House Passes Waters of the U.S. Resolution of Disapproval
Congressman Kevin Cramer announced today the U.S. House of Representatives approved S.J. Res. 22, a joint Congressional resolution of disapproval for the Waters of the United States Rule (WOTUS). This resolution vacates a rule published on June 29, 2015, by the Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps) which would redefine “waters of the United States” (WOTUS). This rule significantly expands the scope of federal jurisdiction under the Clean Water Act (CWA) over virtually all waters and wet areas in the country, and undermines the role of the states as partners and co-regulators of the nation’s waters. S. J. Res. 22 was introduced on Sept. 17, 2015 by Sen. Joni Ernst (R-IA) and passed the Senate by a vote of 53 to 44 on Nov. 4, 2015.
Pursuant to the Congressional Review Act, Congress can overturn an agency’s rule if a joint resolution of disapproval is passed by both chambers and signed by the President. S.J. Res. 22 would vacate the rule and prohibit the issuance of any new rule substantially similar to the WOTUS rule published in June 2015.
“The WOTUS rule is a unconstitutional power grab by the federal government which threatens the livelihood of producers and businesses across North Dakota,” said Cramer. “If President Obama is truly serious to living up to his commitment to cut needless government regulations and red tape, he should join with a bipartisan majority of the House and Senate and stop WOTUS by signing S.J. Res. 22 into law.”
In August, Judge Ralph Erickson issued a temporary injunction for WOTUS after North Dakota and 12 states requested to delay the effective date of the rule. On Oct. 9, the Sixth Circuit Court of Appeals issued a nationwide injunction on the implementation of the WOTUS rule.
Since 2001, the United States Supreme Court (SCOTUS) has ruled twice against the EPA’s interpretation of the WOTUS. In both the 2001 and 2006 cases, a plurality of the Court ruled against the EPA.
On May 12 , the House passed H.R. 1732, the Regulatory Integrity Protection Act of 2015. The bill was co-sponsored by Congressman Cramer. It gives the EPA and the Corps 30 days to withdraw the current rule which defines WOTUS under the Clean Water Act, and charges them with developing a new rule.
On May 1, the House passed H.R. 2028, the 2016 Energy and Water Appropriations Act, which included language to prevent the Corps from spending any funds to implement the WOTUS Rule. Both pieces of legislation are awaiting action by the U.S. Senate.
Continued Congressional oversight of the EPA on this issue exposed memos from the Corps to the EPA showing the agency appeared to manipulate the Corps’ data to support the EPA’s implementation of the rule. These memos showed the concerns raised by Corps staff to Jo-Ellen Darcy, Assistant Secretary of the Army for Civil Works.
The Corps staff argued the economic analysis and technical support document prepared by the EPA for the rule “are flawed in multiple respects,” including applying Corps data out of context and mixing terminology and data. “In the Corps’ judgement, the documents contain numerous inappropriate assumptions with no connection to the data provided, misapplied data, analytical deficiencies and logical inconsistencies,” the memo said. The documents obtained can be viewed here.
Questions have been raised concerning the efforts the EPA undertook to generate positive comments during the WOTUS Rule comment period. An in-depth investigative report published by The New York Times on May 18 exposed the agency’s efforts to solicit positive comments for the proposed rule, possibly violating federal lobbying laws. Click here to read the full story. A Government Accountability Office (GAO) report found here confirms the EPA’s social media campaign supporting the rule violated laws barring agencies from lobbying and disseminating propaganda to the public.
The EPA and Corps appeared to cut corners in the drafting of the WOTUS Rule by failing to comply with the Regulatory Flexibility Act (RFA). The RFA required the EPA to study the effect the rule would have on small business and if it is determined the impacts are significant, the EPA needed to take the impacts into account and study less burdensome alternatives and regulations.
In 2014, the Office of Advocacy of the U.S. Small Business Administration (SBA) stated the EPA and Corps failed to comply with the RFA and improperly certified the proposed WOTUS rule. The SBA Office of Advocacy recommended the EPA withdraw the rule and conduct a Small Business Advocacy Review panel before proceeding any further with this rulemaking. The entire letter from the Office of Advocacy can be seen here.