairman David Rouzer (R-NC) from today’s hearing, entitled “Review of Fiscal Year 2024 Budget Request: Agency Perspectives (Part II)”:

Today’s hearing is the second and final in a series this Subcommittee is holding on the President’s fiscal year 2024 budget proposal. Today, we are pleased to have representatives from the Environmental Protection Agency (EPA), International Boundary and Water Commission, United States Department of Agriculture’s (USDA) Natural Resources Conservation Service, the Centers for Disease Control and Prevention’s (CDC) Agency for Toxic Substances and Disease Registry, and the National Oceanic and Atmospheric Administration (NOAA).

I’d like to start by discussing actions involving the EPA. I appreciate that we have the Assistant Administrator for the Office of Water, the Honorable Radhika Fox, here with us today. I would like to bring attention to an issue that my constituents in North Carolina, and communities across the country, care a great deal about – the definition of “waters of the United States” (WOTUS).

The definition of a WOTUS under the Clean Water Act has been debated in the courts and altered by varying presidential administrations for decades. At the same time, it has led to uncertainty and bureaucratic back-and-forth for regulated communities such as farmers, property owners, homebuilders, and infrastructure developers.

That’s why I was encouraged to see the Supreme Court act decisively in Sackett v. EPA (Sackett), delivering a seemingly easily implementable and consistent definition of WOTUS. The Sackett decision clarified what the intended scope of the Clean Water Act has always been, doing away with the overreach and confusion of the “significant nexus” test.

This ruling enables EPA, along with the Army Corps of Engineers (Corps), to kickstart project completion, eliminate regulatory red tape, and maintain crucial environmental protections by expeditiously conforming with Sackett. Now, EPA and the Corps must quickly bring the Biden Administration’s flawed and legally outdated WOTUS policy into compliance.

In response to this, EPA and the Corps recently announced they will be finalizing a revision to the WOTUS definition by the beginning of September. While I appreciate the agencies’ endeavor to quickly provide a rule consistent with Sackett, I have concerns whether this will be done correctly and through the right procedures.

At our hearing last month, Assistant Secretary of the Army for Civil Works Michael Connor said that EPA and the Corps will promulgate changes through a “direct to final” rule process under the Administrative Procedure Act (APA). This is a rarely used procedure which does not employ the traditional comment and response process.

The Biden WOTUS rule was based heavily on the “significant nexus” test, and any revision to the rule will inevitably be major in order to align with the clear Sackett decision. The APA is clear in its requirement for a notice and comment rulemaking process for major changes to regulations, and it is crucial that the agencies comply with it. I am significantly concerned that this approach, which the EPA has called “surgical” or “ministerial,” is rather a veiled attempt to articulate compliance while actually circumventing the process.

In addition, by moving forward without the proper comment and response process for a major change, this administration disregards regulated communities once again, depriving them of the opportunity to ensure that the regulation would actually provide certainty and align with Sackett. Rather than heed the rule of law, it seems the Administration is working around their failed definition to implement political priorities through other means.

Thankfully, due to Sackett, we no longer have to worry about outlandish regulation of things like depressions in a farmer’s field, ditches that have collected water after back-to-back storms, or isolated waters that might be visited by a frog living in a non-adjacent navigable water.

Instead of trying to find ways around Sackett, EPA and the Corps should focus their efforts on revising this rule the right way. It is undoubtedly possible for the Administration to act both expeditiously and accurately. I urge them to listen to the will of the American people and the Supreme Court and do just that.

Moving on from EPA, we also have folks here from a number of other important entities in the Subcommittee’s jurisdiction: the International Boundary and Water Commission, the Natural Resources Conservation Service, the Agency for Toxic Substances and Disease Registry, and NOAA’s National Ocean Service.

Between them, these entities serve a crucial set of missions, including maintaining important water projects and treaties at the southern border, assisting farmers and ranchers with their conservation needs, aiding research into public health and chemical safety, and managing our Nation’s coastal zones. I look forward to hearing from all of them about their successes and challenges in carrying out these missions.