Democrats press EPA as GOP forces passage of anti-WOTUS measure

By Philip Brasher

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WASHINGTON, Nov, 4, 2015 - Republicans knew they didn't have the votes to repeal the Obama administration's Clean Water Act rule. But they managed to put Senate Democrats on the hot seat over the issue. 

The Senate on Thursday approved a resolution to kill the rule, 53-44, a margin far short of the two-thirds majority needed to overcome a certain presidential veto. Just three Democrats broke party ranks to support the measure. 

But ahead of the vote, 10 other Democrats and Maine independent Angus King sent a letter to the Environmental Protection Agency and Army Corps of Engineers warning that they might support future efforts to overhaul the rule if regulators fail to provide “clarity” or honor “traditional exemptions.” The latter is a reference to fears in agriculture that the rule will sharply expand the number of ditches, wetlands, streams and other areas regulated by the law as “waters of the United States” (WOTUS).

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The agencies “can and must do better to address the legitimate issues that have been raised in regards to the implementation of this rule,” the senators wrote. “We call on the EPA and Army Corps of Engineers to provide clearer and concise implementation guidance to ensure that it the rule is effectively and consistently interpreted.”

Senate Democrats on Tuesday blocked a bill sponsored by John Barrasso, R-Wyo., that would force the administration to rewrite the rule with tight restrictions on its scope. The bill needed 60 votes to advance to a full debate but it fell three votes short of that threshold, 57-41. GOP leaders then turned to their fallback measure, the disapproval resolution, which didn't need 60 votes to overcome a filibuster, and then passed Wednesday. 

The White House issued statements of administration policy threatening veto of both measures, but Senate Environment and Public Works Chairman Jim Inhofe told reporters that Republicans still achieved their goal of bringing political pressure on Democrats over the issue. 

“That forces accountability. Otherwise  … senators will be able to go home and say to all the people who are upset that, ‘Well it wasn't me. I didn't have untying to do with it. This forces them to vote on it. I think that's good,” said Inhofe, R-Okla. Republican Whip John Cornyn of Texas warned during debate on the resolution that opponents “will live to regret the decision.”

In light of the letter from the 11 senators, Inhofe said he was encouraging Barrasso to push for another vote on his legislation.

The 11 senators included Amy Klobuchar, D-Minn.,who with King voted for a non-binding, anti-WOTUS amendment in March. The other nine senators who signed the letter:  Bill Nelson of Florida, Tim Kaine and Mark Warner of Virginia, Dianne Feinstein of California, Brian Schatz of Hawaii, Chris Coons and Tom Carper of Delaware, Jon Tester of Montana and Michael Bennet of Colorado. 

An aide to one of the senators said they hope the agencies will issue an adequate clarification of the rule while its enforcement is suspended under court review

Sen. Claire McCaskill, D-Mo., voted to debate the Barrasso bill, along with fellow Democrats Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia, but broke with them and voted against the disapproval resolution.. 

The House, which passed a similar version of the Barrasso bill, is expected to take up the Senate version of the disapproval resolution, but no timing has been announced.

"The House remains committed to ditching this rule and I look forward to House consideration of this resolution in the coming weeks,” said House Majority Leader Kevin McCarthy, R-Calif.

“If the President holds firm on his threat to veto, he will have to explain why he thinks disregarding the people and the courts to expand the power of Washington's bureaucracy is the best way to move our country forward."

Rep. Adrian Smith, R-Neb., introduced a version of the resolution that has 68 cosponsors, including three Democrats. It was critical that the Senate vote on the issue before expiration of the expedited procedures set by the Congressional Review Act, said Smith spokeswoman Emily Miller. 

Meanwhile, Republicans are likely to try to use a government-wide spending bill due in December to ensure the administration can't enforce the WOTUS rule, even if the federal courts allow it to go forward. 


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John Hoeven, a North Dakota Republican who sits on the Senate Appropriations subcommittees that oversee EPA and the Army Corps of Engineers, said the spending provision would essentially ensure that the WOTUS rule can't be enforced while President Obama is in office at the least. 

Jan Goldman-Carter, senior manager for wetlands and water resources at the National Wildlife Federation, said she was "very concerned" that Hoeven would succeed. "We understand that our work to defend the rule against congressional attack is far from done," she said. 

A North Dakota federal judge issued an order in August blocked enforcement of the rule in 13 states, and then the Sixth U.S. Circuit of Appeals last month extended the stay nationwide. The Sixth Circuit, based in Cincinnati, has scheduled oral arguments Dec. 8.


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