WASHINGTON, D.C. – Today, the Senate Environment and Public Works (EPW) Committee held a hearing titled, “Examining the Implications of Sackett v. Environmental Protection Agency for Clean Water Act Protections of Wetlands and Streams.”

Below is the opening statement of Ranking Member Shelley Moore Capito (R-W.Va.) as delivered.

“Thank you, Mr. Chairman. I thank the witnesses for being here today. And It is the 51st anniversary of the Clean Water Act as we speak.

“So thanks for holding this important hearing to discuss the scope and implications of the Biden administration’s revised Waters of the United States (WOTUS) rule and its failure to fully implement the Supreme Court’s recent Sackett v. EPA decision.

“I fear this inability or unwillingness of the Biden EPA and U.S. [Army] Corps of Engineers to follow the directions laid down by the Court sets up only more regulatory uncertainty for stakeholders and the promise of even more litigation.

“On day one of this administration, President Biden signed an Executive Order to once again reopen and expand the reach of federal jurisdiction over ‘Waters of the United States.’

“It was a solution in search of a problem, even after repeated requests that the EPA and the Corps could never identify specific examples of waters that were impaired as a result of the prior rule, and it took two years to finalize the new version.

“That is two years without clarity, even as Congress moved forward with infrastructure investments that would be held up by WOTUS jurisdictional determinations.

“During that time, EPA Assistant Administrator for Water Radhika Fox repeatedly promised that the Biden administration’s initial WOTUS proposal would balance elements of the prior two revisions, provide regulatory certainty, and, perhaps most importantly, be ‘durable’ so that it could withstand legal scrutiny.

“The Rule we ultimately got achieved none of those goals.

“During those two years of rulemaking, the Sackett case was making its way up to the Supreme Court with every indication that a ruling would significantly affect any rule the EPA or the Corps of Engineers finalized.

“The administration ignored repeated admonitions from certainly me and others, as well as impacted property owners, and stakeholders that the agencies should wait until the Supreme Court acted to proceed so they could follow the Court’s directives.

“Ultimately we were right and they were wrong: the Biden administration wasted valuable time and resources prioritizing the promulgation of a rule that was unanimously rejected by the Supreme Court for its overreach.

“The EPA has now done the bare minimum to revise its initial proposal in response to the Supreme Court’s decision so that it could rush a ‘direct to final’ rulemaking that avoids transparency and public input.

“The only reason I can see to take this path is to keep WOTUS alive as a political wedge issue and environmental activists engaged.

“I fear this is setting us up for a repeat of WOTUS whiplash.

“To understand why, let’s just go back a few months.

“The Supreme Court's ruling in Sackett v. EPA, handed down in May of this year, represented a crucial victory for the cause of cooperative federalism enshrined in the Clean Water Act.

“The Court correctly limited the scope of federal authority over wetlands consistent with the text of the Clean Water Act, thus reestablishing the delicate equilibrium between federal and state governments that Congress intended when it comes to safeguarding our precious water resources.

“Supporters of expansive federal regulation of WOTUS argue that the court’s decision leaves waters unprotected. The Chairman spoke to this.

“That is misleading. It is not only misleading but it does a tremendous disservice to state and local governments that know their local water issues best and have the most at stake in protecting them.

“It is an argument we have heard repeatedly over the past decade as the federal government embarked on five separate attempts to create a WOTUS Rule, ramping up or scaling back the reach of federal jurisdiction and the types of projects requiring federal permits from Washington’s broken regulatory apparatus.

“The Supreme Court's decisive ruling in the Sackett case should have put an end to this back and forth. At least that was our hope.

“Instead, on September 8, 2023, the agencies published the updated final WOTUS Rule amending the 2023 Rule to allegedly conform to the Sackett decision. 

“The agencies stated that the sole purpose of the rule was to conform to Sackett and therefore used a procedural tactic that is supposed to apply only when an action allows no agency discretion, and imposes no burdens on the regulated community.

“What that really results in is no public input or transparency into the rulemaking and so it was announced in final form.

“The Supreme Court’s decision in Sackett did more than just abandon the old significant nexus standard for determining the scope of federal waters. The majority established a new test pulled from the Clean Water Act that fully accounts for the law’s use of the term ‘navigable waters.’

“The agencies entirely ignored this direction and so on both process and substance have opened themselves up, I believe, to more legal challenges, created more uncertainty for businesses, landowners, and project sponsors, and prolonged for all of those involved the likelihood that it going to necessitate another WOTUS rule in the future.

“This new revision to WOTUS won’t even be consistently applied across the country.

“The update does nothing to address other issues that prompted the Rule to be stayed by District and Circuit Courts.

“In 27 states…where the 2023 Rule was enjoined, the agencies will interpret WOTUS consistent with the pre-2015 regulatory regime and the Sackett decision.

“The agencies, in response to questioning from my staff, could not really tell us how that will be implemented or even if or when guidance would come for those states so people know the rules of the road.

“For 23 states…and Washington, D.C., where the 2023 Rule has not been enjoined, the agencies will implement their revised rule.

“A patchwork of states with differing definitions of federal jurisdiction is a regulatory nightmare for stakeholders. And you brought up a good point in you statement, a lot of these waters cross over from different state to state that now have different regimes.

“As it stands, without regulatory guidance from the agencies, no one has clarity on what either side of this bifurcated implementation scheme will mean for a given project in a given state.

“It is no wonder that everyone who wants to build something in this country, whether it is a road or a renewable energy project, a semiconductor facility or a pipeline, everybody wants permitting reform.

“It is essential for policymakers and regulatory agencies to actually address these concerns and ensure a transparent and inclusive decision-making when formulating significant environmental regulations.

“Only through a fair and transparent approach can we develop effective policies that protect our natural resources, our precious air and water, and support sustainable economic growth.

“The Supreme Court correctly applied the Clean Water Act in the Sackett decision. Had the administration faithfully followed the Court’s decision, then perhaps we could have avoided ongoing litigation and the patchwork regulatory standard that we see now exists.

“Instead, it will likely be up to the courts again to constrain administrative overreach or to give us some clarity.

“Despite this summer’s rulemaking, Sackett was a significant step forward in the effort to make permitting more efficient and in the effort to limit federal agency authority to the parameters set by our Congress. 

“Cooperative federalism enshrined in statute when correctly applied will protect our environment and our economy, and the executive branch should follow these instructions from both Congress and the judiciary to move in that direction.

"Thank you Mr. Chairman.”

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