00:00Thank you, Madam Chairman. Thank you to all of you for your service and your willingness
00:05to serve again. I'm going to go fairly quickly here, and almost nothing I'm going to ask
00:11you was in my notes, except I'm going to start with one. Ms. Kramer, aka Jess, I'm looking
00:19forward to calling you Assistant Administrator. Could you walk me through the guidance, the
00:26new guidance regarding waters of the United States that you've offered, that the agencies
00:32provided, in the context of SACIT, and why it complies with SACIT, and why the previous
00:40rule did not, speaking of ignoring court's decision. Just kind of walk us through that,
00:50and the prescriptive nature of the SACIT decision, perhaps, for us.
00:55Absolutely. Thank you, Senator. I really appreciated the opportunity to get to talk
01:00to you in a little bit more detail about WOTUS when we met. The guidance document that was
01:06put out by the agency, I think, hopefully, is pretty clear to folks. It is a straightforward
01:12guidance document that essentially says that in implementation, EPA and the Army Corps
01:17of Engineers, they're going to follow the law. That gets exactly to your second question
01:23about what does SACIT say? What does it mean for implementation by both agencies to follow
01:29the law? To your point, SACIT was prescriptive. It was prescriptive in a number of ways, specifically
01:37focused around wetlands, which is what the guidance document focused on. SACIT held that
01:43the Rapanos plurality was correct, which means that the significant nexus tests that had
01:49been previously applied and implemented by both agencies no longer stands. It specifically
01:55focuses on the fact that only those wetlands that are adjacent to or abutting relatively
02:01permanent waters are jurisdictional moving forward. I do have to say, while SACIT was
02:06very prescriptive in certain aspects, there are some terms and phrases of ambiguity that
02:12are remaining from the courts. I'm thinking about things like the phrase continuous surface
02:17connection, relatively permanent waters, what does it mean to be connected to a relatively
02:21permanent water, and then the age old question of, is this ditch in or out? Paired with that
02:29guidance document, the agency released a federal register notice, kicking open a docket to
02:35take, not kicking open a docket, that sounds very aggressive, opening a docket to take
02:40public comments related to some of those ambiguous terms and phrases. Any potential
02:47rulemaking that would be taken by the agency would hope to shore up those remaining areas
02:51of ambiguity so a landowner can confidently stand on their property and know whether or
02:56not they have a WOTUS or they don't have a WOTUS.
03:00Thank you for that. That was very helpful. Would you mind coming to North Dakota real
03:06early? I know you've been there, but real early in the WOTUS process, we have a lot
03:13of landowners that are very familiar with the problems of the ping-ponging, and frankly
03:20the flaws in previous rules. Would you commit to coming to North Dakota? It's not that far
03:25from Wisconsin.
03:26That's very true. I'll just take a Northwest swing. Absolutely, Senator. It would be my
03:31pleasure.
03:32Thank you. Okay, General Nesrick, first of all, I don't even know why you gave an opening
03:38statement because after the three previous to you, you could only do worse. I mean, honestly,
03:43it can't all be true. Listening to Wyoming politicians talk about their states like reading
03:49a book that I want to be part of. Having said that, I feel a little bit of Penny's pain,
03:58but you referenced, or maybe it was even Senator Lummis that referenced something that
04:06Ms. Kramer also referenced in the context of these jobs, and that is references to cooperative
04:11federalism. I would be interested in really all three of you, if we could have the time,
04:17to just give me a little primer on what you mean by cooperative federalism. You, having
04:21been a state leader, certainly would have a good definition, I'm sure.
04:26Absolutely. Thank you, Senator, and I sure appreciate our time in your office yesterday.
04:30I can't look at you and not think of something that I learned, though, from our new Secretary
04:35of Interior, and that is that both North Dakota and South Dakota have badlands, but North
04:40Dakotas are badder badlands. I appreciate that question, and certainly what cooperative
04:48federalism means to me is that there are certainly roles that are very clearly defined for both
04:53the federal government and the state government. Broadly speaking, wildlife, most wildlife
04:59species are the responsibility of the individual states to manage, with the exception of those
05:04who have been listed under the Endangered Species Act. Then there are a few other acts,
05:09Migratory Bird Treaty Act, Horse and Burrow Act, there's some other species that certainly
05:14have a federal role, but at the end of the day, there is an opportunity on all of those
05:20both state-managed species and federal-managed species for the two entities to work together
05:24with their common stakeholders to find solutions. It's a more efficient way to run government.
05:30It's better when the states and the federal government are working together on these things,
05:35and as long as they stay within their own lane on those things that are sovereign to
05:38their particular entity, whatever that may be, whether it's the federal government or
05:42the state.
05:45Absolutely. Thank you, Senator. I'd like to use an example in talking about what cooperative
05:51federalism means to me. In the Office of Water Context, there are many statutes underneath
05:56both the Safe Drinking Water Act and the Clean Water Act. We've talked about waters of the
06:00United States, but I'm going to focus on the Underground Injection Control Well Program
06:03in the Safe Drinking Water Act. This is an example of a program that can be delegated
06:09from the federal implementation to the state for them to actually implement the program.
06:18The great thing about that is that the states know their resources best. Part of this is
06:24the remaining oversight role that EPA has to ensure that the states are continuing to
06:29implement these programs consistent with the requirements of the federal law, but it also
06:33allows the states the ability to be more stringent in the restrictions that they put in place,
06:38which again, states know their resources best to the extent that there is a need for
06:41a little bit of additional protection from their perspective. That is the ability to
06:47do it. It is that joint working together, recognizing expertise of the states while
06:54also maintaining the oversight role that is required under the federal law.
