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House Subcommittee Holds Hearing on Post-Sackett Legislation
The U.S. House Subcommittee on Water and Environment of the Committee on Transportation and Infrastructure held a hearing on September 11 titled “Waters of the United States Implementation Post-Sackett Decision: Experiences and Perspectives", addressing how Congress should engage in constructing legislation now that the Supreme Court has determined that the definition of “Waters of the United States,” or WOTUS, does not extend to wetlands without, “a continuous surface connection to bodies of water of the United States in their own right.”
Among the witnesses at the hearing were Emma Pokon, Commissioner of the Alaska Commissioner of Department of Environmental Conservation; Courtney Briggs, Chairman, of the Waters Advocacy Coalition on Behalf of the American Farm Bureau Federation; Nicole Rowan, Director of the Water Quality Control Division at Colorado Department of Public Health and Environment; and Vincent Messerly, President of the Stream and Wetlands Foundation on behalf of the National Association of Home Builders.
Subcommittee Chair David Rouzer (R-NC) opened the hearing speaking about the Clean Water Act of 1970, and the federal environmental protections it put in place, while allowing for economic development. Rouzer continued his statement about the implication of the Supreme Court decision in Sackett vs EPA, noting that the states have more room to protect their waterways as they see fit without the imposition of the federal government. He asserted that although the states now have jurisdiction to impose regulation of their own waterways, the existing regulations for the states to use are unclear, being difficult to understand and illusive in their wording. Rouzer believes that there should be no room for interpretation of existing or created laws. He contended that the stalling of permits goes against what the Clean Water Act of 1970 was enacted for, namely environmental protection without harming economic development and property rights. The ruling in Sackett vs. EPA, Rouzer said, was a win for American farmers, small businesses and property owners, however with a lack of clarity and incongruence between the latest ruling and the definition of WOTUS, there is now unpredictability of regulations and implementation under the current administration, creating significant delays for projects across the nation. Rouzer expressed his concern for the lack of transparency and consistency from the current administration's implementation regarding the new WOTUS definition, leaving Americans to rely on the Army Corps of Engineers and EPA for predictable, workable, and stable regulations.
Ranking Member Grace Napolitano (D-CA) then provided her opening statement, emphasizing the need for environmental protections to address the threat of climate change. It is imperative, she said, that Congress ensure that the conservation, recycling, and reuse of water is protected from pollution, specifically in headwater states. She noted that communities may no longer be able to rely on safe and sustainable sources of water to support day-to-day economic and agricultural demands, specifically in the western region of the United States. Without minimum standards in place, she stated, business and citizens are subject to face increased costs and complexity around water quality and accessibility. Finally, Napolitano stated that she believes the Supreme Court has chosen to inflict its own philosophy, politicizing decades of legally grounded efforts to protect water quality.
After the opening statements, the witnesses were asked a series of questions surrounding the implications of the Sackett vs EPA decision on the permitting process, financial cost on constituents, and implications to the environment. Chair Rouzer began the questioning by asking Pokon about Alaska's experience post-Sackett and if there has been any guidance from the Army Corps of Engineers. Pokon responded that very little change has occurred since the ruling, and that the Army Corps of Engineers is only being contacted on a case by case basis. Pokon continued her response by stating that the melting of the permafrost layer is altering the categorization of certain land areas, giving the Army Corps of Engineers jurisdiction over the land because it is now considered a wetland under “WOTUS.”
Chairman Rouzer then turned his line of questioning to Briggs, inquiring about the challenges those who work in the agricultural sector are facing today. Briggs responded that farmers are facing a lack of clarity and guidance on the implementation of what agricultural practices are allowed to take place and where. Briggs continued by stating that farmers are left confused by what laws are in and what laws are out. Chairman Rouzer used the remainder of his time to question Messerly, asking, “What are the extra costs that homebuyers are facing?" Messerly responded that housing costs are two times what they have been in the past, which inflates costs, along with the addition of an acre of mitigation priced at $70,000.
Congresswoman and Great Lakes Task Force Member Hilary Scholten (D-MI) questioned all the witnesses, asking, “What are some of the challenges that organizations are encountering post-Sackett?” The consensus from all the witnesses was that an overwhelming financial burden has been created, due to shortages of federal funding. Funding shortages cause longer processing times for permits, deterring some businesses from bringing commerce to certain areas, as mentioned by Messerly. Congresswoman Celeste Maloy (R-UT) also addressed the panel of witnesses by directing the same question to all: “Have longer permitting process times created better outcomes for parties involved,” with all the witnesses replying to the question with a resounding “No.”
The conclusion of the hearing was that since the Supreme Court ruling of Sackett vs EPA, there has been little guidance as to what regulations are being enforced, and who has the authority to enforce them. The process to obtain permits has increased in time and monetary cost, generating difficulty for consumers and businesses. There is a lack of knowledge surrounding implementation of regulations, specifically in the farming sector, subjecting farmers to steep penalties for their actions if not considered in compliance with regulations. Consequences for farmers are $64,000k/day or jail time for failure to comply. Post-Sackett, states and specifically headwater states are now far more responsible for the health, safety, and monitoring of their waterways than pre-Sackett.
Reported by NEMWI Intern Chloe Kimrey, University of Michigan
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