April 22, 2016
By voting down an amendment yesterday, April 22, that would have halted the implementation of the “Waters of the United States” rule, the Senate has provided much needed clarity for farmers and ranchers regarding which waters on their land are subject to permitting requirements. The National Sustainable Agriculture Coalition (NSAC) and our member organizations worked hard to educate the Senators on the importance of this rule, and stood firmly with the Administration in our support of its passage.
The now finalized rule revises the existing definition of “waters of the U.S.” under the Clean Water Act , protecting clean water for public health as well as for agriculture. Despite the recent success of the Act in the Senate, however, legal challenges still stand in the way of implementation.
For detailed analysis and background on how the final rule revised the definition of “waters of the US” to address specific concerns from the agricultural community, see our blog post from 2015.
Clean Water Protected in Senate’s Energy and Water Spending Bill
The amendment to block the implementation of the Waters of the United States rule, introduced by Senator John Hoeven (R-ND), failed 56-42 – short of the 60 votes it needed to be included in the fiscal year (FY) 2017 energy and water spending bill.
Even before the Senate debated the amendment, the White House promised to veto the spending bill if it were to contain such a provision, declaring “The Administration strongly objects to the inclusion of problematic ideological provisions that are beyond the scope of funding legislation.”
The vote on the Hoeven amendment represented the latest in a string of attacks against updated clean water regulations. Last November, the Senate also failed to garner the support necessary to move forward on a stand-alone bill that would have required the U.S. Environmental Protection Agency (EPA) to withdraw and re-propose the regulation. The bill failed to garner the 60 votes needed to cut off debate and bring the measure to a final vote, 57-41.
The Senate’s recent vote on the Hoeven amendment was nearly identical to last year’s failed cloture vote, with the same four Democrats crossing the aisle to vote in favor. This time, however, Senator Susan Collins (R-ME), who had voted in support of last year’s bill that called on the agencies to rewrite the rule, voted against the Hoeven amendment. Collins joined 41 Democrats in taking a stand to protect the rule and allowing the legal battles play out in the courts.
NSAC strongly also opposed the Hoeven amendment, and we applaud those who voted to keep this anti-clean water and anti-farmer provision out of the annual appropriations process.
While the Senate is likely to pass its energy and water funding bill for FY 2017 (S 1140) without the inclusion of Senator Hoeven’s amendment early next week, the spending bill on the House side already contains identical language to block the implementation of the rule. The House Appropriations Committee approved their energy and water spending bill earlier this week; next it will head to the House floor for a vote.
Legal Battles Continue
Yesterday’s vote on the Hoeven amendment came the same day that the Cincinnati-based 6th Circuit Court of Appeals declined to grant a rehearing of its earlier opinion that federal appellate courts, not local district courts, have jurisdiction to hear challenges under the Clean Water Act. In this opinion, the court denied petitions from states, industry groups, and property rights activists who opposed the rule and were requesting that the court rehear their arguments regarding where the legal battle should continue.
How did the rule get tied up in all these legal battles? Wasn’t it finalized last year?
Despite the fact that EPA conducted a robust rulemaking process, including significant outreach and engagement with the agricultural community, opponents of the rule have been stirring the anti-regulatory sentiment in an effort to stall further protection of our nation’s waterways.
After the Clean Water Rule was finalized in June 2015 and went into effect in August 2015, legal challenges quickly followed. There were several lawsuits brought against the EPA to stop enforcement of the final rule, and on October 9, 2015, the U.S. Court of Appeals for the 6th Circuit placed a nationwide “stay” on the revised Clean Water Rule until further action of the court.
This meant that the EPA and the Corps resumed nationwide use of the agencies’ prior regulation defining “waters of the US,” which NSAC and others in the sustainable ag community have long considered to be murky at best. Until further legal action, determining which waters are protected by the Clean Water Act would follow regulations implemented before August 27, 2015. This pause in the implementation of the final rule creates further confusion for farmers and landowners regarding which waters on their land are subject to permitting requirements.
NSAC believes that the final Clean Water Rule includes critical revisions, and that continued engagement with the agricultural community is absolutely necessary for the successful implementation of this rule.
We are pleased to see the Hoeven amendment defeated, as these policy provisions undermine farmer certainty and environmental priorities, including critical protections for clean water, public health, and a more sustainable agriculture. We will continue to report on the fate of the rule’s implementation as the legal battles continue.