West Virginia Record

Tuesday, July 23, 2019

House passes resolution nullifying EPA 'Waters of the U.S.' rule

By Jessica Karmasek | Jan 14, 2016

WASHINGTON – The U.S. House of Representatives, including West Virginia’s entire congressional delegation, on Jan. 13 approved a measure that would effectively kill the Environmental Protection Agency’s new “Waters of the United States” rule.

The House voted 253-166, passing a resolution of disapproval to nullify the rule, which extends the federal agency’s authority to all bodies of water, no matter the size or frequency. Only one Republican – U.S. Rep. Chris Smith of New Jersey – voted against the measure.

The rule was published in the Federal Register June 29. The EPA and the U.S. Army Corps of Engineers began enforcement Aug. 28. However, a federal appellate court in October issued a decision that stops the EPA and Corps from enforcing the rule.

West Virginia’s Congressmen, Evan Jenkins, David McKinley and Alex Mooney, voted in favor of the resolution, which already has passed the Senate. All three are Republicans.

“This is an unprecedented and unacceptable expansion of power,” McKinley said of the rule. “We should not give EPA bureaucrats license to harass and penalize farmers and other property owners.”

He continued, “The rule represents a troubling intrusion into the lives of ordinary citizens just trying to earn a living.”

McKinley pointed to a Wyoming farmer who was fined $37,500 per day for building a pond on his property to provide water for his horses, despite having obtained permits from the state.

“This is a power grab, pure and simple,” he said.

On Oct. 9, the U.S. Court of Appeals for the Sixth Circuit issued its ruling blocking the EPA and Corps from implementing the WOTUS rule nationwide.

Two out of three Sixth Circuit judges sided with the petitioners – Ohio, Michigan, Tennessee, Oklahoma, Texas, Louisiana, Mississippi, Georgia, West Virginia, Alabama, Florida, Indiana, Kansas, Kentucky, South Carolina, Utah, Wisconsin and the North Carolina Department of Environment and Natural Resources – saying they demonstrated “a substantial possibility of success on the merits of their claims.”

West Virginia Attorney General Patrick Morrisey led the charge.

“Petitioners first claim that the Rule’s treatment of tributaries, ‘adjacent waters,’ and waters having a ‘significant nexus’ to navigable waters is at odds with the Supreme Court’s ruling in Rapanos, where the Court vacated the Sixth Circuit’s upholding of wetlands regulation by the Army Corps of Engineers,” the panel wrote in its six-page decision. “Even assuming, for present purposes, as the parties do, that Justice Kennedy’s opinion in Rapanos represents the best instruction on the permissible parameters of ‘waters of the United States’ as used in the Clean Water Act, it is far from clear that the new Rule’s distance limitations are harmonious with the instruction.

“Moreover, the rulemaking process by which the distance limitations were adopted is facially suspect.”

The rule extends the EPA and Corps’ regulatory jurisdiction to an untold number of small bodies of water, including roadside ditches and short-lived streams or any other area where the agencies believe water may flow once every 100 years.

Thirty-one states and state agencies have challenged the legality of the regulation, arguing it violates the Clean Water Act, the Administrative Procedure Act and the U.S. Constitution. They argue it also usurps their primary responsibility of management, protection and care of intrastate waters and lands.

The National Association of Manufacturers also has challenged the rule, filing a lawsuit against it in July.

The latest action by the House utilized the Congressional Review Act, a seldom-used procedure that allows Congress to repeal major regulations. The bill now goes to President Barack Obama’s desk.

“We will continue to stand up to this massive overreach by the Obama Administration in Congress and in the courts,” McKinley said following Tuesday’s vote.

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Organizations in this Story

National Association of Manufacturers U.S. Environmental Protection Agency (EPA) Virginia Attorney General's Office

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