The EPA rule that would offer protection to millions of miles of streams survived another challenge today, as the Senate voted to defeat a proposal by Republican and farm-and-energy state Democrats that would have forced the agency to completely rewrite the Waters of the United States rule.
All Senate Republicans voted for the bill, with the exception of Sen. Orrin Hatch (R-UT), who did not vote. Four Democrats also voted for the bill — Sens. Heidi Heitkamp (D-ND), Joe Donnelly (D-IN), Joe Manchin (D-WV), and Sen. Claire McCaskill (D-MO).
The bill, sponsored by Sen. John Barrasso (R-WY), would have essentially nullified the Waters of the United States Rule, and created a strict set of guidelines that the agency must follow when re-writing the rule. Barrasso’s bill was touted as a bipartisan compromise, earning a handful of Democrat co-sponsors like Heitkamp, Donnelly, and Manchin, who represent largely agricultural or energy-producing constituents. The bill set specific guidelines for bodies of water that cannot be regulated by the EPA, like isolated ponds, and would also have required the EPA to consult with private industry, as well as local and state government, in rewriting the rule.
On the floor of the Senate, supporters of Barrasso’s bill argued that it would finally clarify what waters fall under the protection of the Clean Water Act. The bill’s opponents, however, argued that it would hinder — not clarify — the agency’s ability to regulate pollution in the nation’s waters.
“Each Congress should want to strengthen the Clean Water Act, not weaken it,” Sen. Ben Cardin (D-MD), said during the Senate’s debate of the bill. “This bill would weaken it.”
Finalized in May, the Waters of the United States Rule, also known as the Clean Water Rule, seeks to clarify the bodies of water that can be regulated under the Clean Water Act. It grants protection to two million miles of streams and 20 million acres of wetlands that were previously not clearly protected under the Clean Water Act — streams and wetlands that supply nearly a third of Americans with their drinking water. According to the EPA, the rule doesn’t add any additional permitting requirements, and preserves all of the exemptions and exclusions that were allowed prior to the rule’s implementation.
A League of Conservation Voters poll found broad support for the rule among voters, with 80 percent approving of the Clean Water Rule. The rule has also garnered support from small business owners, with a 2014 poll from the American Sustainable Business Council showing 80 percent support for federal protections for upstream headwaters similar to those protected under the current rule. Large corporations have also advocated for the rule, with New Belgium Brewing Company, the country’s third largest craft brewery, sending a representative to testify before Congress in support of the Clean Water Rule. Perhaps unsurprisingly, the rule is also broadly supported by outdoor enthusiasts — a National Wildlife Federation poll of Pennsylvania hunters and anglers found that 83 percent supported the Clean Water Rule as national policy.
But opponents have called the rule regulatory overreach, arguing that it is so broad that it covers seasonal puddles and dry creek beds. Farm organizations have also strongly opposed the rule, claiming that it would allow regulators to control irrigation ditches and seasonal ponds and tributaries.
“Farmers’ and ranchers’ ability to remain in production often depends on being able to use the types of farm practices that would be prohibited if EPA denies a permit for them,” the American Farm Bureau said in a press statement after the rule was finalized. “For example, building a fence across a ditch, applying fertilizer or pesticides, or pulling weeds could require a federal permit. The proposed rule, in effect, would give EPA veto authority over a farmer’s or rancher’s ability to operate.”
The rule has endured a slew of legal challenges since the final version was released, including lawsuits from 27 states and multiple business groups. In August, a federal judge issued a temporary injunction on the rule, barring the EPA from implementing it until legal challenges have been resolved.
Today’s vote does not mark the end of congressional challenges to the rule. Senator Jodi Ernst (R-IA), who voted in favor of Barrasso’s bill today, has introduced a measure to nullify the rule under the Congressional Review Act, and a vote on that is expected later this week.