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WOTUS Rule Being Challenged in Congress

By a 261-155 vote, the U.S. House of Representatives approved legislation that would stop the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) from greatly expanding their regulatory powers under the Clean Water Act (CWA).51 WOTUS 400

By changing the definition of “Waters of the United States” (WOTUS) the proposed rule would expand the agencies’ authorities to unprecedented levels, threatening private property rights and economic development. H.R. 1732, the “Regulatory Integrity Protection Act of 2015,” would force EPA and the Corps to develop a new proposal that respects the jurisdictional limitations imposed by Congress and affirmed by the Supreme Court.

“We’re gratified to see the House of Representatives stand up to EPA’s overreach by setting a more reasonable path where states, industry, and other stakeholders can work together to protect water quality,” said James G. Toscas, Portland Cement Association (PCA) president and CEO.

On numerous occasions, PCA has urged EPA and the Corps to withdraw the proposed WOTUS rule and work with stakeholders to develop a proposal that respects the will of Congress and the Supreme Court. By directing withdrawal of the agencies’ proposal, the “Regulatory Integrity Protection Act of 2015” initiates a process that will achieve this balance while ensuring environmental protection.

“We take environmental compliance very seriously, and this vague and arbitrary approach would make that job more difficult,” said Toscas. “It is so ambiguous that it could include something as minor as a temporary pool of water that forms after a rainstorm, with determinations made on a case-by-case basis. The industry looks forward to working with the EPA, state and local officials and other partners on the development of reasonable water guidelines.”

The National Stone, Sand and Gravel Association’s (NSSGA) Sr. Vice President Pam Whitted also praised the House’s action. “The House is leading the way by passing very important legislation to require EPA to withdraw the WOTUS rule and go back to the drawing board to conduct increased consultations with involved stakeholders,” she said.

According to NSSGA, a bipartisan group of senators recently introduced a WOTUS bill, the Federal Water Quality Protection Act, S. 1140. Sens. Jim Inhofe (R-Okla.), John Barrasso (R-Wyo.), Joe Donnelly (D-Ind.), Heidi Heitkamp (D-N.D.), Pat Roberts (R-Kan.) and Joe Manchin (D-W.Va.), sponsored the legislation that protects traditional navigable waters of the U.S.

Like the House bill, the Senate measure would direct the EPA and the Corps to withdraw the existing WOTUS proposal and issue a revised rule that would exempt numerous waters of concern to the aggregates industry, such as dry stream beds, isolated ponds, ditches and water treatment systems.

The Senate bill outlines principles for the EPA and the Corps to consider when redrafting the rule. Sen. Barrasso said, “After working together for months, we’ve introduced a strong bipartisan bill that will protect America’s waterways – and America’s farmers, ranchers and landowners. Our legislation gives the EPA the direction it needs to write a reasonable rule that will truly protect our ‘navigable waterways.”

In a related action, the Senate Subcommittee on Fisheries, Water and Wildlife, scheduled a hearing May 19 to examine the Federal Water Quality Protection Act, S. 1140, its version of the WOTUS legislation. It stops the EPA and the Corps rulemaking and requires a new proposed rule. The subcommittee heard testimony from a variety of stakeholders on how this proposed rule will impact businesses and state activity.
“As the process moves forward, it is important for Senators to remember that this is not a water quality issue, but a land issue. In its current form the proposal would restrict development of the aggregates that are essential to maintaining and building our roads and highways,” Whitted added.