Senate sends message against Clean Water rule with farm-state Democratic support

By Philip Brasher

© Copyright Agri-Pulse Communications, Inc.



WASHINGTON, March 25, 2015 -With some critical Democratic support, the Senate endorsed limiting the reach of a rule proposed by the Obama administration to re-define what ditches, ponds and other features are regulated by the Clean Water Act.

The 59-40 vote on a non-binding amendment to the Senate budget resolution served as a test of support for blocking or rolling back a rule proposed a year ago to define what can be regulated under the law as “waters of the United States” (WOTUS).

The margin suggested there could be a filibuster-proof, 60-vote margin for a standalone WOTUS bill or amendment later. The lone senator who missed the vote, Texas Republican Ted Cruz, would have provided the 60th vote.

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However, the vote on the measure, sponsored by John Barrasso, R-Wyo., was well short of the two-thirds margin that would be necessary to overcome a presidential veto.

Five Democrats and Maine independent Angus King supported the amendment, which spelled out various features that should be exempt from the anti-pollution law including isolated ponds, roadside ditches, irrigation ditches and stormwater systems.

Republicans will try to block enforcement of the WOTUS rule through the fiscal 2016 appropriations process but would prefer to kill the measure outright, which would require separate legislation. Barrasso told Agri-Pulse that the Democratic support showed there is “an opportunity to get something like that to the floor.”

The budget resolution, which doesn't need to be signed by the president, is providing an opportunity for senators to offer amendments that will serve as test votes on a variety of issues.

Sen. Jeff Flake, R-Ariz., is sponsoring several attacking the crop insurance program. One calls for eliminating premium subsidies for farmers with adjusted gross incomes exceeding $750,000 a year. A second proposes ending premium subsidies for policies with the Harvest Price Option (HPO). A third calls for disclosing the names of policy holders.

Most of the Democrats who voted for the Barrasso amendment, except Joe Manchin of West Virginia, represent major farm states: Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota, Amy Klobuchar of Minnesota and Claire McKaskill of Missouri.

There might have been more Democratic support for the amendment but for a competing measure sponsored by the ranking member of the Senate Agriculture Committee, Debbie Stabenow of Michigan. Her amendment, adopted 99-0, called for protecting existing exemptions for agricultural practices while relying on scientific standards for protecting water quality.

“We can do both and we need to do both,” she said. Barrasso's amendment “was overly broad and frankly unclear” and threatened to roll back improvements in the Great Lakes, Chesapeake Bay and other water bodies, she said.

Barrasso fired back that Stabenow's amendment failed to address protections for cities and other local governments that have also raised concerns about the proposed rule. “They want certainty, certainty regarding EPA's power grab,” he said.

Barrasso also touted the American Farm Bureau Federation's support for his amendment.

Don Parrish, an environmental policy specialist for the Farm Bureau, called the Barrasso amendment a “step in the right direction.”

“All this does is clarify in a nonbinding budget resolution what EPA has already said they are not regulating,” he said.

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The amendment said that enforcement of the Clean Water Act should be “focused on water quality, which may include limiting jurisdiction based on the movement of birds, mammals, or insects through the air or over the land, the movement of water through the ground, or the movement of rainwater or snowmelt over the land, or limiting jurisdiction over puddles, isolated ponds, roadside ditches, irrigation ditches, stormwater systems, wastewater systems, or water delivery, reuse, or reclamation systems.”

Barrasso said the amendment would make “crystal clear” what the law shouldn't regulate.

The Obama administration has said it doesn't intend for its rule to cover any of these features. "Well, this amendment spells it out,” Barrasso said.

Sen. John Hoeven, a North Dakota Republican who is cosponsoring the amendment, said earlier that the vote could indicate whether there is enough support to kill the rule. Otherwise the only remedy will be to use the appropriations process to block enforcement of the rule for fiscal 2016, which starts Oct. 1.

“We're either going to deauthorize or defund it this year. We're going to do one or the other,” said Hoeven, who is a member of the Senate Appropriations Committee. “If we can deauthorize 'waters of the U.S.' then that's a permanent fix. If we can't get that done, then I'll include a provision to defund it, but that's just a one-year fix.”

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