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WASHINGTON – U.S. Senator Kevin Cramer (R-ND) questioned Susan Bodine, Partner at Earth and Water Law, on the implications of the Sackett v. the Environmental Protection Agency (EPA) decision on Waters of the United States (WOTUS) determinations under the Clean Water Act (CWA), which directly impacts landowners in North Dakota and across the United States.
Ms. Bodine is the former Assistant Administrator for EPA’s Office of Enforcement and Compliance Assurance under the Trump administration, where she was responsible for enforcing environmental statutes under the EPA’s jurisdiction.
In his opening remarks, Senator Cramer stated federalism is not an insignificant issue we should ignore when it comes to policy. Earlier this year before the EPW Committee, Lt. General Spellmon from the U.S. Army Corps of Engineers (Corps) stated the Corps performs approximately 80,000 regulatory actions every year. Senator Cramer asked Ms. Bodine whether or not the Sackett decision would result in regulatory efficiencies.
“Do you believe if there's 80,000 regulatory actions by the Corps of Engineers that the clarification, the simplification of Sackett should reduce that workload for the Corps of Engineers, and perhaps there's some efficiency we could actually gain from this?”
“Unfortunately, I don't think we're going to see that because the way they set it up, it is going to be case by case determinations instead of right definitions,” said Bodine.
“That’s my concern. How much simpler can they make it? How much more prescriptive could they have been?” asked Senator Cramer.
Senator Cramer then stressed the need for comprehensive federal permitting reforms and emphasized how linear infrastructure like transmission lines, pipelines, and roads benefit from permitting reform.
“Because of the complexity of this type of infrastructure, Congress established the nationwide permit program to allow these projects to obtain one permit as long as they're determined to have a minimal effect on the environment. Can you discuss the importance of a nationwide permit, considering both the efficiency of it as well as the effectiveness of a nationwide permit?” asked Senator Cramer.
“The Corps of Engineers nationwide permits is really the reason why we haven't completely stopped building infrastructure in this country because it is more efficient, truncated review based on minimal impacts. There has been a gradual narrowing of the nationwide permits, which means that more and more would be subject to the individual permits which are what take years and years and years and subject of lawsuits. If there isn't federal jurisdiction, then you don't need to get the nationwide permit, but the question is going to be decided case by case and it remains to be seen how that'll be applied,” Bodine said.
As a former regulator, Senator Cramer said it’s hard for him to imagine a multi-state, multi-jurisdictional linear infrastructure that does not have a federal nexus. Senator Cramer believes such minimal changes only muddy the waters when the regulated community needs distinct clarity. He then questioned Bodine on the rules’ ambiguous and flawed regulations.
“Where do you see the legal fight coming? I mean, obviously, if two and a half pages of amendments to a 141-page rule, in the context of a major Supreme Court decision, isn't going to be adequate, certainly not adequate for the Prairie Pothole region that I come from. By the way, with all due respect, not federally protected does not mean not protected. In fact, I would submit the mediocrity of the federal government is far, far worse for the protection of wetlands in North Dakota than what North Dakotans, for that matter, how farmers protect their own wetlands. Where do you see the legal fight coming in the next several months?” asked Senator Cramer.
“There are groups that are going to challenge the September conforming rule based on both the issue of no notice and comment as well as the substance and then the litigation over the January rule is ongoing,” said Bodine. “That's why it's not in effect. That's why it's stayed in 26 states and that litigation will go on so yes, there'll still will be litigation.”
“As long as there's chaos and uncertainty, there's going to be litigation and stays. Maybe that's the strategy in and of itself,” responded Senator Cramer.
Background:
Under the Obama administration, the EPA and Corps published the Clean Water Rule in 2015 defining which wetlands and streams are subject to protection under the CWA. North Dakota sued the EPA and successfully achieved a preliminary injunction, preventing EPA and Army Corps from implementing the 2015 Clean Water Rule.
On April 21, 2020, the Trump administration published the Navigable Waters Protection Rule which redefined WOTUS to reduce the number of waterways and wetlands protected by the CWA, as compared to the Obama EPA’s Clean Water Rule of 2015 and pre-2015 regulations. In August 2021, the U.S. District Court for the District of Arizona remanded and vacated the Trump administration’s rule. Given this ruling, the Biden administration’s EPA announced it would interpret WOTUS “consistent with the pre-2015 regulatory regime until further notice.”
On March 20, 2023, the Biden administration’s EPA and Corps finalized their new, expansive WOTUS definition. Following the finalized regulation, North Dakota helped achieve a preliminary injunction against the rule which became effective in 24 states. In addition, the House of Representatives and the Senate passed Congressional Review Acts (CRA) disapproving of the new rule, but President Biden vetoed the measure.
Earlier this year, the Supreme Court issued its decision in Sackett v. EPA, which adopted a narrow test for waters covered under the CWA. On August 29, 2023, EPA and the Corps released the final conforming rule amendments to the “Revised Definition of ‘Waters of the United States’” in response to the Supreme Court’s Sackett decision.
Last year, Senator Cramer penned an essay for the Harvard Journal of Law & Public Policy on restoring states’ rights and adhering to cooperative federalism in environmental policy.