Congress Poised To Strike Down EPA’s Massive ‘Waters Of The US’ Rule

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Michael Bastasch DCNF Managing Editor
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House lawmakers are poised to pass legislation repealing what is probably the Environmental Protection Agency’s (EPA) most hotly contested regulation: an attempt to expand its authority over bodies of water across the country.

The House will vote Wednesday on a bill that would repeal the EPA’s so-called Clean Water Rule under the Congressional Review Act — a law that allows Congress to vote down executive branch regulations. EPA’s water rule has been heavily criticized by lawmakers who see it as a huge expansion of government power and could mean more regulations for private landowners.

“We want them to go back and do a new rule,” Ohio Republican Rep. Bob Gibbs told The Daily Caller New Foundation in an interview. Gibbs sent a letter to House leadership last year asking them to defund EPA’s water rule in the 2016 budget bill.

The Senate passed a bill repealing EPA’s water rule in November, sparking huge outcry from environmentalists who support more federal control over bodies of water. The House is likely to pass the repeal with bipartisan support, sending it to President Barack Obama.

Obama, however, has already promised to veto any bill repealing the Clean Water Rule, arguing it would “deny businesses and communities the regulatory certainty needed to invest in projects that rely on clean water.”

“We’re trying to show the American people what some of our solutions are,” Gibbs said. “We just need to bring all these issues up to the surface.”

In May, the EPA finalized its water rule redefining the meaning of “waters of the United States” under the Clean Water Act (CWA). The agency argued the redefining was necessary to clear up uncertainty caused by two past Supreme Court decisions on EPA’s CWA authority.

EPA officials went to great lengths to try and convince lawmakers their new definition of “waters of the United States” didn’t expand the agency’s powers or create any new permitting requirements for farmers and others most affected by the rule.

“The final rule doesn’t create any new permitting requirements for agriculture, maintains all previous exemptions and exclusions, and even adds exclusions for features like artificial lakes and ponds, water-filled depressions from construction, and grass swales—all to make clear our goal is to stay out of agriculture’s way,” EPA Administrator Gina McCarthy wrote in a May blog post.

But Congress and dozens of states didn’t buy EPA’s arguments. After the rule was finalized, 32 states sued the agency to have the rule struck down, and federal lawmakers on both sides of the aisle began looking at ways to dismantle the rule.

Lawmakers argued EPA’s water rule vastly expanded agency power over bodies of water from public lakes to ponds on private property. EPA control would only hamper development as landowners were saddled with more permits and compliance costs when trying to make any improvements to their property.

Likewise, states worried the rule would erode their own authority to regulate waters and open residents to massive fines from EPA — indeed there were already news stories floating around about private landowners facing huge fines for digging in their backyards.

“The results of this rule will carry a tremendous cost to our state, our economy, and our families,” South Carolina Attorney General Alan Wilson said in a statement announcing the state’s intention to sue the agency. “Road project mitigation costs alone could range from $180,000 to $2.8 million or fines of $37,000 per day.”

States opposing EPA’s rule have had huge success in legal challenges. In October, a federal judge put a stay on the rule, preventing bureaucrats of implementing it.

“A stay temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new Rule and whether they will survive legal testing,” federal Judge David McKeague wrote in the court’s decision to stay the rule.

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