Clock is ticking on bid to block EPA water rule

If ever a rule deserved killing, it's the new water rule issued by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers. A classic example of "regulators gone wild," the rule seeks to regulate almost every "body" of water in these United States. For example, man-made ditches and ephemeral streams (typically dry water beds that carry water only after major storms) could be regulated.


Such regulatory overreach would have been anathema to the authors of the Clean Water Act (CWA), which lays out a cooperative relationship between the federal government and states. Yet this overreaching regulation has prompted attorneys general and regulatory agencies from 31 different states to sue the federal government. That's a good indication that the EPA and Corps aren't cooperating.

Under the CWA, property owners are often required to obtain costly and time-consuming permits if engaging in activities that affect waters that the EPA and Corps believe should be covered under the law (i.e., jurisdictional waters). A property owner doesn't have to dump toxic waste to need a permit; under the CWA, someone might need a permit for simply kicking some sand into jurisdictional water.

By expanding what waters are deemed jurisdictional, the EPA and Corps are grabbing more power. This could include forcing property owners to acquire additional permits for ordinary activities from farming to homebuilding. Many property owners will have to decide whether to spend the money to secure the permits or simply forego the activities because of the cost.

Not surprisingly, many members of Congress have expressed serious concern about this rule. The House even passed legislation to kill the rule and create a new process by which a new rule could be developed. That legislation has ground to a halt, however. Still, there's a simple solution to deal with the problem: the Congressional Review Act (CRA).

This law offers an expedited process by which Congress can pass a resolution to disapprove of the water rule and bar the EPA and Corps from issuing a rule that is substantially the same.

Another advantage to this approach: Approval requires only a simple majority in each House, avoiding the threat of a Senate filibuster.

Legislators in the House and Senate have already introduced CRA resolutions. But the CRA carries a tight and rather complicated timeline. To take advantage of the CRA procedures, the Senate would likely have to pass a disapproval resolution by early November; otherwise, this opportunity to get something passed will have been wasted.

Of course, President Obama may veto a CRA resolution, and overriding the veto would be difficult. The same, though, could be said for any legislation that attempts to kill this new water rule. None of that should matter.

By passing the legislation, Congress would make its opposition to the rule very clear. This isn't some wasted intellectual exercise. Congress needs to go on the record about where it stands on this rule.

The rule has engendered an incredible level of opposition. Farmers, ranchers, manufacturers, local governments and most states actively oppose it. The Corps itself had expressed serious concerns about its own rule just weeks before it was released. The EPA was so desperate to ramrod it through that it employed controversial activities, such as a video and social media campaign, to gin up support for the rule.

Recently, the Sixth Circuit Court of Appeals issued a stay temporarily blocking implementation of the rule across the entire country. It concluded that the parties challenging the rule "have demonstrated a substantial possibility of success on the merits of their claims." The rule might very well get overturned by the courts.

However, lawmakers can't sit idle and hope the judiciary will do their job for them — especially since the Sixth Circuit has not yet determined if it has jurisdiction to review the rule.

Congress needs to take legislative action now. Fortunately, the CRA makes it easy for them to do so. This is a significant accomplishment just waiting to happen. The clock is ticking.

Bakst is a research fellow specializing in agricultural policy in the Heritage Foundation's Roe Institute for Economic Policy Studies.