Fate of Obama water rule may become clearer in next few weeks

By Annie Snider | 03/16/2015 07:24 AM EDT

The next couple of weeks could be a turning point for the Obama administration’s controversial water proposal — one way or the other.

As U.S. EPA and the Army Corps of Engineers press ahead with the goal of finalizing their "Waters of the U.S." rule this spring, some of the most vocal opposition has come from farmers and ranchers.

But agricultural groups aren’t all in lock step.


The American Farm Bureau Federation, the National Beef Cattlemen’s Association and a handful of other powerful trade groups have staked out staunch opposition, calling for nothing less than a withdrawal of the rule. Other groups have quietly engaged with the federal agencies, raising concerns with the current language and offering suggestions for how to make it more palatable.

Whether or not opponents on Capitol Hill can gather enough votes to kill the rule could hinge on how effective the Obama administration is at convincing the latter set of agricultural groups that their concerns are being addressed.

This week will offer some hints at where the conversation stands.

Later today, EPA Administrator Gina McCarthy will be in Wichita, Kan., to address the National Farmers Union — a group that has been eager to see the longstanding confusion over the scope of the Clean Water Act cleared up.

NFU was quick to welcome the water rule when the agencies proposed it last year, but, after fuller consideration, raised concerns that it was creating more confusion than clarity and that the agencies were not doing a good enough job of answering questions about it (Greenwire, July 21, 2014).

Ultimately, NFU says its goal is to have a rule that will not increase federal jurisdiction and that will promote consistent application of EPA policies (Greenwire, Sept. 22, 2014).

McCarthy’s speech today will offer her another shot at mending EPA’s difficult relationship with the agricultural community. Her first major attempt came last summer with a speech before the Kansas City Agribusiness Council during a surge of controversy over the water rule in farm country (E&ENews PM, July 10, 2014).

But if McCarthy’s speech faces a tough reception with NFU, the administration’s chances of alleviating anxiety among other agricultural groups will start looking even slimmer.

Two airings this week in the House

Meanwhile, a pair of hearings later this week should show how congressional opponents of the water rule plan to approach it this session.

Last year, the House approved a measure that would have blocked the current administration’s water rule and created a state and local consultation mechanism for developing an approach to dealing with long-standing confusion around the scope of the Clean Water Act. Although it won the support of 35 House Democrats, the bill stalled in the Democratic-controlled Senate.

Now in the majority in both houses, Republican leaders have yet to signal their legislative strategy this year. Rep. Paul Gosar (R-Ariz.) has introduced similar legislation to the bill that cleared the lower chamber last year, H.R. 594, which has so far drawn 174 Republican co-sponsors. But key Republican leaders, including House Transportation and Infrastructure Chairman Bill Shuster (R-Pa.) and the committees’ water resources and environment subpanel chairman, Rep. Bob Gibbs (R-Ohio), have not signed on.

Clues about their approach could come during a Wednesday hearing of Gibbs’ subpanel on EPA’s budget for its water and hazardous waste programs. With EPA’s top water official, Ken Kopocis, slated to testify, the water rule is likely to be the top topic.

The House Agriculture Committee’s conservation and forestry subcommittee will also get a shot at the proposal. The subcommittee is holding its rescheduled hearing on the water rule tomorrow. Although the subpanel does not have jurisdiction over the issue, subcommittee Chairman Glenn Thompson (R-Pa.) has said he wants to give members an opportunity to delve into the topic.

It will be the first hearing of a congressional agriculture committee specifically on the water rule.

Although the issue has come up during any number of committee hearings over the past year, only the interpretive rule for agriculture that EPA and the Army Corps released in consultation with the Department of Agriculture has received an official hearing from the House Agriculture Committee. The interpretive rule, widely disliked by both environmentalists and agricultural groups, was killed in the fiscal 2015 CRomnibus bill (E&E Daily, Dec. 10, 2014).

The Senate Agriculture Committee is also preparing to hold a hearing on the overall rule. A committee spokeswoman confirmed that one is in the works, although she said last week that a date had not been set.

Democrats on that committee are ground zero for supporters of the rule struggling to maintain enough votes to prevent a veto override or keep a policy rider out of a must-pass measure. Only four Democrats who voted to kill the water rule through a failed 2013 policy rider are still serving in the upper chamber, and two — Sens. Joe Donnelly (D-Ind.) and Heidi Heitkamp (D-N.D.) — serve on the agriculture committee.

That looming hearing promises to offer advocates on both sides of the battle over the water rule a quick read on whether their labors this week pay off.

Schedule: The House Agriculture subcommittee hearing is Tuesday, March 17, at 2 p.m. in 1300 Longworth.

Witnesses: TBA.

Schedule: The House Transportation and Infrastructure subcommittee hearing is Wednesday, March 18, at 10:30 a.m. in 2167 Rayburn.

Witnesses: EPA water chief Ken Kopocis; and Mathy Stanislaus, assistant administrator for EPA’s Office of Solid Waste and Emergency Response.