House sends strong message against EPA's water rule

Legislation to halt EPA's work and implementation of waters of the U.S. rule and interpretive guidance on agricultural exemptions passes easily.

In a rare bipartisan showing, the U.S. House of Representatives approved legislation Tuesday that would prevent the Environmental Protection Agency (EPA) and Army Corps of Engineers from finalizing and enforcing its proposed rule that would redefine “waters of the United States” under the Clean Water Act.

The body approved the measure by a vote of 262-152, with 35 Democrats voting in favor of the bill that addresses EPA’s rule which has become a common theme of concern in the countryside. The House held limited debate on the bill, with an hour on the rule followed by an hour of debate on the rule itself. Earlier this summer the bill passed out of the House Committee on Transportation & Infrastructure by a voice vote.

If enacted, H.R.5078 would uphold the existing federal-state partnership by prohibiting the EPA and the Army Corps from developing, finalizing, adopting, implementing, applying, administering or enforcing the proposed rule to or any similar rule that would expand the agencies’ jurisdiction over these waters.  It would also require the EPA and Army Corps to consult with state and local governments to come up with recommendations on how to identify which waters are to be covered under the CWA and which should be regulated by states and localities. 

The legislation also would block a companion interpretive rule, which enumerates agricultural practices that would be exempt from the WOTUS rule.

Two amendments proposed by Rep. Tim Bishop (D., N.Y.) were both voted down. One would have provided EPA and the Secretary of the Army Corps the ability to implement the rule if they determined at their own discretion that the rule is consistent with the Supreme Court. The other gives the EPA administrator discretion in making water quality determination instead of the states to pave the way for final rule implementation.

Rep. Nick Rahall (D., W.V.) who serves as the ranking member on the House Committee on Transportation & Infrastructure, said despite EPA’s claims that the proposed rule clears up confusion under what waters should be regulated by the federal Clean Water Act, he said the proposed regulations only stirred up more water and aggravation.

Rahall added that the proposal expands “EPA’s reach into waters never before envisioned” and takes away oversight long-reserved to the states.  Not only does it result in a power grab, Rahall said, but it also results in a land grab and tries to dictate what can be done on individuals’ own property. If EPA really believes this is trying to provide clarity, “one has to wonder what’s in the water over at the EPA headquarters,” he said.

Rep. Steve Southerland (R., Fla.) who is the lead author of the bill, said it provides a safeguard against the overreach by EPA and instead hands it back to state officials and those at the local level. “This is not anti-environment,” he said of his bill, instead it helps preserve a partnership with those who are at the ground level of water decisions.

Under current regulation, states have primary responsibility for regulating waters within their boundaries and twice the Unites States Supreme Court has reaffirmed this authority, the National Cattlemen’s Beef Assn. said in a release. “The proposed rule strips this balance and expands federal jurisdiction to nearly every water in the country, including ditches, puddles and ponds,” NCBA claimed.

Rep. Bob Gibbs (R., Ohio) said that EPA could not identify a single state that supports this rule and takes away the long-standing rights of states to be co-regulators on water quality. The bill is designed to force EPA and the Corps to go back to the drawing board and instead work together with states and local officials on finding a workable solution to the uncertainty that was created with Supreme Court rulings and 2003 and 2008 guidance documents written by the Bush Administration.

House Agriculture Committee chairman Frank Lucas (R., Okla.) added, "Whether it's trying to regulate farm dust out of existence, milk as oil, or now treat ditches like major water tributaries, the EPA has demonstrated a hunger for power and a lack of understanding of how its actions impact America’s farmers and ranchers. The agency's latest action would trigger an onslaught of additional permitting and regulatory requirements for our agricultural producers to protect not our great natural resources, but rather our backyard ponds. 

“The expanded coverage resulting from the proposed rule, which likely would negate the agricultural exemptions, could force most farmers to apply for Clean Water Act discharge permits,” said National Pork Producers President Howard Hill, “and permits likely would be needed for a host of traditional farming practices such as application of pesticides and fertilizer. This rule would hand activist groups a tool they could use to file lawsuits to force farmers to obtain permits merely for planting seeds.

“NPPC wants EPA to rescind its agricultural exemptions rule immediately and to either withdraw the WOTUS rule or work with agriculture to make changes in the proposal that reflect real on-farm conditions, then reopen the rule for public comment,” Hill said.

The legislation is now headed to the Senate, but is unlikely to receive a vote yet this Congressional session. The White House also issued a veto threat on the legislation. EPA’s comment period on the proposed rule closes Oct. 20 and hundreds of thousands of comments have already been submitted.

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