FarmPolicy

August 20, 2018

Waters of the U.S. Rule: Focus of Senate Debate, and Court Ruling

Categories: Regulations

A news release yesterday from Sen. John Hoeven (R., N.D.) indicated that, “[Sen. Hoeven] today spoke on the Senate floor ahead of a vote on his legislation to defund the Environmental Protection Agency’s (EPA) Waters of the U.S. rule, which would prevent its implementation. The senator stressed the rule’s severe impacts and excessive scope, as well as the agency’s lack of legal authority to issue such a broad regulation. The measure, which was offered as an amendment to the Energy and Water Development Appropriations bill, was supported by strong majority of the Senate, though it did not achieve the 60 votes required for passage; the final vote was 56 to 42.

“‘The EPA’s attempt to expand its reach through the Waters of the U.S. rule is the number one regulatory threat and a real problem for our farmers and ranchers,’ Hoeven said. ‘Further, there is a fundamental principle about how our government works at stake. The EPA has sought through administrative fiat to seize authority that legally belongs to Congress, not an executive agency. While I am disappointed that the vote failed, I will continue my work to stop this burdensome regulation through the appropriations process.'”

Also with respect to this amendment, Sen. Roy Blunt (R., Mo.) stated yesterday during the floor debate that, “Navigable waters have seemed to be a Federal responsibility since the 1840s in law, in bills that have passed the Congress. So in the early 1970s, the Clean Water Act was passed, and the EPA was formed. The Clean Water Act said the EPA will have jurisdiction over navigable waters. But with this outrageous waters of the United States rule, the EPA wants to now define ‘navigable waters’ as basically all the water in the country.

They want to say it is any water that can run into any water that can run into any water. I don’t know how many iterations of that there would be that can run into any water that eventually runs into navigable water. There is a case before the Supreme Court right now where the EPA is challenging a company in Minnesota based on navigable waters. The location they are challenging is 120 miles away, by no argument, from the nearest thing that anybody would truly consider a navigable water.”

Sen. Blunt added that, “In my State, anything that would meet the EPA definition of what could be the definition of their new sense of waters of the United States covers 99.7 percent of the State.”

On the other hand, Sen. Ben Cardin (D., Md.) provided this background on the issue yesterday: “It was for all those reasons that we passed the 1972 Clean Water Act. We understood the enforcement of the waters that were regulated under the 1972 Clean Water Act. It was based upon best science.

Science told us what we needed to do in order to have clean water—clean water for our environment, clean water for safe drinking water—and it was well understood until a Supreme Court decision. That decision in 2006, known as the Rapanos decision, was a 5-to-4 decision of the Supreme Court, which remanded the case, but it was a 4-to-4 decision on the merits of the case. Since that time, there has been uncertainty as to what bodies of water can be regulated under the Clean Water Act. So this was a situation caused by the ambiguity of the Supreme Court case. It is interesting that the decision on the merits was 4-to-4, as we are now debating whether we are going to have a full Supreme Court in order to make decisions that affect the clarity of law in this country.

“The Rapanos decision sent back to the lower courts a decision on how to decide this. Since that time, there has been uncertainty as to what bodies are legally regulated under the 1972 Clean Water Act. Remember, this was 2006. The easiest way to resolve this was for Congress to pass a law clarifying the Clean Water Act, but Congress has chosen not to do that. So the Obama administration has done what it should do, using its power to promulgate a regulation that would provide clarity as to which bodies of water are regulated. Guess what. They have done that in a way that is consistent with how the law was enforced prior to the Rapanos decision—without much complaint before the Rapanos decision. It basically goes back to best science and tells us logically what needs to be regulated. That is what this rule would do: Protect our clean water.”

And Sen. Richard Durbin (D, Il.) noted that, “Attempts to roll back the clean water rule will not only return us to a patchwork of water protections that make it difficult for businesses, farmers, and others to know whether water ways are covered by the law. It will also risk one of our greatest commodities that supports agriculture, recreation, tourism, and energy production.”

Separately on the Waters of the U.S. Rule, a news release yesterday from Sen. Heidi Heitkamp (D., N.D.) stated that, “[Sen. Heitkamp] pressed witnesses at a Senate hearing about the need for her bipartisan bill to do away with the Environmental Protection Agency’s (EPA) overbroad Waters of the U.S. rule.

“During a U.S. Senate hearing on the role of government regulators, Heitkamp underscored the need for Congressional legislative action to provide predictability to farmers and ranchers, like her bipartisan bill to fix the Waters of the U.S. rule. Heitkamp reinforced that to address the challenges with the Waters of the U.S. rule, Congress needs to legislate so that federal agencies have the direction they need to develop better regulations.

“Last year, Heitkamp helped introduce a strong and comprehensive bipartisan bill – which she worked with Republican and Democratic senators on since early 2014. Her bill offers a compromise fix by doing away with the harmful Waters of the U.S. rule and sending it back to the EPA for the agency to redo so it takes into account the concerns of farmers and ranchers.”

The judicial branch was also active on the Waters of the U.S. Rule yesterday.

Politico’s Morning Agriculture reported today that, “A federal appeals court stood by its decision that challenges to the Obama administration’s controversial water rule belong with it, rather than having to first go through district courts. The Cincinnati-based 6th Circuit Court of Appeals on Thursday denied petitions from states, industry groups and property rights activists opposing the Waters of the U.S. rule that asked that the court to rehear arguments on the question. Those groups argued that under the Clean Water Act, challenges to the rule must begin in district court. In February, a three-judge panel issued a splintered 2-1 opinion ruling that the challenges belong with it, although the concurring judge said he disagreed with the decision but felt bound by precedent. Opponents of the rule, also known as the Clean Water Rule, hoped that could open the door for a rehearing before the full court.”

The court’s decision from yesterday can be read here.

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