Senate bill offers fix for water ruleSenate bill offers fix for water rule
Bill requires EPA to work with stakeholders on re-proposal and legislatively addresses waters not considered navigable.
May 1, 2015
LACK of state and stakeholder input was a common complaint with the Environmental Protection Agency's proposed waters of the U.S. rule.
A new bipartisan bill in the Senate would require EPA to withdraw the water rule, which is currently in its final stages, and instead refocus its efforts on protecting navigable waters.
Beginning in 2007, legislative attempts were made to take the term "navigable water" from the Clean Water Act (CWA), but in 2009, efforts were soundly defeated.
Sen. Jim Inhofe (R., Okla.), chair of the Senate Environment & Public Works Committee, said EPA's latest attempt to circumvent Congress and exert expanded jurisdiction stops with the latest legislation, which seeks to better define what "waters of the U.S." encompasses and excludes.
The Federal Water Quality Protection Act (S. 1140) requires EPA and the Army Corps of Engineers to withdraw the rule and rewrite their proposal taking into consideration stakeholder and small business input and an economic review, following through with the straightforward procedures EPA skipped the first time.
EPA also would be required to adhere to definitions included in the Senate bill, specifically those that limit the reach of a new rule.
The bill requires a comment period on the revised proposed rule of no fewer than 120 days and a final rule to be published no later than Dec. 31, 2016.
The EPA and Corps proposed water rule would expand 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 the ground or moves overland, as well as 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 CWA from water quality protection and navigable waters to habitat and water supply.
The legislation reaffirms the original intent of the CWA and provides clear direction with regard to the types of water bodies that would not be federally regulated under the CWA, 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 and take other measures that will be reported to Congress.
Sen. Heidi Heitkamp (D., N.D.), one of the sponsors of the bill, said it is important for Congress to intervene and provide guidance on what requires federal jurisdiction and what can be left for local and state authorities to oversee.
Heitkamp said the current proposal and the uncertainty it created have slowed down appropriate kinds of soil management.
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.
Senate Agriculture Committee chairman Pat Roberts (R., Kan.) noted that in Kansas alone, federal jurisdiction of waterways would increase 460%, or 170,000 stream miles, under the water rule.
In Alaska, the impact would be much more dramatic as two-thirds of the entire nation's wetlands and an estimated half of waters covered by the expanded rule lie in the state, explained Sen. Dan Sullivan (R., Alaska), another sponsor of the bill.
Nearly 90 agricultural organizations voiced support for the Senate bill in a letter to the committee.
Last week, the House Appropriations Committee cleared for floor debate its water and energy bill, which also includes language that would block the EPA water rule. House Democrats fear that the rider could trigger a veto of the bill.
Senate sponsors played down concerns of a veto as a handful of Democrats already support S. 1140. Heitkamp called the bill "moderate" and noted that it has compromises built into it.
The bill will be referred to the Senate Environment & Public Works Committee, and Inhofe said he hopes it can soon move through the committee and to the Senate floor.
The House has a similar version, the Regulatory Integrity Protection Act (H.R. 1732), which was introduced by Reps. Bill Shuster (R., Pa.) and Bob Gibbs (R., Ohio).
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