Association of State Wetland Managers - Protecting the Nation's Wetlands.

The Compleat Wetlander: What’s Next for the Clean Water Rule

By Jeanne Christie

Both the Administration and Congress are engaged in addressing the Clean Water Rule that is currently under Interagency Federal Review with the Office of Management and Budget (OMB).  The comment period on the proposed ruled closed November 14, 2014.  Following review of comments, a final rule was sent to OMB on April 3rd.  According to the EPA website, the final rule will be published sometime in May of 2015 . This is a very ambitious timeline that will be challenging to meet, but it signals the Administration is moving ahead with finalizing the rule and it is likely if it is not finalized in May, it will be published and put into effect in the coming months.

cleanwateract1At the same time, Congress has held a series of hearings in both the House and Senate on the Clean Water Rule and the House has followed these by introducing H.R. 1732, the “Regulatory Integrity Protection Act of 2015”. The bill was introduced on April 13 and may be brought to the House floor in the near future.  The legislation would require the Administration to withdraw the existing rule and start the rulemaking process over.  The primary reason reported for doing this is so the states and other parties can engage in full consultation with the EPA and the Corps in the rulemaking process.

In addition this week the House passed an Energy and Water Appropriations Bill which includes a rider that would prohibit the agencies from implementing a new rule.  This rider, should it remain in the appropriations budget, would take affect when funding is authorized for the next fiscal year.

Also this week Senators have introduced a bill, the “Federal Water Quality Protection Act” that would also require the Administration to start over adhering to a set of new definitions and principles that appear to substantially reduce the extent of  waters subject to the Clean Water Act following the SWANCC and Carabel/Rapanos Supreme Court decisions.

What’s Next?

What happens next depends in part on whether the Administration publishes a final rule in the next couple months.  If it does, the reception by states, the regulated community, and many other interest groups, as well as the reception of the House and Senate bills, particularly the Senate bill, will influence what steps Congress continues to pursue.  There is already some discussion and head counting underway to determine if there are enough votes in the Senate to override a likely Presidential veto.  If the proposed legislation is not passed into law, then it is likely that appropriations language would constrain the Administration’s ability to implement a new rule.

It would be prudent for States to evaluate the new Senate bill in consideration of both the impact of the bill if enacted at the federal level and also with respect to the consequences of having similar legislation introduced in their states.  Over time states clean water protection has generally evolved to follow federal law in many states, particularly with respect to cw51515-444exemptions and this bill has a number of new ones as well as new terms and definitions in response to recommendations from various interest groups.

For those who would like Congress to be informed and understand their concerns and recommendations about how to respond to a new Clean Water rule as well as the proposed legislation, it is important to be actively engaged both now and when the final rule is  published.

For more information on the EPA/Corp Clean Water Rule, go here.

For information about the record established through the recent House and Senate Hearings see:

House-Senate Joint Hearing on State & Local Impacts of Administration’s Proposed Expansion of Waters Regulation, Wednesday, February 4, 2015

Senate Environmental and Public Works – Impacts of the Proposed Waters of the United States Rule on State and Local Governments and Stakeholders, Saturday, March 14, 2015

House Committee on Agriculture Conservation & Forestry Subcommittee—Public Hearing: WOTUS, March 17, 2015

Senate Committee on Agriculture, Nutrition and Forestry, Waters of the United States: Stakeholder Perspectives on the Impacts of EPA’s Proposed Rule, Tuesday, March 24, 2015

04/06/2015    Field Hearing: Impacts of the Proposed Waters of the United States Rule on State and Local Governments and Stakeholders

cw5115-3304/08/2015    Field Hearing: Impacts of the Proposed Waters of the United States Rule on State and Local Governments and Stakeholders

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