House Votes to Rollback WOTUS Rule

January 20, 2016

pic-congress-committeeOn Jan. 1, 2016, the House approved by a vote of 253-166, a Congressional Review Act (CRA) resolution of disapproval on the Waters of the U.S. (WOTUS) rule. The heavily partisan vote to move forward with the resolution garnered support from all but one Republican, Rep. Chris Smith (R-N.J.).

The CRA allows Congress to rollback an executive agency rulemaking with majority votes in both chambers and the approval of the president. The CRA allows Congress to force an agency to change a rule without having to change the underlying law and follow standard rulemaking procedures which would require a comment period on changing a final rule.

The WOTUS rule defines the types of water bodies that are covered under federal water protection statutes. The scope of the rule has been litigated for decades and in 2014 the Environmental Protection Agency (EPA) and Army Corps of Engineers released a proposed rule to clarify the jurisdictional questions. That rule was finalized in May 2015.

The rule raised concerns with many, including NSBA, that the rule does not clarify the jurisdictional questions but would instead lead to greater uncertainty. The primary concern is that several portions of the rule seem to grant EPA more discretion, and therefore will increase uncertainty and could potentially greatly expand the jurisdiction of the water protection statutes to previously unregulated small water bodies like puddles and ditches.

The Senate passed an identical CRA resolution in November, so the House vote was a necessary next step before the CRA resolution ultimately reaches the president’s desk. However, the House vote was largely symbolic as the president has already promised that he will veto any attempt to change the WOTUS rule. Enforcement of the new rule has been stayed nationwide by the U.S. Court of Appeals for the Sixth Circuit while litigation surrounding the rule is resolved.

Small businesses continue to bear enormous burdens from regulations across all sectors of the economy. NSBA supports responsible regulation, however is concerned that rules such as WOTUS greatly expand the scope of regulations and will have a direct and potentially costly impact on small businesses. . NSBA supports a clear definition for “waters of the U.S.” which will genuinely increase regulatory transparency and free small businesses from unnecessary impediments and regulatory burdens from the federal government.