Cramer Highlights Importance of WOTUS Landowner Clarity at EPW Hearing

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WASHINGTON, D.C. - The Senate Environment and Public Works (EPW) Committee held a hearing to discuss the U.S. Army Corps of Engineers (USACE) Civil Works Program and policies under consideration for the Water Resources Development Act of 2026. The hearing featured testimony from Assistant Secretary of the Army for Civil Works Adam Telle and USACE Chief of Engineers and Commanding General Lieutenant General William H. Graham Jr.

U.S. Senator Kevin Cramer (R-ND), Chair of the EPW Subcommittee on Transportation and Infrastructure, began by thanking Telle for his efforts to finalize the Dakota Access Pipeline Record of Decision, saying, "It's been a decade in the works and I just want you to know that those of us are living with that situation are grateful both for the urgency you've given it as well as the thoughtfulness. […] We look forward to a Record of Decision fairly soon."

Cramer also thanked Telle for the USACE's rollout of its "Building Infrastructure, Not Paperwork" initiative, to pursue the agency's mission more efficiently and cost-effectively. It focuses on building national infrastructure, cutting red tape, improving efficiency, transparency and accountability, and enhancing project prioritization.

"Anything that you can do to make the agency more efficient and effective in the very important work of your mission, I applaud," said Cramer. "If there's anything we should be doing to help codify any of that, please be open with us on that. And I would really, really want to be part of that solution."

Cramer pivoted to discuss the efficiency of jurisdictional determinations for Waters of the United States (WOTUS). The Trump administration is in the midst of finalizing its proposed WOTUS rule, and Cramer hosted the first national listening session in Bismarck last December with administration officials. Overregulation and jurisdictional ambiguity are longstanding issues with previous WOTUS regulations, and Cramer repeatedly criticized the jurisdictional determination process. He asked Telle, "as we get to finalizing a rule […] how can we help landowners know intuitively, intellectually, obviously, what is not a Waters of the United States? Is that an area of opportunity for us in efficiencies?"

Telle responded, "I think you're touching on something critically important that we're hard at work on it as part of our Building Infrastructure, Not Paperwork initiative. On March 12th of last year, I'll say we've already got a walking start because the [Sackett v. EPA] decision that was rendered by the Supreme Court in 2023 was the law of the land, and on March 12 of last year, we issued interim guidance to our regulators, throughout our enterprise, about what it meant to follow the law as it stands. […] Even when we have a new law, a new rule, we still rely on the employees in General Graham's enterprise, whether it's at the Huntington District, or the Portland District, or the St. Paul District, we rely on our regulators, who are wonderful people, to interpret the law.

"And quite often I've heard frustration from members of Congress, from the public, about the inconsistency they see across the landscape," continued Telle. "If it's the law, it ought to be interpreted by the U.S. Army Corps of Engineers employees consistently, and it ought to be in keeping with the law. And so we began the process in the fall of a very rapid acquisition of the latest technology to make sure that we can use the tools available that we have, the never-before-seen-in-human history data that we have, to tie geographic features about what a water of the United States is back to the law, all the way back to the Clean Water Act of 1972, and through all the decisions that have come ever since. If we can provide this tool to our regulators, […] we can take subjectivity out of the equation."

Cramer highlighted the lack of clarity, explaining "The diversity of ideas out there in philosophies-even probably among the regulators-is a bit of a problem. That's what presents a lack of clarity to the developer, a landowner, [or] an engineering firm in Bismarck […] How about the determination by the developer or the landowner themselves to see what's obviously not a wetland?"

Telle affirmed Cramer's desire for WOTUS jurisdiction clarity, saying, "What we're trying to do would enable the public to have transparency in real time about what is and what is not a Water of the United States. These decisions should be made instantly with the technology that we have today. This is complicated by the legal wrangling that's happened over the decades, but I'm committed to looking at what the law says today and providing technology that provides clarity in real time to the public."