EPA, Corps Would Have 30 Days to Withdraw Jurisdiction Rule Under Draft House Bill

By Amena H. Saiyid

April 10 — The Environmental Protection Agency and the U.S. Army Corps of Engineers would have 30 days to withdraw the joint rule clarifying Clean Water Act jurisdiction over the nation's waters and wetlands, according to a draft House bill obtained April 10 by Bloomberg BNA.

Sponsored by Reps. Bill Shuster (R-Pa.) and Bob Gibbs (R-Ohio), the draft “Regulatory Integrity Protection Act” attempts to provide a road map for how the agencies would rewrite the rule based on the million-plus comments received on the proposed rule, its economic analysis and the scientific connectivity study underpinning it.

The bill would require the agencies to consult with state and local officials as well as stakeholders on how to define waters of the U.S.

It also would require the agencies to write a proposed rule that specifically identifies those waters covered and excluded by the Clean Water Act that are consistent with the U.S. Supreme Court rulings in 2001 and 2007 on the reach of jurisdiction.

Shuster is chairman of the House Transportation and Infrastructure Committee, while Gibbs is chairman of its Subcommittee on Water Resources and the Environment.

Bill Markup Slated for April 15 

Committee spokesman Justin Harclerode confirmed to Bloomberg BNA that the bill will be introduced April 13, with a full committee markup planned for April 15.

The bill comes a week after the EPA and the corps sent the draft final clean water rule, also known as the waters of the U.S. rule, to the White House for interagency review.

Coverage under the Clean Water Act would mean that discharge of pollutants or dredging and filling of wetlands and waters would require permits. The rule's coverage of waters and wetlands also would require compliance with oil spill prevention programs, as well as state water quality certification of federal projects.(RIN 2040- AF30).

In 2014, Gibbs, Shuster and Rep. Steve Southerland (R-Fla.) sponsored the Waters of the United States Regulatory Overreach Protection Act (H.R. 5078), which would have stopped the EPA's rulemaking altogether. That bill passed the House but was never taken up by the then-Democratic-controlled Senate.

Shuster and Gibbs have repeatedly expressed their frustration with the EPA and the corps for proposing a rule without consulting state or local officials.

Bill Would Require State, Local Input 

Under this bill, Gibbs and Shuster want to give state and local officials the opportunity to participate and provide input into the rulemaking. They also want to allow representatives of farming, mining, ranching, forestry and construction groups that oppose the current rulemaking to be able to recommend to the agencies how the new proposed rule could minimize potential adverse impacts to their industries.

To that end, the bill upon enactment would give the EPA three months to initiate consultations with state and local officials as well as members of the public and private groups representing “regional, economic, and geographic perspectives in the United States, which could potentially be affected, directly or indirectly, by the new proposed rule.”

Following the consultation, the agencies would be given another three months to publish the new proposed rule.

Farm Bureau Still Evaluating Legislation 

“We are still evaluating this legislation and aren't sure if we will support it yet, but it does accomplish one principle concern we have, which is withdrawing this proposed regulation,” Don Parrish, senior regulatory relations director for the American Farm Bureau Federation, told Bloomberg BNA April 10. Parrish is an outspoken critic of the existing rulemaking process.

Jon Devine, senior water attorney for the Natural Resources Defense Council, was surprised by the bill's language.

“The bill basically says, ‘talk to folks you’ve already talked to at length, consider factors you’ve already looked at for years, and develop a rule as you already did, but don’t do it now, and don’t do it for a while,' ” Devine told Bloomberg BNA in an April 10 e-mail.

The Senate Environment and Public Works Committee is in the process of writing its own bill that would direct the agencies to rewrite the rule using another set of criteria.

To contact the reporter on this story: Amena H. Saiyid in Washington at asaiyid@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com