WOTUS Course Changes Charted

Congressional Action on Waters of US Rule Faces Uphill Battle in 2016

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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The waters of the United States rule already has taken effect despite the national stay that is in place. This means the rule is not being implemented, pending the court proceedings. (DTN/The Progressive Farmer file photo by Dan Miller)

OMAHA (DTN) -- Congressional options for changing course on the waters of the United States rule outside of court may be few for the remainder of President Barack Obama's final term, according to a new Congressional Research Service report.

Most recently, the president on Jan. 19 vetoed a joint resolution of disapproval of the rule (S.J. Res. 22) based on the Congressional Review Act. The legislation was passed by both the U.S. House of Representatives and the U.S. Senate. Meanwhile, on the legal side, it could be some time before the U.S. Sixth Circuit Court of Appeals in Cincinnati, Ohio, determines whether it has jurisdiction to hear multiple legal challenges to the rule that agriculture and other industries fear will expand federal jurisdiction of the Clean Water Act.

CRS said chances of success were minimal in trying to change the law through a resolution of disapproval in the Congressional Review Act.

"In the nearly two decades since the CRA was enacted, only one resolution has ever been enacted," CRS said. "The path is particularly steep if the president opposes the resolution's enactment, as is the case with a resolution disapproving the EPA-Corps rule to define 'waters of the United States...'"

The report prepared for members of Congress said Congressional action to replace or prevent the rule from taking effect faces an uphill battle in 2016.

"Each option faces a steep path to enactment, because President Obama likely would oppose legislation to halt or weaken a major regulatory initiative of the administration such as the 'waters of the United States,' rule," CRS said.

In addition to the already-failed attempt to stop the rule through the Congressional Review Act, CRS said Congress could pass bills limiting or stopping funds necessary to implement the new rule, draft standalone targeted legislation, or pass amendments to the Clean Water Act.

Both the House and Senate reported bills in 2015 aimed at limiting or preventing federal agency funds from being spent on the rule. However, the 2016 Consolidated Appropriations Act -- or the budget bill -- did not include such provisions, according to CRS.

LOST OPPORTUNITY

When a new funding bill passed Congress with little or no opposition at the end of 2015, the CRS said it may have been a lost opportunity to challenge the rule.

"In comparison to a CRA resolution of disapproval, addressing an issue through an amendment to an appropriations bill may be considered easier, since the overall appropriations bill to which it would be included would presumably contain other elements making it 'must-pass' legislation, or more difficult for the president to veto," CRS said in its report.

The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers issued the final rule on May 27, 2015, prior to enactment of any fiscal-year 2016 appropriations bills.

"A funding prohibition included in an FY2016 appropriations bill would not halt finalizing the rule, but it still could attempt to block funds for implementation," CRS said. "So far, however, congressional opponents of the rule have not succeeded in using appropriations measures to halt or delay it."

A number of other legislative attempts at turning back or changing the rule have so far been unsuccessful.

Bills introduced include those aimed at forcing EPA and the Corps to consult with state and local officials on Clean Water Act jurisdiction issues and to develop a report on the results of those consultations. Another bill would prohibit the issuance of unobligated funds from the office of the EPA administrator until the rule is withdrawn.

The Regulatory Integrity Protection Act passed by the House on May 12, 2015, would require EPA and the Corps to develop a new rule after taking into consideration public comments on the 2014 proposed rule.

The Senate Environment and Public Works Committee passed the Federal Water Quality Protection Act in June. On Nov. 3, 2015, the Senate voted 57-41 to take up the measure, falling short of the 60 votes needed to overcome a filibuster.

That act also would require the agencies to develop a new rule, taking into consideration public comments on the 2014 proposal.

Senate Bill 1178 would require the agencies to establish a commission with members appointed by the agencies and Congress. The commission would be tasked with developing criteria for defining whether a waterbody or wetland has a "significant nexus" to traditional navigable waters.

CRS said Congress would face technical challenges to creating a new CWA rule.

"For Congress to legislate solutions and codify remedies in the CWA is a challenge requiring technical expertise that legislators generally delegate to agencies and departments, which implement laws, but one that many in Congress believe the agencies failed to meet in this case," the CRS report said.

"...The legislative activity in the Senate on S.J. Res. 22 and S. 1140 suggests that even with the final rule on hold nationwide for now and judicial proceedings that could continue for quite some time, there is continuing interest in Congress to change the agencies' course of action."

Read the CRS report here: http://tinyurl.com/…

Todd Neeley can be reached at todd.neeley@dtn.com

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(AG/BAS)

Todd Neeley