Legislation to derail EPA’s controversial “Waters of the U.S.” proposed rule easily won passage through the House of Representatives in September, though the bill has little chance of being brought before the Democratic-controlled Senate.
Sponsored by Florida Republican Steve Southerland, the “Waters of the United States Regulatory Overreach Protection Act” (H.R. 5078) would prohibit EPA and the U.S. Army Corps of Engineers from implementing, adopting or enforcing a rule proposed in April to clarify the regulatory scope of the Clean Water Act. The bill would also ban adoption of an earlier 2012 guidance on Clean Water Act applicability, and bar the agencies from advancing “any substantially similar proposed rule or guidance” in the future. Instead, the bill would direct EPA and the Corps to consult with state and local officials with the goal of reaching “consensus” on recommendations for a new Clean Water Act regulatory proposal.
Congressional Republicans have consistently criticized the April proposal, and the 2012 guidance before it, as examples of regulatory overreach that could expand the Clean Water Act to cover isolated wetlands. Obama Administration officials and congressional Democrats have countered by saying the proposed rule would simply restore the Clean Water Act’s scope to what it was before a series of court decisions limited its application to streams, tributaries and wetlands with a “significant nexus” to navigable waters.
Politics had much to do with the timing of the House’s vote, as Republican leaders hoped to drive home an anti-regulatory message before the November elections while also forcing moderate House Democrats to choose sides on the controversial issue. Thirty-five House Democrats ultimately joined all but one House Republican in supporting the bill, which passed 262 – 152.
Senate Majority Leader Harry Reid (D-Nev.) has no plans to bring H.R. 5078 to the Senate floor during a post-election lame duck session, but a Republican takeover of the chamber following the elections could put a similar bill on a path to passage early next year.
AMWA did not take a position on H.R. 5078, but the association continues working with its members to develop comments on the “Waters of the U.S.” proposed rule. AMWA will submit its comments to EPA later this year.