Starting Friday, there is no one in charge of the Environmental Protection Agency’s Office of Water.
As E&E News reports, the office has actually gone without a confirmed head since February 2011. In the interim, Assistant Administrator Nancy Stoner has served as acting head. But on Friday, she hit the legal limit on how long an unconfirmed leader can hold an office. The Obama Administration’s nominee to head the office is Ken Kopocis — a former Capitol Hill staffer personally respected by both sides — and has been in limbo for 1,148 days and counting.
A Senate rule change in November now allows most of the executive branch’s agency and judicial nominees to face a simple majority vote rather than the filibuster-enforced 60-vote supermajority. However, the Senate remains a complex body where any legislator has enormous capacity to slow things down, and Senate Democrats claim Republicans have relied on a number of delaying tactics since November to keep Kopocis from receiving a vote.
“We don’t seem to be able to move him quickly because the Republicans are being very difficult,” Sen. Barbara Boxer (D-CA), the chairwoman of the Environment and Public Works Committee (EPW), told E&E News. The Republican countercharge is that a number of Democrats are skittish about voting for Kopocis, meaning he may not have the numbers for a simple majority confirmation.
At issue is another rule change issued by the Environmental Protection Agency’s (EPA) Office of Water back in March. Prior to 2001, EPA’s water office held wide power to regulate virtually all bodies of water under the Clean Water Act. But two Supreme Court decisions in 2001 and 2006 threw the definitions of the Act’s language into doubt. That left isolated bodies of water like lakes, and other streams that only run intermittently or seasonally, in jurisdictional limbo. The uncertainty came with perverse results, as a lot of water pollution and a number of oil spills on land over the years went unpunished, because no one knew if the water bodies in question fell under the EPA water office’s authority.
During his time on Capitol Hill, Kopocis was instrumental in a number of unsuccessful legislative attempts to modify the Clean Water Act’s language to restore EPA’s authority. That earned him the political opposition of the GOP.
EPA’s March rule change restored some of the EPA water office’s authority by clarifying which bodies of water it sees as falling under the Clean Water Act. The change does not return to the pre-2001 status quo, but it would re-expand EPA authority over most intermittent streams and wetlands near waterways, while evaluating isolated bodies of water on a case-by-case basis. Senate Republicans promptly circulated a letter calling the rule change an “overreach,” and saying a vote for Kopocis would effectively be a de facto vote in favor of the change.
Many agricultural and rural groups also oppose the rule change, and supporters and critics of the move are split on just how much the change will alter life for property owners, such as how they can obtain permits.
About 117 million people in the lower 48 states get at least some of their drinking water from public systems that rely on intermittent or seasonal streams.
Eight Senate Democrats joined the Republicans in an earlier effort to block the change. Whether those eight would vote for Kopocis is unclear, but put them together with a unified Republican front and Kopocis does not have the votes to win a simple majority. According to E&E News, “even with GOP delaying tactics, there has been more than enough time to get the nomination to the floor” since November, assuming doing so was a big priority.
Sen. Ben Cardin (D-MD), the chairman of the EPW Subcommittee on Water and Wildlife, isn’t buying that argument, however. “I think the votes are there,” he told E&E News. “It’s the Republicans who are obstructing, not Democrats.”