Hill Republicans Aim to Curtail Water Rule Despite Litigation

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By Amena H. Saiyid, Dean Scott and Rachel Leven

Axing a rule clarifying the Clean Water Act’s scope of jurisdiction remains a priority for congressional committee chairmen overseeing federal water pollution programs, according to interviews by Bloomberg BNA.

But, they have yet to decide their approach.

In the previous session, Republicans tried unsuccessfully to return the Clean Water Rule (RIN:2040-AF30), or waters of the U.S. (WOTUS) as it is commonly known, to the Environmental Protection Agency and the U.S. Army Corps of Engineers for a rewrite. With the election of Donald Trump, the Republican-controlled Congress has a renewed interest and better chances in addressing WOTUS after Trump singled out this rule for roll back during his campaign.

Sen. John Barrasso (R-Wyo.), the newly anointed chairman of the Senate Environment and Public Works Committee, “will address WOTUS,” Mike Danylak, the committee spokesman, told Bloomberg BNA.

Danylak stopped short of saying whether Barrasso would reintroduce the Federal Water Quality Protection Act (S. 1140), which fell three votes short of obtaining the 60 votes necessary to invoke cloture and allow the Senate to consider the bill in November 2015.

Rep. Bill Shuster (R-Pa.), who was renamed the chairman of the House Transportation and Infrastructure Committee, also didn’t close the door on reintroducing the Regulatory Integrity Protection Act (H.R. 1732). The House passed the act in May 2015 on a 261-155 vote, but the Senate never considered because it was planning to take up Barrasso’s legislation.

Rollback a ‘High Priority’

“Well it’s going to be something that I’m confident and I know it’s a high priority for a lot of us,” Shuster told Bloomberg BNA. “So there’ll be something fairly quickly, but the committee’s not even stood up yet, so we have a couple of weeks before that happens.”

The House transportation committee oversees the EPA Office of Water and the corps’ Civil Works Program that jointly wrote the water rule in June 2015. Upon its release, the rule was challenged by 31 states and dozens of groups representing business, agriculture, manufacturing and property rights. Challengers say the EPA and the corps’ ignored Supreme Court rulings in writing a rule that is too broad and oversteps state authority to regulate their waterways.

Sen. John Thune (R-S.D.), who was named chairman to the Senate Commerce, Science and Transportation Committee, told Bloomberg BNA that rollback of the WOTUS rule remains a “pretty high” priority.

“I would say that was the number one issue in terms of regulatory relief and what the pathway might be in order to get that rule back,” Thune said, alluding to his discussion with Scott Pruitt, Trump’s nominee to head the EPA.

Shuster, Barrasso as well as a number of Senate Republicans told Bloomberg BNA that rolling back the WOTUS rule is a priority, but the rollback is complicated by the fact that the courts are reviewing the rule.

Litigation Complicating Rollback

“There is a lawsuit going on right now,” said Barrasso when asked whether he would reintroduce his legislation in the 115th Congress, and declined to speculate further on how he would attempt to roll back the rule.

Shuster said the transportation committee is going to look at what it can do versus what steps the administration can take.

“My understanding is that it’s in some litigation, so it may require some congressional effort to assist the administration—to move something forward,” Shuster said. So we’re just, we’re studying that, trying to figure it all out. But it’s in litigation, which complicates it a little bit.”

The U.S. Court of Appeals for the Sixth Circuit is currently reviewing the legality of the water rule that remains stayed nationwide. At the same time, the U.S. Supreme Court is expected to decide Jan. 13 whether it will accept the petition challenging the Sixth Circuit’s decision to establish itself as the court to hear all lawsuits filed against the rule.

Thune emphasized that there’s a “tremendous amount of interest in addressing that as quickly as possible” but it’s a matter of figuring out what is doable and proceeding accordingly.

Republican staff for both Shuster and Barrasso reiterated the chairmen’s commitment to address the water rule, as did the spokesman for House Speaker Paul Ryan (R-Wis.).

“Clearly, people hate WOTUS—the rule” the spokesperson said, adding that the House would consider legislating since rolling back the rule through the Congressional Review Act is not an option in this instance. The CRA would only apply to rules that were published after June 2016.

“Chairman Shuster continues to oppose the Obama Administration’s poorly developed WOTUS rule, will remain open to options for preventing it from going into effect, and looks forward to working with his colleagues in the House and Senate to address the issue if necessary,” Justin Harclerode, transportation committee spokesman, told Bloomberg BNA.

Harclerode said Shuster will consider all options, which could include a reintroduction of H.R. 1732, which he had sponsored with then chairman of the Water Resources and Environment Subcommittee, Bob Gibbs (R-Ohio).

Danylak also pointed to the statement that the Senate committee released outlining Barrasso’s oversight plans for the 115th Congress. “We will also work to pass badly needed reforms to problematic EPA regulations issued over the past eight years, as well as finding ways to better empower rural communities by addressing aging roads, bridges, and dams,” the statement said.

To contact the reporters on this story: Amena H. Saiyid in Washington at asaiyid@bna.com, Dean Scott in Washington at dscott@bna.com and Rachel Leven in Washington at rleven@bna.com

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

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