Congress appears to be stepping up to the plate to kill the Environmental Protection Agency’s and Army Corps of Engineers’ water rule (known as the “waters of the United States” or WOTUS rule). Lawmakers just need to bring it home by sending legislation to the president.
In doing so, Congress will be protecting Americans from environmental regulatory overreach that is an attack on property rights and bad for the environment.
The rule has a number of problems. Among them:
- It centralizes water policy in Washington, even though the Clean Water Act clearly protects the role and responsibility of states. States need to play a critical role because they are in the best position to determine the environmental needs of their waters.
- It is expansive in what the agencies consider to be waters that can be regulated by the federal government (i.e., jurisdictional waters), covering almost any type of water, from certain ditches to “streams” that are usually just dry land but hold water after heavy rain.
- By deeming more waters “jurisdictional,” property owners will be required to secure far more permits for ordinary activities such as farming and building homes. Since the costs to secure permits can be excessive, property owners may simply choose not to engage in some of the activities at all.
- The rule is so vague that property owners will be “walking on eggshells” and may be wise to assume that unless expressly included in the agencies’ narrow (and limited) exemptions from regulation, a water is a jurisdictional water.
Legislators appear to be well aware of the major problems with the rule. The House has already passed legislation killing the WOTUS rule and requiring the agencies to start again, and the Senate has queued up a vote on a similar though more expansive bill on Tuesday.
What’s critical is that Congress ultimately gets a bill to the president’s desk that blocks this unacceptable rule.
The best approach may be through the use of the Congressional Review Act. As one of us (Daren) wrote in a recent piece for The Hill, “[t]his law offers an expedited process by which Congress can pass a resolution to disapprove of the water rule and bar the EPA and Corps from issuing a rule that is substantially the same.”
Resolutions of disapproval under the Congressional Review Act have also been introduced in both houses, and the Senate may use a CRA resolution as a backup in case its legislation fails.
Most importantly, a filibuster wouldn’t apply in the Senate when considering a CRA resolution.
There’s very little time left to take advantage of the CRA. Further, regardless of what happens with the CRA resolutions and other bills to kill the rule, Congress should include a policy rider in the upcoming omnibus appropriations bill to prohibit the agencies from implementing the rule or anything remotely similar.
Congress finds itself in good company, while the Obama administration is increasingly finding itself on a policy island.
A diverse crowd of interest groups and associations oppose the rule (including governmental interests, not just private interests).
Attorneys general and state agencies from thirty-one states are opposing the rule in federal courts. The Sixth Circuit Court of Appeals recently imposed a temporary stay on the rule’s implementation, given, among several other reasons, the states’ “substantial possibility of success on the merits of their claims.”
Congress can’t rely on the judiciary; the Sixth Circuit hasn’t even determined whether it has jurisdiction to hear the case.
EPA Administrator Gina McCarthy, as reported by Energy and Environment Daily, recently “joked” to attendees at a Maryland League of Conservation Voters event, “I know none of you has ever seen water. It’s a new concept for you.”
For the EPA and Corps, the problem is that all they see is water, even when it’s just land. Congress can try to make sure that these agencies’ blindness to state rights and property rights doesn’t allow them to regulate almost every water.
