November 4, 2015
On Monday, November 3, the Senate failed to garner the support necessary to move forward with a bill that would have required the U.S. Environmental Protection Agency (EPA) to withdraw and re-propose the regulation that clarifies the scope of the agency’s jurisdiction over “waters of the U.S.” under the Clean Water Act.
This bill was yet another attack to halt the already finalized regulations, which went into effect in late August. These challenges continue, despite the fact that the rule was the product of a twice-extended public comment period. It received significant attention from the public, and EPA worked to engage with farmers and ranchers throughout the rulemaking process, but nonetheless, the attacks from Congress continue.
The legislation (S. 1140), the Federal Water Quality Protection Act, was introduced by Senator John Barrasso (R-WY) earlier this spring but yesterday failed to garner the 60 votes needed to invoke cloture, 57-41. A cloture motion requires 60 votes to cut off debate and bring the measure to the floor. Majority Leader Mitch McConnell (R-KY) withdrew the bill from consideration after its supporters failed to pick up the 60 votes needed to invoke cloture on the motion.
The House passed a similar bill in May, but even if S. 1140 had made it through the Senate, the Obama Administration promised to veto the bill if it ever made it to the President’s desk. In a Statement of Administrative Policy released yesterday, the White House wrote that the final rule is grounded in science and law and is essential to ensure clean water for future generations.
“S. 1140 would require the agencies to expend scare resource to duplicate the transparent rulemkaing process just completed, which involved extensive public outreach and participation, including over 400 public meetings and 1 million public comments.”
Senators Call for Additional Clarification
Only four Democratic senators voted in support of S. 1140, providing insufficient support to move the bill forward for a vote. Senator Angus King (I-ME) voted against the legislation, and led a letter to EPA calling for clearer guidance regarding the implementation of the rule, in order to ensure that the rule is effectively and consistently interpreted. “Farmers, ranchers, water utilities, local governments, and contractors deserve this clarity and certainty.”
The letter was also signed by Senators Bill Nelson (D-FL.), Tim Kaine (D-VA.), Mark Warner (D-VA.), Dianne Feinstein (D-CA), Brian Schatz (D-HI), Chris Coons (D-DE), Tom Carper (D-DE), Jon Tester (D-MT), Michael Bennet (D-CO) and Amy Klobuchar (D-MN). The Senators expressed their opposition to the Federal Water Quality Protection Act, arguing that it undermines necessary and established protections.
“We believe the Federal Water Quality Protection Act offered by Senator Barrasso undermines the ability to adequately safeguard our precious waterways and undercuts a need for clarity on the appropriate jurisdiction of the Clean Water Act. Given the current stay placed on this rule by the Sixth Circuit Court of Appeals, this is also the wrong time for a legislative approach.”
The National Sustainable Agriculture Coalition (NSAC) supports this call for additional clarity on the rule, recognizing the need for EPA to stay engaged with farmers and ranchers throughout the implementation process.
Legislative “Disapproval” Moves Forward
After failing to gain cloture, the Senate agreed to debate a resolution also on the Clean Water Act, this time led by Senator Joni Ernst (R-IA), which would try to overturn the rule under the Congressional Review Act. The resolution passed, with a 55-43 vote. While it now heads to the House for consideration, the White House will veto the Ernst Resolution as well, and the votes to override a veto are not there.
The White House continued to highlight the problematic nature of the resolution to completely overturn the rule.
“If enacted, S.J. Res 22 would nullify years of work and deny businesses and communities the regulatory certainty needed to invest in projects that rely on clean water. EPA and Army have sought the views and listened carefully to the public throughout the extensive public engagement for this rule.”
“Simply put, S.J.Res. 22 is not an act of good governance. It would sow confusion and invite conflict at a time when our communities and businesses need clarity and certainty around clean water regulation.”
Critical Water Quality Protections Still on Hold
While these two votes were largely symbolic because of the White House veto threats, the waters of the U.S. rule is currently on hold due to court challenges.
On October 9, the U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay against the enforcement of the rule, after 13 states were initially granted a temporary injunction by a federal district court in North Dakota. While the rules were in effect in the 37 other states as of late August, the nationwide stay is now in place while litigation on the rule continues.
Appropriations Riders Also Threaten Clean Water
The Clean Water Rule will also face continued challenges as Congress again scrambles to fund the government for fiscal year (FY) 2016 by December 11, when the continuing resolution that extends FY 15 funding levels is set to expire. The House and Senate subcommittees that fund the EPA and Department of Interior both passed FY 2016 funding bills that included “policy riders” to stop EPA from administering the Clean Water Rule.
Congress is currently working to negotiate a funding deal, and NSAC will continue to oppose the inclusion of these riders in an omnibus funding package. These policy riders undermine farmer certainty and environmental priorities, including critical protections for clean water, public health, and sustainable agriculture.
The final rule is the result of ongoing outreach, engagement, and critical revisions, and we believe that continued engagement with the agricultural community is absolutely necessary for successful implementation of the rule.