WOTUS critics may have gained 60th Senate vote

By Annie Snider | 03/26/2015 06:59 AM EDT

Opponents of the Obama administration’s controversial water rule may have won their 60th vote.

Opponents of the Obama administration’s controversial water rule may have won their 60th vote.

A Senate budget resolution amendment from Sen. John Barrasso (R-Wyo.) that was seen by many as a referendum on the proposed "Waters of the United States" rule was approved by the upper chamber last night by a vote of 59-40. Only a simple majority was required for passage. Sen. Ted Cruz (R-Texas), who is already on record in opposition to the rule, did not vote.

The last time the Senate voted on the water rule — which would increase the number of streams and wetlands that currently get automatic protection under the Clean Water Act — was in 2013, before the Obama administration had actually proposed a rule. At that time, Barrasso offered an unsuccessful amendment that would have blocked an earlier guidance document developed by the Obama administration and any similar rule proposal (E&ENews PM, May 15, 2013).


Even with the seats that Republicans picked up in the November elections, the vote count in the upper chamber would have been stuck at 59 if the positions from the 2013 vote had held steady.

But over the past year, supporters and opponents of the rule have both undertaken major outreach campaigns across the country, and nose counters weren’t sure how that might have changed things.

Yesterday, the Barrasso amendment drew the support of all of the chamber’s Republicans, Maine independent Angus King and five Democrats — Sens. Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota, Amy Klobuchar of Minnesota, Joe Manchin of West Virginia and Claire McCaskill of Missouri.

Klobuchar is the pickup, having voted against Barrasso’s amendment in 2013. During a hearing of the Senate Agriculture Committee on Tuesday, Klobuchar said she has heard a number of concerns about the proposal from her constituents (E&E Daily, March 25).

But while advocates on both sides see last night’s vote as telling, what exactly it says is up for debate.

While the 2013 amendment would clearly have killed the Obama administration’s efforts around the rule, this amendment simply seeks to ensure that the Clean Water Act "is focused on water quality" and floats areas for limiting federal authority. Barrasso argued on the floor that it would only put in ink what EPA officials have already said the rule will not do. And like the budget resolution itself, the amendment is nonbinding.

"This shows we are serious about legislating on this issue — we strongly believe there are serious problems with how EPA conducted this rulemaking," Don Parrish, senior director of regulatory relations for the American Farm Bureau Federation, said by email. "There are many concerns — not only for farmers, but businesses, states, counties and cities."

Democrats yesterday offered their take on the issue in a "side by side" amendment from Sen. Debbie Stabenow (D-Mich.), ranking member on the Senate Agriculture Committee. That amendment stressed the importance of protecting watersheds and maintaining existing exemptions for agriculture, and passed 99-0.

Veto-proof majority, trust still elusive

But even if opponents do have enough votes in the Senate now to pass stand-alone legislation to block the water rule, President Obama would all but certainly veto it, and they are still far from having enough votes for an override.

Hitching a policy rider to a spending measure or another must-pass bill could be another tack. But there don’t appear to be many such bills on the horizon between now and the summer — the deadline administration officials have set for putting out a final rule. Once a rule is finalized, it becomes much more complicated to block it legislatively.

Instead, opponents of the rule are increasingly pressing the Obama administration to put the proposed rule back out for another round of public comment.

EPA Administrator Gina McCarthy herself has said that the rollout of the proposed rule was rocky and that the agency wasn’t as clear as it should have been about what its efforts would mean for the agricultural sector, local governments and others. She has promised that these communities’ concerns were heard and that the final rule will be much clearer in key areas.

But some lawmakers — including farm state Democrats — have said this "trust us" approach doesn’t offer the necessary comfort.

"We don’t have an EPA rule, we have a proposed rule and a promise that they’re going to fix it, and I think there’s a whole lot of distrust on whether in fact we’re going to see a rule that clarifies and fixes some of the concerns," Heitkamp said during Tuesday’s hearing.

Legislative language that delays the rule’s finalization by adding additional steps to the process could be the approach that would win the most votes. But supporters of the rule say such a move would be the same as killing the rule, since the odds of the Obama administration having the wherewithal to finalize it become a lot slimmer once 2016 election politics hit full swing this summer.