WASHINGTON, Feb. 4, 2015 – Congressional Republicans are laying the groundwork for an effort to stop the administration’s proposed rule for defining the “waters of the United States” (WOTUS). The big question is, what can Congress do to overcome an almost certain presidential veto of any standalone bill that attempts to block the rule before or after it’s finalized?

The first hearing of the 114th Congress on the issue was set for today with EPA Administrator Gina McCarthy and Jo-Ellen Darcy, the assistant secretary of the Army for civil works. Also on the witness list are Florida’s Republican agriculture commissioner, Adam Putnam, and Oklahoma Attorney General Scott Pruitt, one of several attorney generals who has challenged the legality of the WOTUS rule, presaging a court fight once it is finalized.

Ahead of the hearing, the top official in EPA’s Office of Water, Ken Kopocis, told Agri-Pulse that the agency was planning changes to the proposed rule that should help address the concerns raised by farm groups. He declined to discuss the possible alterations, however. The final rule “will reflect some changes that will be as a result from the input we have received form the agricultural community,” he said.

He said the agency is still on track to finalize the rule this spring, which means Republicans don’t have a lot of time to head it off legislatively. If they wait to use a fiscal 2016 appropriations bill to try to block the rule’s enforcement that could be too late.

The administration has formally withdrawn a separate interpretative rule that detailed the farm and conservation practices that are exempt from Section 404 permitting requirements under the Clean Water Act. A provision in the fiscal 2015 omnibus spending bill ordered the administration to withdraw the measure, and the administration is doing nothing to replace it. “At this point in time we are not actively working on a replacement,” Kopocis said.

Julia Anastasio, executive director of the Association of Clean Water Agencies, an organization of state regulatory agencies, says that finalizing the WOTUS rule will likely trigger a court battle because any changes the administration makes are unlikely to satisfy the business interests that are worried about it. “The minute it goes final those lawyers have their briefs written and will be filing in court,” she said.

She thinks the administration could ultimately use the rule as a bargaining chip with congressional Republicans to ensure that its greenhouse gas regulations survive. “I think they want that a little bit more” than the WOTUS rule, she said.


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