Senate critics of President Obama’s hot-button water rule unveiled legislation today that would send U.S. EPA and the Army Corps of Engineers back to the drawing board.
The bipartisan "Federal Water Quality Protection Act" was crafted with hopes of wooing moderate Democrats who’ve been getting an earful on the rule back home but are reluctant to oppose the president.
Sens. John Barrasso (R-Wyo.) and Joe Donnelly (D-Ind.) filed S. 1140 with the backing of Democrats Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia and eight Republican co-sponsors, including Senate Majority Leader Mitch McConnell of Kentucky.
The bill would require the agencies to propose a new rule defining which streams and wetlands are protected under the Clean Water Act. The law’s reach has been muddled for 15 years by two confusing Supreme Court decisions.
Under the legislation, the new rule would have to adhere to a series of principles relating to what types of waters can and cannot be covered, and what types of factors can be used to justify federal oversight. The measure would also require that the proposal be subject to a broader range of regulatory reviews than the current rule went through, including ones for impacts on small businesses and unfunded mandates.
"We’ve been working together for months on dealing with this, and we’ve introduced a bill that we believe is a strong and a bipartisan bill that’s going to protect American waterways and American farmers, ranchers and landowners," Barrasso said at a Capitol Hill press conference.
He said the bill will go through committee consideration and markup but that he did not know if floor time had yet been secured.
Democratic co-sponsors of the bill emphasized that they did not think the issue should be partisan.
"I believe that this is an effort for Congress to do what Congress ought to do when we have this kind of controversy, which is step in, provide guidance, be respectful in terms of where the boundaries are, but do our job in helping contain and define where regulation should go and where regulation shouldn’t go," Heitkamp said.
Groups opposing the current rule came out in force for the new Senate measure this morning. More than 80 agricultural groups signed onto a letter of support, and American Farm Bureau Federation President Bob Stallman thanked lawmakers in a statement for "paving the way to safeguard both farmers and their land."
The Waters Advocacy Coalition — a coalition of a wide array of industries opposing the rule — also back the new bill, as do groups of local leaders that have been concerned by the regulatory proposal, including the National Association of Counties and the U.S. Conference of Mayors.
Conservation groups staunchly oppose the bill.
"After nearly 15 years of Clean Water Act confusion, and just weeks away from a final rule that could put this issue to rest, Congress continues to look for every way to snatch this opportunity away from sportsmen at the eleventh hour," said Jimmy Hague with the Theodore Roosevelt Conservation Partnership by email. "Kicking the can further down the road is unnecessary and counterproductive, yet that’s just what the Senate bill does."
The agencies sent the final rule to the White House earlier this month for interagency review and are hoping to release it before summer.
EPA Administrator Gina McCarthy has acknowledged that the proposed rule’s rollout was rocky but has said that the final rule contains changes that will address stakeholders’ top concerns. She and groups backing the rule have urged lawmakers to wait to act until they see the final rule.
But co-sponsors of the new bill say it would not delay efforts to clear up confusion over Clean Water Act jurisdiction and point to language in the bill that says agency leaders "shall use best efforts" to publish a final rule by the end of 2016.
Backers of the current rule say those deadlines would be nearly impossible to meet, though, and once presidential campaigns hit full swing later this year, substantive regulatory work is likely to grind to a halt. A rule proposed at the end of the Obama term could also be more vulnerable to Congressional Review Act disapproval.
Can they get to 67?
The new Senate measure is the latest and leading of a number of percolating legislative efforts on the water rule.
The House voted last year for legislation to kill the current rule and is slated to vote tomorrow on its energy and water spending bill, which contains a provision to block it. The lower chamber could also vote before the end of the week on a measure from authorizers to send the federal agencies back to the drawing board on the water rule.
Both measures are expected to pass.
But in the Senate, voting margins are tighter. A test vote on an amendment to the Senate’s budget resolution in March signaled that the 60 votes necessary to avoid a filibuster could be within reach, but Sen. Amy Klobuchar (D-Minn.), who made what could have been the 60th vote on that vaguely worded resolution has not committed either way on the overall issue.
Opponents of the rule hope that the fact that the new Senate measure has three original Democratic co-sponsors and encourages a new regulation to be issued within the Obama administration could woo Klobuchar and potentially other moderate Democrats.
But even if the legislation were to pass, the Obama administration has signaled that the president would veto it. Donnelly said this morning that the 67 votes to overcome a presidential veto may not be too far to stretch.
"When you look at this, when you see that this is an effort not to zing anybody, but an effort to make the lives of the community better, sure, there’s no reason we can’t hit that number," he said.
Many expect the appropriations process will be the most likely avenue for opponents of the rule, though. Sen. John Hoeven (R-N.D.), a member of the Senate Appropriations Committee, is leading efforts on that front.
While the Obama administration called out the provision to block the water rule in its veto threat for the House spending measure currently on the floor, priorities could become more complicated in negotiations over a full appropriations package. If opponents of the water rule were to deliver a strong vote on the Senate measure introduced today, that could offer powerful leverage in later appropriations negotiations.