Moderate Democrats Concerned With Waters of U.S. Rule, Seen as Boosting Senate Odds

By Anthony Adragna and Dean Scott

Feb. 3 — A bloc of moderate Senate Democrats is expressing concern that the Environmental Protection Agency and the U.S. Army Corps of Engineers may be “over-reaching” in broadening Clean Water Act jurisdiction over U.S. waterways, suggesting prospects for passing a bill to roll back agency authority may be rosier than previously assumed.

On the eve of a joint House-Senate hearing on the jurisdictional issue, the Democrats' comments suggest that a move to roll back the EPA’s authority—which is expected to easily pass in the Republican-led House—may have a fighting chance in the Senate.

Democratic Sens. Joe Manchin (W.Va.), Tom Carper (Del.), Mark Warner (Va.), Bob Casey (Pa.), Heidi Heitkamp (N.D.), Joe Donnelly (Ind.) and Claire McCaskill (Mo.) or their offices told Bloomberg BNA Feb. 3 they had heard significant concerns about the proposed waters of the U.S. regulation (RIN 2040-AF30), although each stopped short of endorsing any legislative attempts to impede the rule or block it altogether.

“I don’t want to boldly state that all regulations are bad,” McCaskill told Bloomberg BNA. “I try to look at each rule individually, and if they violate Missouri common sense, I’m all for shutting [them] down.”

McCaskill stressed that she had supported a proposal to block a nonbinding Clean Water Act interpretive rule that was ultimately included in the fiscal year 2015 spending bill (Pub. L. No. 113-235). That appropriations rider blocked controversial guidelines on agricultural exemptions for discharge permits under the Clean Water Act.

Advocates for rolling back the jurisdictional rule have said they are targeting a small group of Senate Democrats, hoping to pick off those from farm states or those with moderate voting records on environmental issues.

The Waters Advocacy Coalition, which opposes the EPA waters rule, has “reached out to these Democrats in an effort to help them understand what our concerns are about the waters of the U.S. rulemaking,” Don Parrish, the group's spokesman as well as the senior regulatory relations director for the American Farm Bureau Federation, told Bloomberg BNA Feb. 3. The coalition represents the nation's construction, manufacturing, housing, real estate, mining, agricultural and energy sectors.

Democrats Cite ‘Serious Concerns.'

Many of those moderate Democrats told Bloomberg BNA they had heard “serious concerns” from their states about the rulemaking, especially from agricultural interests, but declined to say whether they would support legislation to roll back the EPA rule for now.

“Farmers in North Dakota have enough uncertainty and issues when it comes to wetlands and water on their farms to be forced to deal with even more uncertainty—which is exactly what the waters of the U.S. rule would do,” Heitkamp said in an e-mail to Bloomberg BNA. “I have serious concerns about the EPA and Army Corps of Engineers’ proposed waters of the U.S. rule and how it would hurt farmers, ranchers, and other industries in North Dakota. To fix this, I recently called on EPA and the Army Corps to withdraw this seriously flawed proposal.”

Warner and Carper both said they had heard “concerns” from agricultural interests in their states but declined to say whether they would back legislation limiting the EPA's jurisdictional expansion under the Clean Water Act.

The comments from Democrats came the day before a joint House-Senate hearing is to be held within the Senate Environment and Public Works and House Transportation and Infrastructure committees to examine the impacts of the proposed rule on the agricultural sector and other industries.

Sen. John Barrasso (R-Wyo.) previously told Bloomberg BNA he will introduce legislation that would block the EPA from proceeding with its proposal to expand its Clean Water Act jurisdiction. A Barrasso spokeswoman told Bloomberg BNA Feb. 3 the senator hasn't introduced his bill but would “work to move it forward as soon as possible”.

Regular Order for Legislation 

Republicans have cited the proposed rulemaking as one of their top targets in the new Congress, and Sen. James Inhofe (R-Okla.), who chairs the Senate Environment Committee, told Bloomberg BNA Feb. 3 the regulation is likely to be the first EPA rule targeted in that chamber this year.

Inhofe said legislation rolling back the regulation would be considered under regular order, meaning he would hold a separate hearing on Barrasso's bill before it would be brought to the Senate floor.

Assuming such legislation gets the support of all 54 Republican senators, backers would need at least six Democrats to secure the 60 votes needed to overcome a filibuster threat and proceed with their proposal to roll back the EPA rule.

Thirty-five House Democrats voted with nearly all House Republicans to block the waters of the U.S. regulation in a September 2014 vote in that chamber, and similar legislation is widely expected to pass it in the months ahead.

Supporters of the EPA's proposal urged members of both parties, but especially Democrats, to reject any legislation that would roll back clean water protections.

“I’d say the same thing to members of Congress of all stripes—science, overwhelming public input, and good government all demand that we restore protections for our feeder streams and other vulnerable waters,” Jon Devine, senior attorney with the Natural Resources Defense Council, told Bloomberg BNA. “The Clean Water Rule would guarantee protections for many of these critical water bodies, and a vote to kill or delay it further is a vote for dirtier water.”

Republicans Want More Information 

Separately Feb. 3, House Science, Space, and Technology Committee Chairman Lamar Smith (R-Texas) asked EPA Administrator Gina McCarthy for additional information about the EPA's creation of detailed maps of U.S. waters and wetlands, which he said suggested they could be used to expand EPA regulatory overreach.

“Rather than providing full transparency about the maps, the motivations behind their creation and the reason for them being kept from public view, the agency’s response only raises additional questions,” Smith wrote. “Additional documents appear to provide further evidence that EPA created the maps to aid in its efforts to expand its regulatory reach over private property owners across the nation.”

The EPA has said the maps weren't created for regulatory purposes and aren't a part of the proposed regulation.

With assistance from Amena H. Saiyid in Washington at

To contact the reporter on this story: Anthony Adragna and Dean Scott in Washington at and

To contact the editor responsible for this story: Larry Pearl at