Senate introduces bipartisan WOTUS fix

Bill requires EPA to go back and work with stakeholders on a re-proposal and legislatively addresses what isn't considered navigable.

A new bipartisan bill in the Senate would require the Environmental Protection Agency withdraw its proposed waters of the U.S.  rule currently in its final stages, and instead refocus EPA’s efforts on protecting navigable waters.  

Beginning in 2007, legislative attempts were made to take the term “navigable water” from the Clean Water Act and in 2009 efforts were soundly defeated. Environment and Public Works Committee chairman Sen. Jim Inhofe (R., Okla.) said EPA’s latest attempt to circumvent Congress and exert expanded jurisdiction stops with the bipartisan legislation which looks to better define what waters of the U.S. includes and doesn’t include.

S.1140 Federal Water Quality Protection Act requires the EPA and Army Corps to withdraw the rule and re-write their proposal with consideration of stakeholders and review of economic and small business input, following through with the straightforward procedures EPA skipped the first time. The bill also requires EPA to adhere to definitions included in the bill, specifically limiting the reach of a new rule. It also requires a comment period on the revised proposed rule of no less than 120 days and a final rule published no later than Dec. 31, 2016.

EPA and the Corps of Engineers proposed rule expands the scope of federal authority over land and water to encompass all water in a flood plain, manmade water management systems, and water that infiltrates into the ground or moves overland, and any other water that they decide has a “significant nexus” to downstream water based on use by animals, insects and birds and water storage considerations, shifting the focus of the Clean Water Act from water quality protection and navigable waters to habitat and water supply.   

The legislation reaffirms the original intent of the Clean Water Act and provides clear direction with regard to the types of water bodies that would not fall under federal regulation under the Clean Water Act such as groundwater, natural and manmade isolated ponds, storm water and flood water management systems, constructed water systems, prior converted cropland, municipal and industrial water supply management systems, and puddles.

The legislation orders EPA and the Corps to review and respond to the more than 1 million comments on the original rule, conduct an economic analysis, review unfunded mandates, as well as other measures to be reported to Congress.

Sen. Heidi Heitkamp (D., N.D.), one of the sponsors of the bill, explained it is important for Congress to intervene and provide guidance of what requires federal jurisdiction and what can be left for local and state authorities to oversee. “We’re doing what Congress should do which is legislate and not leave it up to the regulatory agencies,” she said.

Heitkamp challenged that the current proposal and uncertainty created has slowed down appropriate kinds of soil management. North Dakota for example is in the middle of an historic wet cycle, impacting farmers across the state with flooding and pooling water.

She said the bill makes sure that EPA takes these unique conditions into account and proposes a rule to regulate water that actually considers what is happening on farmers’ land.

Nearly 90 agricultural organizations have voiced support for the Senate bill in a letter to the EPW committee earlier in the week.
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