Jessica Karmasek Jan. 14, 2016, 10:25am


WASHINGTON (Legal Newsline) - The U.S. House of Representatives on Wednesday approved a measure that would effectively kill the Environmental Protection Agency’s new “Waters of the United States” rule.

The House voted 253-166, passing a resolution of disapproval to nullify the rule, which extends the federal agency’s authority to all bodies of water, no matter the size or frequency. Only one Republican -- U.S. Rep. Chris Smith of New Jersey -- voted against the measure.

The rule was published in the Federal Register June 29. The EPA and the U.S. Army Corps of Engineers began enforcement Aug. 28. However, a federal appellate court in October issued a decision that stops the EPA and Corps from enforcing the rule.

Hours before the House vote, House Speaker Paul Ryan, R-Wis., slammed the agency’s rule in an op-ed in the Omaha World-Herald, saying it is “another example of Washington bureaucrats sticking their nose where it doesn’t belong.”

“If they can’t control the water on their land, farmers, ranchers and cattlemen can’t grow their crops or feed their livestock,” Ryan wrote. “And precisely because farmers and ranchers -- and their elected representatives -- know the needs of their land best, the states have long had primary authority over water that flows within their boundaries.”

Ryan pointed to a Wyoming farmer who was fined $37,500 per day for building a pond on his property to provide water for his horses, despite having obtained permits from the state.

“And this could be just the beginning,” the Speaker wrote. “Small businesses could pay steep fees just to use water on their property or to get high-priced lawyers to help them navigate multiple permitting processes.”

But the U.S. Court of Appeals for the Sixth Circuit’s Oct. 9 ruling blocking the EPA and Corps from implementing the WOTUS rule nationwide provides “hope,” Ryan said.

Two out of three Sixth Circuit judges sided with the petitioners -- Ohio, Michigan, Tennessee, Oklahoma, Texas, Louisiana, Mississippi, Georgia, West Virginia, Alabama, Florida, Indiana, Kansas, Kentucky, South Carolina, Utah, Wisconsin and the North Carolina Department of Environment and Natural Resources -- saying they demonstrated “a substantial possibility of success on the merits of their claims.”

“Petitioners first claim that the Rule’s treatment of tributaries, ‘adjacent waters,’ and waters having a ‘significant nexus’ to navigable waters is at odds with the Supreme Court’s ruling in Rapanos, where the Court vacated the Sixth Circuit’s upholding of wetlands regulation by the Army Corps of Engineers,” the majority wrote in its six-page decision. “Even assuming, for present purposes, as the parties do, that Justice Kennedy’s opinion in Rapanos represents the best instruction on the permissible parameters of ‘waters of the United States’ as used in the Clean Water Act, it is far from clear that the new Rule’s distance limitations are harmonious with the instruction.

“Moreover, the rulemaking process by which the distance limitations were adopted is facially suspect.”

The rule extends the EPA and Corps’ regulatory jurisdiction to an untold number of small bodies of water, including roadside ditches and short-lived streams or any other area where the agencies believe water may flow once every 100 years.

Thirty-one states and state agencies have challenged the legality of the regulation, arguing it violates the Clean Water Act, the Administrative Procedure Act and the U.S. Constitution. They argue it also usurps their primary responsibility of management, protection and care of intrastate waters and lands.

The National Association of Manufacturers also has challenged the rule, filing a lawsuit against it in July.

The latest action by the House utilized the Congressional Review Act, a seldom-used procedure that allows Congress to repeal major regulations. The bill now goes to President Barack Obama’s desk.

The White House already has threatened to veto the resolution, following its passage in the Senate.

“The agencies’ rulemaking, grounded in science and the law, is essential to ensure clean water for future generations, and is responsive to calls for rulemaking from the Congress, industry, and community stakeholders as well as decisions of the U.S. Supreme Court,” it said in a Nov. 3 statement. “The final rule has been through an extensive public engagement process.”

If enacted, the White House argues the resolution would result in more confusion, uncertainty and inconsistency.

“Clarifying the scope of the CWA (Clean Water Act) helps to protect clean water, safeguard public health, and strengthen the economy,” it said.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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Organizations in this Story

U.S. House of Representatives

Washington, DC 20515

U.S. Environmental Protection Agency (EPA)
1200 Pennsylvania Ave NW
Washington, DC 20460

White House
1600 Pennsylvania Avenue Northwest
Washington, DC 20500

National Association of Manufacturers
733 10th St NW
Washington, DC 20001

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