Senate Environment and Public Works (EPW) Committee held a hearing today to consider the nomination of Lee Zeldin to serve as Administrator of the Environmental Protection Agency (EPA). If confirmed, Zeldin would be at the forefront of President Donald Trump's promises to roll back energy and environmental regulations to unleash American energy development and production.
Zeldin served in the Army from 2003 to 2007, then began his service in the Army Reserve, where he achieved the rank of lieutenant colonel. He was elected to the U.S. House of Representatives in 2015
U.S. Senator Kevin Cramer (R-ND) questioned Zeldin on the role of cooperative federalism, particularly as it relates to the Waters of the United States (WOTUS) and the 2023 Supreme Court decision in Sackett v. EPA. He began by asking Zeldin if he would describe the Sackett majority opinion "as prescriptive or ambiguous as it comes to the definition of a federally jurisdictional water." Zeldin responded that "it was clear and prescriptive."
Cramer then asked Zeldin about how the EPA would handle a post-Sackett WOTUS rulemaking under his leadership.
"There's one previous definition, where the entire state of North Dakota was basically a federal wetland," said Cramer. "We're a semi-arid state, with badlands and big prairies. Should you be confirmed, it would be really good if the administrator took this decision [Sackett], and the legislative history behind it, and start a rulemaking process post-Sackett with the assumption that states have primacy and primary responsibility for water within their states, not the federal government. How do you intend to approach that?"
"It's important that corners aren't cut where durability is sacrificed," answered Zeldin. "Laws are written by Congress, and there are cases that have come out from the Supreme Court that provide the EPA with clear guidance on how we must do our job under the law. It is important that when you are going back to your home state and you're speaking to your farmers, that you are able to, with confidence, be able to explain to them that the federal government is doing our part so they can define what Waters of the U.S. are without having them to go hire an attorney or someone else and pay a lot of money to ensure compliance."
Cramer finished his questioning by asking Zeldin about the existing burden on landowners to seek WOTUS jurisdictional determinations from the EPA.
"Can we presume that on the very obvious, simple cases that the landowner or the developer already knows the law, and doesn't need to seek permission to do what they want to do?" asked Cramer.
"We face a reality where many farmers don't know whether or not their land, not just farmers, obviously, but a lot of people don't know whether or not their land has Waters of the U.S. on it," responded Zeldin. "And, I would say that that is a failure on the part of the federal government. You should be able to go to your landowners and they should be able to, with confidence, be able to tell you without having to ask questions, whether or not Waters of the U.S. are on their property."
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