House Passes Bill Forcing Withdrawal of Rule To Clarify Clean Water Act Jurisdiction

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By Matthew Berger

May 12 —The House passed a bill May 12 that would force the withdrawal of a rule intended to clarify the jurisdiction of the Clean Water Act.

The vote was 261-155.

The bill's supporters said it is intended to stop what they considered to be regulatory overreach by the Obama administration by subjecting to Clean Water Act protections bodies of water that had not previously been covered.

“This rule would open up just about any water or wet area to federal regulation,” Rep. Bill Shuster (R-Pa.), who co-sponsored the legislation with Rep. Bob Gibbs (R-Ohio), said in floor debate on the Regulatory Integrity Protection Act (H.R. 1732) May 12. “With this bill we have a chance to tell the administration, EPA and the corps to do it right this time.”

The bill would force the Environmental Protection Agency and U.S. Army Corps of Engineers to withdraw a rule they jointly proposed to clarify which waters are considered “waters of the U.S.” under the Clean Water Act and therefore subject to federal protections, including dredge-and-fill permitting requirements. The rule would have to be withdrawn within 30 days of the bill's enactment, and the agencies would have to develop a new rule that relies on further consultation and comment from organizations on all sides and state and local officials. The bill also specifically lists those waters covered and not covered by the Clean Water Act.

The bill's requirements are unlikely to be enacted, however, because the White House has said it will veto the legislation if it is passed.

The draft final version of the agencies' rule (RIN 2040-AF30) is currently under review at the White House Office of Management and Budget.

Debate Continues 

Congressional Republicans criticized the proposed version of the rule, but EPA officials have repeatedly said that the final draft is significantly revised based on input from interested parties, including state and local officials, farm groups and developers.

Democrats have questioned the necessity of passing legislation that would force the withdrawal of a rule no one in Congress had yet seen.

That debate continued May 12.

Rep. Peter DeFazio (D-Ore.) questioned the basis of Republicans' claims about what the rule would and would not do.

“We're being asked to vote on killing something that nobody has read,” DeFazio said in the debate. “I would not rise to support the rule as initially opposed,” he said, calling it “garbled” and “raising more questions than it answered,” but said he needed to see the revised draft sent to OMB before supporting a bill to withdraw it.

“If the agencies were going to change it, they would have gone back and opened up the comment period [before sending the rule to OMB], but it is not significantly changed,” Shuster countered.

DeFazio said if the final rule is something members of Congress do not like, there are other courses of action to oppose the rule later on.

He said he has already drafted a joint congressional resolution of disapproval for the rule, and that Congress could seek its withdrawal through the Congressional Review Act, through which Congress can nullify regulations after they are issued.

Gibbs said waiting to act until after the rule is finalized is not an option since the president would have to sign a CRA challenge.

Contradiction With Other Legislation 

Citing the bill's acronym, DeFazio said the bill is rightly called the RIP Act. “It will rest in peace as it will be inevitably vetoed, even if the Senate takes it up—and I don't think they will,” he said.

He and Rep. Grace Napolitano (D-Calif.) said the bill also would be in contradiction to a policy rider included in an energy and water appropriations bill passed a couple weeks ago, which would prohibit new rules on CWA jurisdiction altogether.

The White House, however, has said President Obama will likely veto that appropriations bill as well.

Advocates Speak Out on Bill 

Farming groups fear the final rule would mean ditches and irrigation canals could be regulated under the law. They want the rulemaking process to take a couple of steps back to allow for more comment and collaboration.

“We believe it is necessary that the agencies re-propose the rule and allow for comment from those within the regulated community such as NCGA,” association president Chip Bowling said in a statement May 11.

On the other hand, environmental groups hope that the final rule does expand EPA authority. In a letter to Congress May 11, League of Conservation Voters president Gene Karpinski said organizations on all sides of the issue wanted the agencies to develop a clarifying rule following Supreme Court decisions that caused confusion as to which waters fell under the Clean Water Act.

“Without these [CWA] critical protections, the millions of acres of wetlands and thousands of miles of streams that contribute to the drinking water of one in three Americans have been left vulnerable to toxic dumping and destruction,” he wrote.

To contact the reporter on this story: Matthew Berger in Washington at mberger_ic@bna.com.

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