The EPA's final rule on just what counts as "Waters of the US" (WOTUS) is projected to be finalized this month, but its opponents are fighting it hard. The proposed rule would be the most significant update in years to the Clean Water Act, originally enacted in in 1972. It makes it unlawful to discharge any pollutant from a point source into navigable waters, unless a permit was obtained. For more information about the proposal's origins, read here.
The EPA's director Gina McCarthy has said that the agency intends to finalize an official rule before summer. Debate is once again stirring, as it appears that opponents in the Senate will have enough votes to pass legislation blocking the rule.
What's Going On in the Senate?
Past attempts to block the rule have fallen short, but on March 25, the Senate approved an amendment from Sen. John Barasso (R-Wyo.) that was seen as a referendum on the EPA WOTUS proposed rule. It passed by a vote of 59-40, with Ted Cruz (whose opposition to the rule is already known) not voting. That would theoretically give opponents the 60 votes they need to pass blocking legislation and override a presidential veto if the House, as expected, passes the same measure.
What that actually means is more complicated, though, because the Barasso Amendment just passed is much milder than past amendments, which have failed. This amendment merely seeks to ensure that the EPA's rule "is focused on water equality" and proposes areas in which to limit federal authority. Since any attempt to block the rule might not garner 60 votes, opponents are pressuring the administration to publish the rule for another round of public comments, hoping to lengthen the process until 2016 electoral politics make it much harder for the Obama administration to finalize any rule.
Farm Opposition Becoming More Critical
On March 24, Sen. Pat Roberts (R-Kan.), Chairman of the Senate Committee on Agriculture, Nutrition, and Forestry, led a hearing on the WOTUS rule. It featured two panels of state and local officials as witnesses, as well as key agricultural industry representatives impacted by the regulation. Video and transcripts of witness testimonies are available here.
In his opening statement, Roberts expressed concern that the EPA has "plunged ahead" despite stakeholder concerns over its process, saying,
"EPA contends that the proposed rule would have a minimal economic impact. Many strongly disagree with that assertion-- and a study commissioned by a broad-based network of impacted stakeholders, the Waters Advocacy Coalition, suggests otherwise. The study raises critical questions and criticisms with regard to many assumptions EPA factored into the agency’s cost benefit analysis. If anything, more economic analysis is needed before any significant change to current law is made." Commissioner Lynn Padgett, of Ouray County, Colo., testified at the hearing on behalf of the National Association of Counties. While the counties support common-sense protections, she said, the proposal's unclear language made them fear that it would produce unforeseeable, unintended consequences.
“This proposal exacerbates problems with the current permitting process," Padgett went on. "It would cause greater delays in critical work, public safety risks and additional financial costs without benefiting the environment.”
Some witnesses asked for regional definitions of jurisdiction, to account for differing topography across the country and avoid the necessity of broad definitions to accommodate it.
Sen. Debbie Stabenow (R-Mich.), the panel's ranking member, said in her statement that she believed appropriate changes would be made to give the agricultural stakeholders the certainty for which they were asking.
EPA Administrator Apologizes
EPA Administrator Gina McCarthy has apologized for vague language and said that she should have initially named the proposal the "Clean Water Rule" rather than the "Waters of the US Rule." Such remarks have drawn fire from her opponents, however, who accuse her of trying to overlook serious problems with the rule by simply changing the name. Speaking to the National Farmers Union in Kansas, McCarthy said that, “Even if we had a less-than-ideal start, that doesn't preclude us from getting this done right.”
While offering no specifics, she said that the final rule would clarify EPA jurisdiction, ensuring, for example, that erosional features on farmland would be exempt, and that the definitions of "tributary" and "other waters" would be specified.
Both opponents and supporters of the WOTUS rule are still lobbying hard for their respective arguments, but the majority of the public commentary is critical, coming most strongly from farmers, agricultural and mining interests, and the Republicans supported by them. The Obama administration has been more vocal on the related EPA regulations of coal and mining industries, but has made it clear it isn't going to be stymied by Senate attempts to block the rule.
An Issue Brief Prepared by
Kathleen Bishop, Public Policy Intern
Warwick Group Consultants, LLC