Federal agencies are leaving landowners in the dark about what they can legally do under the Clean Water Act without violating the law, representatives of agriculture and other industries told lawmakers Wednesday.
The Transportation and Infrastructure Committee’s Water Resources and Environment Subcommittee focused on how the EPA and the Army Corps of Engineers are implementing the CWA to comply with last year’s Supreme Court decision in Sackett,
“They're not giving our members a roadmap on how they're expected to follow the law,” said Courtney Briggs, chairman of the Waters Advocacy Coalition. “That's really all my members want to know — what is in and what is out.”
WAC includes “a cross-section of the nation’s construction, transportation, real estate, mining, manufacturing, forestry, agriculture, energy, wildlife conservation, recreation, and public health and safety sectors,” said Briggs, who also is senior director of government affairs at the American Farm Bureau Federation.
“This WOTUS rule is standing in the way of affordable housing, renewable energy projects, projects that are benefiting communities, like the construction of schools, and environmentally beneficial projects like the development of wetlands,” she said.
In Sackett, the Supreme Court ruled 6-3 to scrap the “significant nexus” test, which was based on an earlier Supreme Court decision and required federal regulators to establish such a connection between wetlands and “navigable waters” in order to be considered under federal jurisdiction.
After lawsuits were filed to enforce the Sackett decision, court rulings have left the nation divided on the issue: Twenty-three states are implementing the Biden administration’s “waters of the U.S.” rule, which includes the test, but 27 states are not.
Witnesses and lawmakers at the hearing supported either codifying the Sackett decision through legislation or returning EPA and the Corps’ jurisdiction to what it resembled before the decision was issued.
Yet even subcommittee members seemed pessimistic about resolving the age-old question of what actually constitutes a 'water of the United States.'"
“Anyone who thinks that this hearing is going to resolve this issue today, or even that the Sackett decision is the last word on this, I don't think history backs that up, frankly,” Rep. Rick Larsen, D-Wash., said. “I look forward to the next 19 hearings we have on WOTUS to resolve this.”
Rep. Derrick Van Orden, R-Wis., said Congress has been “lazy” in not addressing the Clean Water Act. “My predecessors abdicated the responsibilities to the executive branch so they could keep getting elected and come up here and have these very super-important meetings,” he said.
But the Supreme Court’s decision earlier this year getting rid of the Chevron doctrine has forced Congress to legislate, Van Orden said.
“Congress is going to have to do their job, which is write very prescriptive legislation, and tell the executive branch what they're going to do,” he said.
Briggs said again that EPA and the Corps are not making public the guidance they’re using to implement the Sackett decision. A Freedom of Information Act request yielded more than 1,000 pages of documentation, but much of the material was redacted under FOIA as being “deliberative,” she said.
But she added that “the snippets that we've received through the field memos that the agencies have released, if taken collectively, fundamentally aren't that different from ‘significant nexus.’”
She said WAC was afraid the Corps, which implements the wetlands permitting program under the CWA, would eliminate the “significant nexus” test through rulemaking and then “would come up with a policy that has the same force and scope of ‘significant nexus,’ but just call it something different, and that’s what we think is materializing.”
EPA, which shares CWA responsibilities with the Army Corps of Engineers, has been asked for comment. The agency was not represented at the hearing. It has said previously that “guidance documents and memoranda about jurisdictional tributaries are publicly available” and noted it held informational sessions about how it planned to adhere to the Sackett decision.
Other witnesses represented Alaska and Colorado water regulators and the National Association of Home Builders.
Emma Pokon, commissioner of the Alaska Department of Environmental Conservation, spoke in favor of states having more authority over waters.
“If EPA doesn't control an activity affecting water, state law and policymakers can make the judgment call about what level of protection is appropriate for their residents,” she said. “And frankly, we're better suited to make those judgment calls.”
Vincent Messerly, president of the Stream and Wetlands Foundation, speaking on behalf of the National Association of Home Builders, said the agencies have left critical terms in their regulations open to interpretation, such as “relatively permanent waters” and “continuous surface connection.”
“These undefined terms are being used to connect isolated wetlands to WOTUS via unregulated streams or features such as ditches, swales, pipes, etc.,” he said. “This has morphed into a game of ‘20 questions’ for home builders and other project applicants, asking, ‘How far away is just too far to document connectivity?’”
Nicole Rowan, director of the Water Quality Control Division in the Colorado Department of Public Health and Environment, said her state legislature had passed a bill to fill in the regulatory gaps created by the Sackett decision that was supported by a cross-section of groups in the state, including the Sierra Club and the Colorado Chamber of Commerce.
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