Just released on 20 January 2016 by the Congressional Research Service: EPA and the Army Corps' Proposed "Waters of the United States" Rule: Congressional Response and Options by Claudia Copeland.
Download CRS_WOTUS_Congress_Response_29Dec2016
Summary
On May 27, 2015, the Army Corps of Engineers (the Corps) and the Environmental Protection Agency (EPA) finalized a rule revising regulations that define the scope of waters protected under the Clean Water Act (CWA). Discharges to waters under CWA jurisdiction, such as the addition of pollutants from factories or sewage treatment plants and the dredging and filling of spoil material through mining or excavation, require a CWA permit. The rule was proposed in 2014 in light of Supreme Court rulings in 2001 and 2006 that created uncertainty about the geographic limits of waters that are and are not protected by the CWA. The rule, which becomes effective August 28, 2015, replaces EPA-Corps guidance that has governed permitting decisions since the Court’s rulings.
According to EPA and the Corps, their intent in proposing the rule was to clarify CWA jurisdiction, not expand it. Nevertheless, the rule has been extremely controversial, especially with groups representing property owners, land developers, and agriculture, who contend that it represents a massive federal overreach beyond the agencies’ statutory authority. Most state and local officials are supportive of clarifying the extent of CWA-regulated waters, but some are concerned that the rule could impose costs on states and localities as their own actions become subject to new requirements. Most environmental advocacy groups welcomed the proposal, which would more clearly define U.S. waters that are subject to CWA protections, but beyond that general support, some in these groups favor an even stronger rule. The final rule contains a number of changes to respond to criticisms of the proposal, but the revisions may not satisfy all critics of the rule.
Because of controversies over the rule, some in Congress favor halting EPA and the Corps’ current approach to defining “waters of the United States.” To do so legislatively, at least four options are available and are reflected in bills in the 114th Congress.
The Congressional Review Act. If Congress passes a joint resolution disapproving a covered rule under procedures provided by the act, and the resolution becomes law, the rule cannot take effect or continue in effect. The agency may not reissue either that rule or any substantially similar one, except under authority of a subsequently enacted law. The Senate and House have passed such a joint resolution (S.J.Res. 22), but President Obama vetoed it on January 19.
Appropriations bill limitations. A provision in an appropriations bill can be a mechanism to block or redirect an agency’s course of action by limiting or preventing agency funds from being used for the rule. Bills with such limitations were reported in the Senate and House in 2015, but the FY2016 Consolidated Appropriations Act (P.L. 114-113) contained no such provisions.
Standalone targeted legislation. Other legislation can take several forms, such as a bill similar to limits in an appropriations bill to prohibit EPA and the Corps from finalizing, implementing, or enforcing the proposed rule. Another approach could be legislation to address substantive aspects of the rule that have been criticized. The House has passed one such bill (H.R. 1732). Similar legislation was reported in the Senate, but failed to advance (S. 1140).
Broad amendments to the Clean Water Act. Legislation to affirm or clarify Congress’s intention regarding CWA jurisdiction would have broad implications for the CWA, since questions of jurisdiction are fundamental to all of the act’s regulatory requirements.
These options and related legislative activity are discussed in this report. 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.
And now....
Conclusion
This report has discussed four legislative options that Congress could consider to halt or redirect EPA and the Corps’ “waters of the United States” rule: the Congressional Review Act, appropriations bill limitations, standalone legislation, and broad amendments to the Clean Water Act. Each option faces a steep path to enactment.
Finally, it is noteworthy that several of the options—a CRA resolution, appropriations bill limitations, and some current forms of standalone legislation—would not only block EPA and the Corps from adopting, implementing or enforcing the 2015 rule, but also would prohibit them from developing a similar rule. As described previously, blocking both the rule and future action (e.g., H.R. 594, H.J.Res. 59, and S.J.Res. 22), limiting the agencies through appropriations (e.g., H.R. 2028, H.R. 2822, and S. 1645), or requiring the agencies to restart the rulemaking process (e.g., H.R. 1732 and S. 1140) would leave in place the status quo, with determinations of CWA jurisdiction being made pursuant to existing regulations, non-binding agency guidance issued in 2003 and 2008, and jurisdictional determinations done by 38 separate Corps district offices that in many cases require time-consuming, case-specific evaluation by regulatory staff.
As described above, on October 9, a federal appeals court placed a nationwide stay on the clean water rule, pending further action, including the need to determine the court’s own jurisdictional authority. The effect of the court’s order is to achieve, at least temporarily, the goal of some of the legislation discussed in this report—to leave the status quo in place for determinations of CWA jurisdiction. Many critics of the new rule endorse that result. Other critics favor passage of legislation that would provide direction to EPA and the Corps to develop a different rule, because legal challenges to the 2015 rule may take years to resolve.
Stakeholder groups involved in the “waters of the United States” issue find agreement on few aspects of the issue. Some support the final rule, some prefer the status quo rather than a rule that they consider unclear, and some have concerns with the rule but do support clarifying the extent of CWA-regulated waters. 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.
Enjoy!
"If the blind lead the blind, both shall fall into the ditch." -- Matthew 15:14
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