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WASHINGTON, D.C. – The Senate Environment and Public Works (EPW) Committee held a hearing today to discuss how to improve the federal permitting process, which has long been a frustration for those trying to build infrastructure, housing, energy, and transportation projects. Recent efforts to streamline and reform the process have not gained consensus, but the EPW Committee is exploring bipartisan solutions to provide clarity and consistency in the permitting process.
U.S. Senator Kevin Cramer (R-ND), Chairman of the EPW Transportation and Infrastructure Subcommittee, questioned witnesses on the 2023 Supreme Court decision, Sackett v. Environmental Protection Agency (EPA). The Sackett ruling explicitly defined Waters of the United States (WOTUS) and significantly narrowed the scope of federal regulation over jurisdictional waters. Despite the Supreme Court’s ruling in Sackett, paired with West Virginia v. EPA and the overturning of the Chevron Doctrine in Loper Bright Enterprises v. Raimondowhich peeled back bureaucratic overreach, Cramer stated the U.S. Army Corps of Engineers (Army Corps) still has not adequately responded to the ruling.
Cramer asked Leah Pilconis, the General Counsel for the Associated General Contractors of America, and Carl Harris, Chairman of National Association of Homebuilders, “why do we even have to seek jurisdictional determination or permission when any home builder can read the law and see this isn't a jurisdictional water? In other words, we don't put a highway patrolman on every car on the interstate, just in case one of them speeds. We presume most of them are not going to violate the law. How can we simplify?”
“The problem is that it's not clear, and you can ask one person if something is jurisdictional and the next person if something is jurisdictional, and you might get two different answers,” responded Pilconis. “For the construction community we need clarity. It's very difficult to move forward when you don't know what is a Water of the United States. Not getting a permit when you are in federally controlled water has very significant civil and criminal penalties. The consequences and what's at risk are huge for the developer, for the contractor. [Sackett v. EPA] did provide some guardrails. It provided some clarity, but what came out of that Supreme Court decision is not being implemented by the agencies. As Mr. Harris said, there are very unclear terms that have not been defined in the regulations, and that's what's causing a lot of confusion.”
“Along with clarity, we need consistency,” replied Harris. “We need consistency between the [Army Corps] districts. If we could get true definitions of the terms that we were talking about, then our builders, our developers would know when they could take reasonable risk before they make a tremendous investment in the property and start moving dirt. We do need that consistency and clarity.”
Cramer referenced permitting for electricity transmission projects. He warned against building out transmission and generation absent a planning process by local utilities and state regulators, and the potential for costs to be shifted to customers. “We have to find a federal backstop, but I think on linear siting for a transmission line should be the same as it is for a water pipeline or any other any other linear infrastructure. We can do that, but we do have to recognize those state regulators, having been one at one point myself.”