Cramer Questions FWS, EPA Nominees on WOTUS, Cooperative Federalism in EPW Hearing

***Click here for audio. Click here for video.***

WASHINGTON, D.C. – The Senate Environment and Public Works (EPW) Committee held a hearing to discuss nominees to serve in the Trump administration. The hearing featured testimony from Brian Nesvik, nominee for Director of the U.S. Fish and Wildlife Service, and Jessica Kramer, nominee for Assistant Administrator of the U.S. Environmental Protection Agency (EPA) Office of Water.

U.S. Senator Kevin Cramer (R-ND) questioned Kramer on the EPA’s Waters of the United States (WOTUS) interim guidance and upcoming rulemaking, which it announced on March 12. He asked her to explain the guidance, why it complies with the U.S. Supreme Court's prescriptive decision in Sackett v. EPA, and how the previous rule did not align with Sackett.

“It is a straightforward guidance document that essentially says that an implementation [of a WOTUS rule], EPA and the Army Corps of Engineers, they're going to follow the law,” said Kramer.

“To your point, Sackett was prescriptive. It was prescriptive in a number of ways, specifically focused around wetlands, which is what the guidance document focused on,” explained Kramer. “Sackett held that the Rapanos plurality was correct, which means that the significant nexus test that had been previously applied and implemented by both agencies no longer stands. It specifically focuses on the fact that only those wetlands that are adjacent to or abutting relatively permanent waters are jurisdictional moving forward. While Sackett was very prescriptive in certain aspects, there are some terms and phrases of ambiguity that are remaining from the courts. I’m thinking about things like the phrase ‘continuous surface connection’ [and] ‘relatively permanent waters.’ What does it mean to be connected to a relatively permanent water and then the age-old question of, is this ditch in or out? […] Any potential rulemaking that would be taken by the agency would hope to shore up those remaining areas of ambiguity so a landowner can confidently stand on their property and know whether or not they have a WOTUS or they don't have a WOTUS.”

Kramer also committed to visiting North Dakota during the WOTUS rulemaking process.

Cramer asked the witnesses to give a primer on their interpretations of cooperative federalism.

“What cooperative federalism means to me is that there are certainly roles that are very clearly defined, for both the federal government and the state government,” responded Nesvik. “And broadly speaking, most wildlife species are the responsibility of the individual states to manage with the exception of those who have been listed under the Endangered Species Act, and then there are a few other acts, Migratory Bird Treaty Act, Horse and Burro Act. There's some other species that certainly have a federal rule. But at the end of the day, there is an opportunity on all of those, both state- managed species and federal- managed species for the two entities to work together with their common stakeholders to find solutions. It's a more efficient way to run government. It's better when the states and the federal government are working together on these things. And as long as they stay within their own lane on those things that are sovereign to their particular entity, whatever that may be, whether it's the federal government or the state.”

“We've talked about Waters of the United States, but I'm going to focus on the Underground Injection Control Well Program in the Safe Drinking Water Act,” responded Kramer. “This is an example of a program that can be delegated from the federal implementation […]  to the state for them to actually implement the program. The great thing about that is that the states know their resources best. Part of this is the remaining oversight rule that EPA has to ensure that the states are continuing to implement these programs consistent with the requirements of the federal law. It also allows the states the ability to be more stringent in the restrictions that they put in place, which again, states know their resources best to the extent that there is a need for a little bit of additional protection from their perspective, that is the ability to do it. It's that joint working together, recognizing expertise of the states while also maintaining the oversight role that is required under the federal law.”