WOTUS rule sets up Senate fight

By Philip Brasher

© Copyright Agri-Pulse Communications, Inc.



WASHINGTON, May 27, 2015 - The Obama administration's release of its final Clean Water Act rule sets the stage for a battle with Congress in coming weeks that could divide Senate Democrats.

Administration officials said the 297-page rule would make it clear what streams, wetlands, ponds and ditches that are subject to regulation under the law. Some farm groups, including the American Farm Bureau Federation, withheld immediate comment on the rule's provisions, saying they needed time to analyze the specifics.

Agricultural experts say the new definitions addressed some concerns that farm groups had expressed but also raised new ones: The rule, for example, could expand the number of wetlands in the upper Midwest that are regulated under the law as "waters of the United States" (WOTUS).

Even before it was finalized, Republicans had started attacking the rule via a two-pronged strategy - provisions in fiscal 2016 appropriations measures that could delay its implementation and standalone bills that could kill the rule altogether.

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The chairman of the Senate Environment and Public Works Committee, Jim Inhofe, R-Okla., said Wednesday that the panel would soon vote on a bill (S. 1140) that would kill the rule and restrict how the EPA and Army Corps of Engineers could write the replacement.

He said the administration made the rule “even broader” instead of “fixing the overreach in the proposed rule.”

The bill would need 60 votes to overcome a Democratic filibuster, and in a recent interview with Agri-Pulse, Inhofe expressed optimism that the bill could get the necessary Democratic votes. He stopped short, however, of predicting the bill could get the two-thirds majority needed to overcome a presidential veto. Republicans have 54 Senate seats.

The House passed its version of the bill (HR 1732) 261-155 earlier this month. Only 24 Democrats supported the bill, leaving it 17 votes short of a veto-proof majority. The House also passed a fiscal 2016 Energy and Water appropriations bill that would delay implementation of the rule starting Oct. 1.

One key Democrat, Sen. Heidi Heitkamp of North Dakota, denounced the final rule soon after it was released Thursday.

“It's frustrating that after so much time, the EPA today decided to finalize this rule instead of conducting more consultations and releasing a revised rule as our legislation would require,” she said.

Sen. Amy Klobuchar, D-Minn., also could be under pressure to support the bill, given that Minnesota Rep. Collin Peterson, the ranking Democrat on the House Agriculture Committee, also attacked the rule almost immediately.

“I am committed to working with my colleagues on both sides of the aisle to explore all available options to ensure these arbitrary and subjective regulations never go into effect,” Peterson said.  

Klobuchar was among five Democrats, including Heitkamp, who voted in March for a non-binding amendment that endorsed limiting the reach of the Clean Water Act. Independent Angus King also supported the measure.

White House spokesman Eric Schultz declined to comment on the bills in Congress to kill the rule, although the White House has threatened to veto the House-passed measure. “What I can say is that we believe the rule today is a win-win, both for the economy and for public health,” he said.

Given the likelihood of a veto, Republicans know that the best chance they may have of stopping implementation of the rule, at least temporarily, is through an appropriations rider such as the one in the House Energy and Water spending bill.

Sen. John Hoeven, R-N.D., told Agri-Pulse that he expects such a rider to be included in spending legislation Congress ultimately sends to the White House. “It's going to pass in some form,” he said.

Administration officials said they wrote a number of new provisions in the final rule to address concerns that farm groups had raised about clarity and scope of the regulations. The rule also exempts erosional features, including gullies and rills, and provides more specifics as to what ditches qualify for regulation.

There are also new distance requirements to determine whether a water body is sufficiently “adjacent” to a navigable waterway to be regulated.

The rule “clearly demonstrates” that EPA “ took the concerns of family agriculture under serious consideration,” said National Farmers Union President Roger Johnson. 

However, new specifics in the rule for evaluating regional networks of wetlands, including the Prairie Potholes in the upper Midwest, and coastal wetlands in Texas, immediately raised concerns. Officials say that all wetlands in a watershed would be evaluated to determine whether they have a “significant nexus” with a navigable water. The definition of “significant nexus” is broad, including whether the wetlands help control flooding or provide wildlife.

I don't see how any pothole in the country could not be found to be WOTUS,” one agricultural consultant said, speaking on condition of anonymity. 

Jan Goldman-Carter, a wetlands expert for the National Wildlife Federation, agreed that the rule would likely ensure regulation of more wetlands.

“The new rule should restore protections for many prairie pothole wetlands,” she said. “By finding them similarly situated in the watershed they will be looked at for their aggregate impact on downstream waters applying the factors you list and a finding of significant nexus and therefore jurisdiction should be the outcome for most prairie pothole complexes.”

An exclusion for “lawfully constructed” grassed waterways also could emerge as an issue. The rule defines such features as lawful if the land wasn't jurisdictional when they were built or if they were constructed with a Clean Water Act permit.

Don Parrish, senior director of regulatory relations for the Farm Bureau, said his group still has significant concerns about the rule. "The agency said they listened. We're going to look at the rule and see if they heard us. What is in the rule, what is written down, is what matters," he said. 

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