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House Will Vote to Stop ‘WOTUS’ Rule

01/12/2016

President Obama Needs to Sign this Regulatory Life Raft to Small Businesses

By Karen Kerrigan

Thanks to the leadership of Sen. Joni Ernst (R-IA), the Senate passed a “joint resolution of disapproval,” under the Congressional Review Act (CRA), of EPA’s terrible “Waters of the United States” (WOTUS) rule, by a bipartisan vote of 55 to 43 this past November.  The measure is now before the House, where members will cast their votes on Wednesday, January 13.  Given clear EPA overreach and the rule’s widespread unpopularity, we expect the Ernst “CRA” to pass overwhelmingly — again with bipartisan support.  The only thing left to do is for President Obama to sign it.

If he vetoes it, the President will be snubbing 31 states, which have sued in federal court to overturn WOTUS.  He must know that their lawsuit is succeeding.  Last October, the U.S. Court of Appeals for the Sixth Circuit blocked the rule’s implementation, finding that the states have a “substantial possibility of success on the merits.”  In its majority opinion, the court found, among other things, that EPA violated the basic procedures of notice-and-comment rulemaking under the Administrative Procedure Act.  The majority also noted:

What is of greater concern to us, in balancing the harms, is the burden—potentially visited nationwide on governmental bodies, state and federal, as well as private parties—and the impact on the public in general, implicated by the Rule’s effective redrawing of jurisdictional lines over certain of the nation’s waters.

President Obama would also be ignoring concerns expressed about the rule’s unreasonable restrictions on growth and development by the U.S. Conference of Mayors, the National League of Cities, the National Association of Counties, and the National Association of Regional Councils.  Not to mention serious concerns from small businesses.  As I noted in a blog post last November, the Chief Counsel for the Small Business Administration Office of Advocacy determined that the rule “will have a direct and potentially costly impact on small businesses.”

Along with the 6th Circuit Court of Appeals, a federal district court in North Dakota has also enjoined WOTUS (now referred to by EPA, in typical Orwellian fashion, as the “Clean Water Rule”).  In his decision, Chief District Judge Ralph Erickson examined an EPA administrative record that, in his view, is “inexplicable, arbitrary, and devoid of a reasoned process.”  He also concluded that the “breadth of the definition of a tributary set forth in the Rule allows for regulation of any area that has a trace amount of water.”

Let’s hope this is the end of the line for WOTUS.  For small businesses engaged in expansion, growing and building things, including energy and transportation infrastructure, this rule is a major impediment to economic growth and investment.  President Obama, please sign the WOTUS CRA. It’s time to throw in the towel on this one, and cast a regulatory life raft to small businesses. WOTUS is a terrible rule, which was terribly crafted.

Karen Kerrigan is president & CEO of the Small Business & Entrepreneurship Council (SBE Council). The Center for Regulatory Solutions is a project of SBE Council.