Senate Considers WOTUS, EPA Funding

April 27, 2016

pic-energyThis week, the Senate is expected to approve the FY 2017 Energy and Water Development Appropriations bill (H.R. 2028) funding the Department of Energy and Army Corps of Engineers. This is the first appropriations bill being considered on the floor  this year and Senate Majority Leader Mitch McConnell (R-Ky.) has indicated that his top priority for 2016 is to pass all appropriations bills through regular order rather than through an omnibus bill at the end of the year, which is what has happened for the past several years.

The legislation would appropriate over $37 billion to federal programs across the agencies, an increase of $355 million over 2016 levels. However, the spending increases are largely attributed to defense-related programs, while nondefense programs, including those at the Army Corps of Engineers, received cuts.

Importantly, the Army Corps of Engineers has joint jurisdiction over the controversial Waters of the U.S. (WOTUS) rule with the Environmental Protection Agency (EPA). An amendment—offered by Sen. John Hoeven (R-N.D.)—to the appropriations bill which would have blocked EPA’s WOTUS rule was defeated 56-42 on April, 21 falling just four votes shy of being adopted. The WOTUS rule is an attempt to clarify jurisdiction under Clean Water Act programs. However, it has been highly controversial since it was finalized last year, with many—including small businesses—concerned that it introduces more uncertainty into the system, rather than clarifying jurisdiction. The amendment threatened to throw a major wrench in the appropriations process as the Obama Administration had already issued a veto threat to any appropriations legislation containing an amendment that would disrupt the implementation of the rule.

The legality of the WOTUS rule is currently being litigated in the United States Court of a Appeals for the Sixth Circuit. That court has issued a national stay of enforcement on the regulations while the litigation unfolds.

NSBA opposes the WOTUS rule and is concerned that it does not really clarify for small businesses what waters will fall under the jurisdiction of the EPA and Army Corps of Engineers. Clarity and predictability in the regulatory system are essential for small businesses to operate and grow. Without an idea of what its obligations will be, it is very difficult for a small business to make plans to expand operations or even make long term plans for ongoing operations. A more transparent and predictable regulatory environment would allow small businesses to grow and expand knowing what will be required of them.