CSAC Bulletin Article

Federal Issues Update: Waters of the U.S.

January 15, 2016

On Tuesday, January 12, President Obama delivered his seventh and final State of the Union address. In a break from tradition, the president did not lay out a lengthy list of policy initiatives. Instead, he used this opportunity to reflect on the accomplishments of his administration and offered an optimistic outlook for the future. For the remainder of his presidency, Obama pledged to continue working on issues such as climate change, campaign finance reform, and expanding educational opportunities, among other things. Of particular interest to counties, the president expressed his desire to work with both parties on criminal justice reform, as well as on prescription drug abuse.

Waters of the United States (WOTUS)

On the legislative front, the House this week approved a joint resolution (SJ Res 22) designed to block the Obama administration’s controversial Waters of the United States (WOTUS) rule. The “resolution of disapproval,” which would prevent the regulation from having any force or effect, cleared the Senate in November on a 53 to 44 vote. The measure now heads to President Obama, who is expected to promptly veto it.

While the Republican-controlled Congress has attempted to use various means to kill the WOTUS rule, past attempts have fallen short in the Senate, where 60 votes are generally needed to pass legislation. The latest effort, however, was done by using the Congressional Review Act (CRA), which allows the upper chamber to adopt by a simple majority a resolution overturning an executive branch regulation. Since the CRA’s passage in 1996, the law has been used only once to nullify an agency action.

Looking ahead, and in light of the expected presidential veto, congressional Republicans will likely renew their efforts to thwart the WOTUS rule via the annual budget and appropriations process. In the meantime, and on the legal front, the U.S. Court of Appeals for the Sixth Circuit will need to decide whether it ultimately has authority to hear a legal challenge to the regulation or whether a pending WOTUS lawsuit will be subject to review in U.S. District Court. In October, the Sixth Circuit issued a ruling that halted nationwide implementation of the WOTUS regulation. 

Following this week’s brief legislative session, House and Senate Republicans headed to Baltimore, Maryland, for their annual issues conference. During the retreat, GOP members discussed key issues facing their party and were hoping to outline a united legislative blueprint for the year. However, the two chambers were split in what they expect to accomplish this year. For his part, House Speaker Paul Ryan (R-WI) stated his preference for an aggressive schedule focused on conservative policy priorities. However, Senate Majority Leader Mitch McConnell (R-KY) favors a much less ambitious agenda, one that focuses primarily on processing the 12 annual spending bills and avoiding a government shutdown. It should be noted that House Democrats will hold their own retreat in Baltimore later this month.

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