Attempts to halt WOTUS rule see setbacks

Senate fails to pass amendment to halt waters of U.S. rule, while sixth circuit denies petitions to rehear Clean Water Act in district courts.

On Thursday, several attempts to halt the Environmental Protection Agency’s "waters of the U.S." (WOTUS) regulation did not succeed, although much noise continues to be made on the controversial rule.

Sen. John Hoeven (R., N.D.) proposed an amendment Thursday to the Senate's energy and water funding bill for fiscal year 2017 that would block implementation of the WOTUS regulation. The amendment failed 56-42; it needed 60 yea votes to be included in the bill.

“The EPA has sought, through administrative fiat, to seize authority that legally belongs to Congress, not an executive agency. While I am disappointed that the vote failed, I will continue my work to stop this burdensome regulation through the appropriations process,” Hoeven said.

In November 2015, Congress passed a resolution of disapproval for WOTUS co-sponsored by Hoeven. Such resolutions are authorized under the Congressional Review Act, which allows Congress — by majority vote — to repeal actions by a federal agency after a rule is formally published and submitted to Congress. Despite passage, however, the measure was vetoed by President Barack Obama in January.

Earlier this week, the House Appropriations Committee did approve its fiscal year 2017 energy and water appropriations bill, which included a policy directive blocking the WOTUS rule.

Last August, U.S. district court Judge Ralph Erickson issued an injunction blocking EPA from implementing the WOTUS rule in North Dakota and 12 additional states that had challenged the rule. A subsequent ruling in October 2015 by the Sixth U.S. Circuit Court blocked the rule from being implemented nationwide while the courts determine its legality.

On Thursday, the Sixth Circuit Court of Appeals in Cincinnati, Ohio, denied petitions to rehear arguments opposing the Clean Water Act. Petitioners want the case to be heard in the district courts rather than beginning in the federal appeals court system.

The National Cattlemen’s Beef Assn. (NCBA) was one of the groups requesting the en banc hearing. “We felt the district courts were better suited to hear this initially,” NCBA spokesman Chase Adams explained. “This denial certainly wasn’t what we wanted but doesn’t change the current state of play.”

Petitioners remain hopeful that the WOTUS rule will eventually be overturned.

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