The House Committee on Transportation and Infrastructure voted 36 to 22 to approve a bipartisan bill that requires the withdrawal of the proposed rule known as Waters of the United States (WOTUS) Wednesday.
Proposed by the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers in October, the WOTUS rule, “Definitions of Waters of the United States Under the Clean Water Act,” quickly ignited controversy and drew diverse points of view from the farming community and environmental organizations.
The bill, Regulatory Integrity Protection Act (H.R. 1732), introduced Monday, April 13 by co-sponsors Transportation Committee Chairman Bill Shuster, R-Pa, and Bob Gibbs, R-Ohio, Chairman, Water Resources and Environment Subcommittee, would not only stop the proposed and forthcoming final rule, but would also require the agencies to develop a new proposed rule.
The final rule has not yet been issued, but on April 3, EPA submitted the draft to the Office of Management and Budget (OMB) for Review. The docket, EPA-HQ-OW-2011-0880, solicited more than 1 million comments.
“This bill gives the agencies another chance to do what they should have done in the first place—work together with states, local governments and stakeholders to actually develop a rule that provides clarity, maintains a balanced regulatory approach, and considers potential economic impacts on Americans,” Shuster said in a statement.
Regarding the WOTUS proposal, Gibbs noted that WOTUS would “jeopardize the workings of the Clean Water Act,” and “will a negative impact on water quality.”
In developing the new rule, H.R.1732 requires consultation with state and local officials on defining the term ‘waters of the United States’ as used in the Federal Water Pollution Control Act. The bill specifies that the rule protect the primary rights and responsibilities of the States for both water quality and for control over development and use of land and water resources.
The bill provides for protection of the authorities of State and local governments and rights of private property owners over natural and man-made water features. During the markup of H.R. 1732, Representative Jared Huffman, D-CA, offered an amendment to insert after “water features” the following: ‘including the continued recognition of Federal deference to State primacy in the development of water law, the governance of water rights, and the establishment of the legal system by which States mediate disputes over water use.’ The amendment was approved by voice vote.
During the markup process, Ranking Member Peter A. DeFazio, D-OR, said that H.R. 1732 was more than somewhat premature, noting that he would like to see how EPA was clarifying the proposed rule. Pointing out that problems were inherent in the early interpretations of the Clean Water Act, he said “The Bush guidance was opposed by everybody, from the farm bureau to the wildlife federation.”
Representative Grace F. Napolitano, D-CA, said she opposed another attempt to scrap the Clean Water Act, and that waiting twelve years and spending more money is “not only reckless, it is asinine.” The ephemeral streams are drying up in the West, she said, and 117 million people depend on them for drinking water. Further, Napolitano said EPA Administrator McCarthy pledged to work with them once the proposal is final. “Let’s protect the water we have left,” Napolitano urged.
Shuster interjected that the National League of Cities, the National Association of Counties and others have major problems with the WOTUS proposal, “The list goes on and on,” he added and pointed out that 32 states vocalized disapproval as well, and the Committee should move forward with the bill.
Gibbs objected to the unclear points in the proposed rule, and the agencies’ explanation of applying the rules on a case-by-case basis. “Go back, rework, do it right,” Gibbs pleaded.
Napolitano questioned the expense of the duplicate effort required of a new proposal. Shuster said the proposed rule would cost the economy billions. Noting that the agriculture and home building industries would especially be impacted, Shuster said, “Anybody that moves dirt would be affected in a negative way.”
Representative Eleanor Norton Holmes, D-DC, called attention to the small streams which feed the larger bodies of water such as the Potomac River for drinking water. She offered an amendment to H.R. 1732 which said, “Nothing in this Act affects the authority of the Administrator of the Environmental Protection Agency or the Secretary to protect the quality of surface water available for public water supplies.”
Gibbs responded that individual state environmental protection programs regulate small streams, and characterized the Norton amendment as “a backdoor way to broaden federal jurisdiction.” Referring to H.R. 1732, Norton countered, “A preemptive strike against clean water is the height of ignorance.” The Norton amendment failed, 33 to 23.
H.R. 1732 also requires the new proposed rule to consider the public comments on the “Definition of ‘Waters of the United States’ Under the Clean Water Act” and any final rule based on such proposed rule. Also, to be considered are the March 2014, 408-page, “Economic Analysis of Proposed Revised Definition of Waters of the United States,” and the January 2015 66-page report “Connectivity of Streams & Wetlands to Downstream Waters: A Review & Synthesis of Scientific Evidence.”
The OMB review is the last step before the rule is finalized. After possible changes to the rule and publication in the Federal Register, the rule would become official. EPA has indicated the final rule will be released this spring.
In their April 6 blog, “Your Input is Shaping the Clean Water Rule,” EPA Administrator Gina McCarthy and Assistant Secretary of the Army (Civil Works) Jo-Ellen Darcy said that after more than 400 meetings across the country and over one million comments, “We’ve worked hard to reach a final version that works for everyone—while protecting clean water.”
The blog’s key points and changes considered include: better defining how protected waters are significant; defining tributaries more clearly; providing certainty in how far safeguards extend to nearby waters; being specific in the protection of the nation’s regional water treasures; focusing on tributaries, not ditches; preserving Clean Water Act exclusions and exemptions for agriculture; and maintaining the status of waters within municipal separate storm sewer systems.
H.R. 1732, as amended, “Regulatory Integrity Protection Act of 2015,” would require passage by the U.S. House of Representatives and the U.S. Senate and the President’s signature to become law.