Last week, the Senate Environment and Public Works (EPW) subcommittee on Fisheries, Water and Wildlife held a hearing on S. 1140, the “Federal Water Quality Protection Act”, a bipartisan sponsored bill to require the Secretary of the Army and the Administrator of the Environmental Protection Agency to propose a new regulation revising the definition of the term ‘‘waters of the United States’’, and for other purposes (the “other purposes” including requiring the agencies to withdraw the current proposed rule on WOTUS and to meet certain criteria through a new proposed rule developed through collaborative outreach to states and other stakeholders). 

Full Committee Chairman James M. Inhofe (R-OK) opened the hearing, stating that he cosponsored the legislation because the EPA and Corps WOTUS proposal was not transparent or collaboratively developed with the blessing of states and other stakeholders, and EPA’s response to this criticism was “very telling”.  He said that “rather than withdrawing their proposal and starting over with the input of farmers, small businesses, local governments and states, as noted in today’s New York Times, EPA went into campaign mode.”  He also stated that “our legislation does not allow the rule to go forward in its current form.  EPA and the Corps of Engineers will have to go back and comply with the laws and Executive Orders that are designed to improve regulations and report to Congress on how they met those obligations.” 

Sen. Sheldon Whitehouse (D-RI), ranking member on the subcommittee, as well as subcommittee member Edward Markey (D-MA) both vehemently opposed the legislation (even though the bill currently has three Democrat cosponsors), arguing that the rule was necessary to clear up the Supreme Court’s WOTUS decisions in Rapanos and SWANCC.  They stated that the states could not adequately protect waters unilaterally without federal oversight, as downstream states could not rely on upstream states to do what was necessary to protect interstate waters.  Sen. Whitehouse stated that S. 1140 was not consistent with how the CWA was originally designed to work.

EPW Committee Chair Inhofe has vowed to markup the bill in committee soon, although no schedule has been set.  He has called for a Government Accountability Office (GAO) review of the EPA outreach effort on the WOTUS rule to see if any federal anti-lobbying laws were broken.  As we have reported, the House last week passed HR 1732, the “Regulatory Integrity Protection Act of 2015”, a similar measure to S. 1140, and the House-passed FY2016 Energy and Water Development Appropriations bill contains a rider defunding implementation of the WOTUS rule in the Corps budget (see Senate Approps article below). 

Also last week, the Senate Committee on Small Business and Entrepreneurship held an oversight hearing on WOTUS and why the agencies did not conduct a Small Business Regulatory Enforcement Act (SBREFA) review on the rule.  Under the Regulatory Flexibility Act, a federal agency must conduct SBREFA panels on rules that would have a significant economic impact on small business entities. Those panels are intended to give small business representatives a chance to understand the proposed rule and help the agency contemplate its impact on small businesses and weigh alternatives.  In the case of the WOTUS rule, the Obama Administration has said that the regulation would not have a significant impact on small business and thus did not conduct SBREFA panels.  As you may recall, the Small Business Administration (SBA) Advocacy Office, which operates independently of the SBA and Obama Administration, has called for the current WOTUS rule to be withdrawn and for the agencies to go back and do a SBREFA review panel.

Witnesses testified that the federal agencies' estimate about the proposed WOTUS rule's impact on small businesses was based on a comparison with the scope of federal jurisdiction before the 2001 court case. He said that the agency should have compared the impacts of a proposed rule with the scope of jurisdiction under EPA CWA guidance issued in 2008, not prior to the Supreme Court rulings. Sen. David Vitter (R-LA), who chairs the Small Business Committee, said he plans to introduce a “sense of the Senate” resolution condemning the fact that a small business review panel was not conducted on the WOTUS rule and will hold a committee vote on it.

Committee ranking member Jeanne Shaheen (D-NH) raised concerns about the WOTUS rule’s lack of consideration of impacts to small businesses and agreed with some of the concerns raised in the testimony.  Sen. Shaheen has been a supporter of the WOTUS rule in the past, but now may be inclined to vote for a bill limiting or prohibiting the rulemaking.