On Wednesday, June 10, the House Subcommittee that funds the Environmental Protection Agency (EPA) and Department of Interior (DOI) passed its fiscal year (FY) 2016 spending bill, voting to cut EPA funding and include a “policy rider” to stop EPA from administering its Clear Water Rule, also known as the Waters of the United States (WOTUS) rule.

The bill provides a total of $30.17 billion, which is $246 million less than current funding levels and $3 billion less than the President’s FY 2016 budget request. For EPA, the bill cuts $718 million, or 9 percent, relative to current funding levels.

According to Representative Nita Lowey (D-NY), Ranking Member of the House Appropriations Committee, if enacted, this would be the lowest funding level for EPA since 1997. The bill also caps the number of EPA employees at 15,000, which would be the lowest level since the late 1980s.

In addition to slashing the EPA budget, the funding bill includes more than 20 policy riders aimed at undermining a variety of President Obama’s environmental priorities, including regulations that limit carbon emissions and protect waterways, wetlands, and endangered species.

Clean Water Rider

One policy rider prohibits EPA from using any funds to implement its Clean Water Rule, which clarifies the scope of the Clean Water Act (CWA). Since the passage of the CWA in the early 1970s, multiple Supreme Court cases have generated confusion around what constitutes a “water of the U.S.” and thus warrants protection under the Act. EPA recently closed an extended comment period and issued a final rule after having received over 1 million comments on its proposed rule. NSAC submitted comments on the proposed rule in November 2014. 

Concurrent with today’s House Subcommittee markup, the Senate Committee on Environment and Public Works passed out a bill, introduced by Sen. John Barrasso (R-WY), which like the WOTUS rider included in the House appropriations bill, bars EPA from administering the Clean Water Rule. The House passed a companion bill in May.

Senate Stand Alone Bill

The Senate Committee markup on the bill, S. 1140, or the Federal Water Quality Protection Act, opened with remarks from Committee Chairman James Inhofe (R-OK) expressing concern about EPA “regulatory overreach” negatively affecting American farmers and ranchers. Sen. Barbara Boxer (D-CA), the Ranking Democrat, followed by raising concerns about S. 1140 weakening the existing Clean Water Act and creating even more confusion in future regulation.

There were five amendments raised to weaken the provisions in the bill, one by Senator Ben Cardin (D-MD), three by Senator Boxer (D-CA), and one by Senator Ed Markey (D-MA). The Committee rejected all five amendments on a strictly partisan vote basis, including one that Boxer thought might have a chance for some bipartisan support, negating the underlying measure if it was determined to increase federal costs.

The Committee then voted 11-9 in favor of passing the bill to force the EPA to withdraw its final WOTUS rule, again on a party line vote. Senator Boxer declared that the Committee was ripping the heart out of the Clean Water Act and that the meeting was a new low point for her on the Committee.

Difficult Path Forward

Despite passing both the House and Senate, Senator Barrasso’s bill is unlikely to become law, given that a very significant number of Democratic votes would be needed to override a presidential veto.

However, Sen. Lisa Murkowski (R-AK), who chairs the Senate Appropriations Subcommittee on Interior and Environment, intends to also include the WOTUS rider in the Senate’s version of the Interior-Environment appropriations bill for FY 2016. Vetoes on appropriations bills are far more difficult for Congress to override, and if Congress sends all appropriations bills to the President as a package (known as an “omnibus” appropriations bill), the President may be less inclined to use his veto authority in the first place.

In all likelihood before it even reaches that point, there will be a set of negotiations between the White House and the Hill to try to settle some of the myriad spending and policy rider issues.

We will continue to track and report on both stand-alone WOTUS legislation and the appropriations process as they move forward.