Inside EPA: States Secure ‘Primacy’ Role In House Bill To Force CWA Rule Re-Proposal

States Secure ‘Primacy’ Role In House Bill To Force CWA Rule Re-Proposal

Inside EPA Daily News, April 15, 2015

House lawmakers have amended a bill to force EPA to re-propose its Clean Water Act (CWA) jurisdiction rule by inserting language to protect states’ “primacy” over water rights law, advancing the bill through the transportation panel after rejecting calls to instead allow EPA to finalize the rule and then file a disapproval resolution on it.

Members of the House Transportation & Infrastructure Committee (T&I) voted 36-22 — with just two Democrats in favor — to approve H.R. 1732, a bill to require EPA and the Army Corps of Engineers to launch an extensive new consultation with states, industry and others over the scope of the water law to inform a new proposed rule. The bill echoes critics’ claims that EPA did not fully consider comments on the rule, which they say expands the law’s reach too far.

During markup, lawmakers rejected an amendment offered by Del. Eleanor Holmes Norton (D-D.C.) to stipulate nothing in the bill would preempt EPA or the Corps’ ability to protect the quality of surface water available for public water supply. Opponents said the measure implied that waters covered under the CWA proposed rule would be otherwise unregulated rather than subject to state oversight.

The majority also pushed back on a suggestion by Rep. Peter DeFazio (D-OR) to hold off on legislation on the rule until the administration issues a final version, expected this spring. DeFazio backed calls from EPA’s de facto water chief Ken Kopocis, environmentalists and others to allow the agencies to finalize the rule and see whether a definitive statement of the law’s scope could address some criticisms of the April 2014 proposed version.

Instead of acting now on legislation, DeFazio suggested that after EPA issues a final rule, lawmakers could file a Congressional Review Act (CRA) disapproval resolution to undo the regulation. “What we’re pretending to do today, we actually have the option to do under the authority of existing law,” DeFazio said.

The CRA gives Congress 60 days after finalization of an agency rule to block it, though such a measure could face a White House veto threat that would require two-thirds of Congress to overcome.

T&I Chairman Rep. Bill Shuster (R-PA) said the CRA is a possible remedy but stressed that “we need to move forward” on the bill, citing state and local governments’ attacks on the regulation.

But the agencies have said they made significant revisions to the rule to address the more than 1 million public comments received on the April 21, 2014 proposal, DeFazio said. Forcing the administration to withdraw the rule “binds us to the Bush guidance opposed by everybody,” he said, citing 2008 regulatory guidance on when smaller waters are subject to the CWA in the wake of competing legal tests. “Nobody has seen the final rule.”

The final rule is currently undergoing White House Office of Management & Budget (OMB) pre-publication review. EPA Administrator Gina McCarthy has vowed release of the rule this spring, and she recently told the National Association of Clean Water Agencies that the final rule will not contain any “surprises.”

Rep. Grace Napolitano (D-CA) at the markup argued in favor of waiting for EPA to publish a final rule. She pointed out that McCarthy has committed to several revisions, including ensuring that municipal separate storm sewer systems (MS4s) will not be subject to unduly burdensome regulations as jurisdictional waters.

Napolitano also questioned Republican lawmakers supporting the legislation on the purported cost of withdrawing and re-proposing the rule, calling the legislative measure “reckless and asinine.”

A committee legal staffer responded that the Congressional Budget Office has not yet provided an estimate, but based on a previous and similar bill is unlikely to find that the cost would be of substantial concern.

States’ Rights

At the markup, the panel unanimously approved an amendment from Rep. Jared Huffman (D-CA) affirming federal deference to state authority to craft water governance laws to mediate disputes over water allocation and rights.

Shuster, who introduced the H.R. 1732 bill, said he thought the amendment “strengthened” the legislation.

Rep. Bob Gibbs (R-OH), chair of the T&I water resources panel, asked Huffman whether the lawmaker could support the bill with the inclusion of the amendment.

In response, Huffman said, “No, but it makes it a little bit less bad.”

The committee also struck down 33-23 Holmes Norton’s amendment that would have stipulated that nothing in the bill would preempt EPA or Corps’ ability to protect the quality of surface water available for public water supply. Norton said the amendment was necessary to protect small streams and tributaries that flow into large waterbodies, such as the Potomac River, that serve as drinking water resources.

Gibbs said that Norton’s remarks imply that such streams are not regulated, when in fact they are the purview of state regulations. “The Clean Water Act does work, when we have local governments and states advising EPA and the Corps,” Gibbs said. “We’re not changing anything here, this is a common sense reasoned approach.”

The bill as approved by the T&I panel would require EPA and the Corps to within 30 days of enactment withdraw the proposal issued April 21, 2014, and the final rule under OMB review.

The agencies would have to craft a new proposal based on public comments received on the April 2014 proposal and a related cost-benefit analysis and scientific study on waters’ connectivity that the agencies used to develop the proposed rule.

Additionally, the bill’s text says it would require the agencies to jointly consult with “representative State and local officials, stakeholders, and other interested parties on how to define the term ‘waters of the United States’” in the CWA and include any consensus advice from stakeholders in a new proposed rule. —Bridget DiCosmo (

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