Congress Tries to Reign in US EPA Rulemaking on Waters of the United States

On September 9, 2014, the United States House of Representatives passed H.R. 5078, a bill that would prohibit EPA and the U.S. Army Corps of Engineers from finalizing the Waters of the United States rulemaking that was proposed earlier this year. The bill, which was passed by a vote of 262 to 152, would instead require that the two federal agencies consult with State and local officials to develop a new proposal for defining what waters are covered under the Clean Water Act. 

H.R. 5078 would prohibit the agencies from developing, finalizing, adopting, implementing, or enforcing the following:

  • The proposed rule, published in the Federal Register on April 21, 2014, that defines the scope of waters protected by the CWA;
    • Draft Guidance Regarding Identification of Waters Protected by the Clean Water Act, submitted to the Office of Management and Budget on February 21, 2012, that clarifies how EPA and the Corps should identify U.S. waters protected by the CWA and implement two Supreme Court decisions on this issue; and
    • The interpretive rule, also published in the Federal Register on April 21, 2014, that clarifies the types of discharges of dredged or fill material associated with certain agricultural conservation practices that can be exempted from section 404 permits.

Finally, enacting this legislation would require EPA and the Corps to jointly consult with state regulatory officials to develop recommendations for an alternative regulatory proposal instead of the proposed rules and draft guidance; such recommendations would be provided to the Congress in a final report.

The White House has issued a statement of administration policy opposing the bill, claiming that “H.R. 5078 would derail current efforts to clarify the scope of the CWA, hamstring future regulatory efforts, and create significant ambiguity regarding existing regulations and guidance. It would deny businesses and communities the regulatory certainty needed to invest in projects that rely on clean water.” The statement goes on to say that if enacted, “H.R. 5078 could also incite further litigation that would only magnify confusion and uncertainty among affected stakeholders,” and would further delay action to clarify the scope of the Clean Water Act by requiring a lengthy consultation process with state and local officials “even though they were engaged and consulted during the development of the proposed rule and they continue to be consulted as the agencies proceed with rulemaking.” The statement ended by saying “If the President were presented with H.R. 5078, his senior advisers would recommend that he veto the bill.”

Kathy Milenkovski is an energy and environmental lawyer. She helps clients comply with complex state and federal regulatory programs and represents clients in litigation, appearing in administrative, state and federal courts.
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