By Patrick Crow
The Senate has voted to overturn the Obama Administration’s controversial “Waters of the U.S.” rule, but the final decision will come in federal court.
The Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers issued the regulation to clarify their jurisdictions under the Clean Water Act (CWA) following Supreme Court decisions in 2001 and 2006 (see WW August 2015 column).
Agriculture groups said the rule expands federal jurisdiction to include upstream waters and intermittent and ephemeral streams such as the kind farmers use for drainage and irrigation. Water associations have expressed concerns about the rule’s impact on drinking water infrastructure.
Senate Republicans threw two punches against the water regulation in early November.
The first was a bill - S.1140, by Sen. John Barrasso (R-Wyo.) - which would have required EPA to rewrite the rule under congressionally mandated guidelines.
The Senate initially voted on whether to block a filibuster but in a 57-41 vote fell three votes shy of the 60 votes needed. S.1140 was promptly withdrawn.
Next, Senate Republicans advanced Joint Resolution 22 by Sen. Joni Ernst (R-Iowa). It was filed under the Congressional Review Act, which allows legislators to directly nullify regulations. A joint resolution is not subject to a Senate filibuster.
Sen. Ernst noted that the key issue was not about the protection of water supplies. “The heart of this debate is about how much authority the federal government and unelected bureaucrats have to regulate what is done on private land,” she said.
The joint resolution, which passed 53-44, actually went further than Barrasso’s bill because it would prevent EPA from writing “a new rule that is substantially the same” as the one that was blocked.
Although the House likely will endorse the joint resolution (it voted 261-155 against the water regulation earlier this year), President Obama is certain to veto it.
Congress clearly lacks the two-thirds majority in both chambers to override a veto. Assuming all Republicans support the joint resolution, they would need 13 Democratic votes in the Senate and 45 in the House.
That leaves the federal judiciary as the only avenue to repeal the regulation.
On August 27, the North Dakota U.S. District Court issued a preliminary injunction, which halted implementation of the rule for 13 states. On October 9, the Sixth U.S. Circuit Court of Appeals in Cincinnati halted implementation nationwide in response to a petition brought by 18 states. The court said, “We conclude that petitioners have demonstrated a substantial possibility of success on the merits of their claims.”
Initially, the Sixth Circuit will have to determine whether it has the authority to hear the issue or if district courts should first hear the lawsuits.
Environmental groups stressed that the injunction was only part of the normal litigation process, and the courts have yet to rule on the merits of the rulemaking.
During the Senate floor debate, Sen. James Inhofe (R-Okla.) argued that congressional legislation was needed despite the lawsuits. “The courts could act, but it will take a long, long time,” he said.
Sen. Johnny Isakson (R-Ga.) agreed. “It’s a rule that’s going to be litigated for the next 30 to 40 years.”
About the Author: Patrick Crow covered the U.S. Congress and federal agencies for 21 years as a reporter for industry magazines. He has reported on water issues for the past 15 years. Crow is now an Austin, Texas-based freelance writer.
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