On Jan. 13, the U.S. House of Representatives easily passed a resolution of disapproval (Senate Joint Resolution 22) that would repeal the revised “Waters of the U.S.” (WOTUS) rule by a vote of 253–166. The same resolution was passed by the Senate in November by a vote of 53–44.
S.J.Res.22 uses the Congressional Review Act (CRA) to kill the WOTUS rule and prohibits EPA and the Army Corps of Engineers from using any “substantially similar” provisions in future WOTUS rule-makings. The CRA is a rare procedural move that allows Congress to overturn any “major” federal rule through a resolution of disapproval and requires a presidential signature for enactment. The CRA has only been used once successfully — in 2001 to overturn a Department of Labor ergonomics rule. NACo has no official position on S.J.Res.22.
The bill will now be sent to the White House for review. But the Administration has already indicated it would veto S.J.Res.22, and at this point, neither chamber can override the expected veto. That returns the game to the courts over the next several months. Court decisions questioning the WOTUS rule may give momentum to movement on Capitol Hill.
In December 2015, the 6th U.S. Circuit Court of Appeals heard oral arguments on whether it has the authority to hear the case—its decision is expected within several months. In the meantime, the court temporarily halted implementation of the Waters of the U.S. rule nationally until its jurisdiction could be determined.
In a separate development, the U.S. Judicial Panel on Multidistrict Litigation denied the Department of Justice’s request to consolidate other WOTUS lawsuits filed separately in district court against EPA and the Corps.
These developments only increase the complexity because it remains unclear whether challenges to the rule will ultimately be heard in circuit or district courts. This will likely lengthen the timeframe of the rule’s judicial proceedings and highlights the need for a legislative fix.
Twelve House Democrats and 241 Republicans voted in support of S.J.Res.22. Only one Republican and 165 Democrats voted against.
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