Source: United States Senator Kevin Cramer (R-ND)
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WASHINGTON – U.S. Senator Kevin Cramer (R-ND) questioned Environmental Protection Agency (EPA) Assistant Administrator for Water Radhika Fox about the overreaching effects of the new Waters of the U.S. (WOTUS) rule at a Senate Environment and Public Works (EPW) hearing. He thanked her for visiting North Dakota, where he hosted her and then-Acting Secretary of the Army Corps for Civil Works Jaime Pinkham for a listening session with farmers and landowners, and for maintaining open lines of communication with state stakeholders.
Last month, Senator Cramer joined all of his Republican colleagues in introducing a resolution to formally challenge the Administration’s new WOTUS rule, which the EPA and the U.S. Army Corps of Engineers (Army Corps) announced in December 2022. Today, he pressed Assistant Administrator Fox on the onerous regulatory implications of the rule.
“Since the agency unveiled the rule, I’ve heard from a lot of those stakeholders, constituents, and others who are concerned the new rule really embodies some of the same government overreach of the 2015 rule,” said Senator Cramer. “Also concerning was the rule’s shift in applying the burden of proof, and this is a very specific issue – the burden of proof on the landowners for proving that their land is non-jurisdictional.”
“The previous rule, the Trump rule, in its preamble states emphatically that the burden of proof is not on the landowner, but rather on the agency. Your rule seems to have flipped that. Can you explain that to me a little bit?” asked Senator Cramer.
“On this landowner question, a couple of things I would share. One is that, as part of our 2023 rule, we have a whole ‘landowners guide’ that makes it very easy for landowners to understand if a permit might be needed or not,” responded Assistant Administrator Fox. “We also have worked closely with Army Corps, where they can provide free jurisdictional determinations to any landowner that asked for them and to do that quickly, so that’s a key feature.”
Senator Cramer also acknowledged the agency’s responsiveness on an Infrastructure Investment and Jobs Act (IIJA) implementation issue pertaining to the State Revolving Fund (SRF) and Water Infrastructure Finance and Innovation Act (WIFIA).
“Our state agency that oversees SRF, along with a variety of other stakeholders in the water sector, raised concerns over the effective date of the Build America provisions. In particular, there were different effective dates for WIFIA and SRF. Obviously different programs – same agency, but different programs with similar goals,” said Senator Cramer. “After a couple of inquiries with the state officials, your team reconciled the effective dates. Imagine that – a good, simple solution to the issue, and it’s going to allow projects in North Dakota, and I presume other places, but [particularly] in North Dakota to move forward. I want to thank you and your team for clearing that up. It’s good public service.”
“North Dakota is doing a fabulous job with the implementation of the Bipartisan Infrastructure Law resources. They’ve already taken all of their [capitalization] grants for year one, they’re moving fast on their intended use plans. It’s been a great partnership. There are going to be some great projects funded in North Dakota, and I can’t wait to come back out for some of those groundbreakings,” responded Assistant Administrator Fox.