Senate Votes on Jurisdiction Measures Yield Differing Reactions to Clean Water Rule

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By Amena H. Saiyid

April 16 — Senate support for two amendments seeking to corral an Obama administration rulemaking on Clean Water Act jurisdiction is being viewed by opponents of the effort as a roadmap to rescind the rule. But supporters see the provisions as an attempt to better shape the rule and ensure strong protections for clean water.

An amendment by Sen. Debbie Stabenow (D-Mich.), passed 99-0, would ensure the Environmental Protection Agency and the U.S. Army Corps of Engineers use scientific standards in writing the final clean water rule and retain exemptions for certain agricultural, forestry and ranching practices. Sen. John Barrasso (R-Wyo.) offered an amendment, which passed 59-40, that would limit EPA jurisdiction over certain waters by explicitly directing that groundwater, irrigation systems, stormwater systems, wastewater systems, isolated ponds, ditches and puddles be excluded.

Both amendments instruct appropriators to include in any funding bill a directive for the agencies to “establish bright lines for Federal jurisdiction, and to create clear and unambiguous exemptions” for waters deemed outside the scope of the waters of the U.S. rule (RIN 2040-AF30).

The votes in support of the amendments are largely symbolic as they attach to the non-binding Senate budget resolution, but they still can be construed as a measure of how lawmakers plan to respond once the rule is issued in final form, policy analysts and legislative aides told Bloomberg BNA.

“To the extent that these amendments sent any substantive messages, I would say that they indicate widespread support for clean water protections that protect drinking water supplies and treasured waters, preserve existing exemptions, and encourage green infrastructure and other sustainable water management systems, while also providing increased clarity that rules out artificial, erosional, and certain other water features that do not contribute to chemical, physical, and biological integrity of downstream waters,” Jan Goldman-Carter, senior manager of the National Wildlife Federation Wetlands and Water Resources, told Bloomberg BNA in an email.

At the heart of the issue is a rulemaking by the EPA and the corps to clarify the reach of the Clean Water Act after several Supreme Court decisions created confusion over what types of waters are actually covered by the law. The proposed rule, published in April 2014, generated significant controversy as groups representing agriculture, developers, most but not all states and others said it amounted to an expansion of the Clean Water Act. Environmental organizations and conservation groups said it would provide needed protections for isolated bodies of water and drinking water supplies.

The agencies sent the draft final rule to the White House Office of Management and Budget April 6 for interagency review. EPA Administrator Gina McCarthy and Jo-Ellen Darcy, assistant secretary of the Army for Civil Works, said the rule would establish “bright lines” of jurisdiction, narrow definition of tributaries and clarify that ditches exclude irrigation and roadside ditches. The final rule also would maintain existing Clean Water Act permitting exemptions for agriculture and ranching activities.

The final rule is expected later this month or early next month, Ryan Seiger, Democratic counsel for the House Transportation and Infrastructure Subcommittee on Water Resources and Environment, said April 16.

Existing Exemptions Should Be Maintained 

Both amendments called upon the agencies to acknowledge the need to maintain existing agriculture, forestry and ranching exemptions in the final clean water rule. The Stabenow amendment provided general guidelines, while the Barrasso amendment directed the agencies to exclude from jurisdiction specific water types—such as groundwater, stormwater, puddles and ditches—and water management systems. Barrasso warned that coverage of these waters would amount to federal overreach.

Stabenow told Bloomberg BNA in an email that her amendment was intended to provide certainty for the agricultural and forestry communities.

“America's farmers and ranchers must have certainty that the Clean Water Act maintains its long-standing exemptions for farming, ranching and forestry activities,” she said. “That point was recently underscored when my colleagues voted unanimously to pass my amendment which recognized both the need to preserve these very important exemptions—which have existed for decades—while also supporting the important role the Clean Water Act plays in maintaining the health and integrity of our nation’s waters.”

Don Parrish, senior regulatory relations director for the American Farm Bureau Federation, however, termed the Stabenow amendment as “meaningless” and an attempt by supporters of the administration's rulemaking to marginalize the real concerns of farmers, ranchers, foresters, miners and the construction business.

Farmers are concerned that the rule will expand federal jurisdiction from the current scope that includes permanent streams and streams that flow for three months continuously to any stream or ditch regardless of flow volume or frequency, he has said.

Reinforcing the Rule

Navis Bermudez, deputy legislative director for the Southern Environmental Law Center, characterized Stabenow's amendment as good news for the clean water rule. She said the rule “follows the vast available science, preserves existing exemptions for agriculture, and protects drinking water supplies, just as her amendment does.”

In contrast, Kristina Baum, spokeswoman for the Republican-controlled Senate Environment and Public Works Committee, said the votes on the Barrasso and Stabenow amendments “send a resounding message that the Senate is emphatic about halting EPA overreach.”

She reiterated the committee's intention to halt the current rulemaking process that she said would result in diminished economic activity owing to curbs on farmers, ranchers and other industries.

“Between the Barrasso amendment and the Stabenow amendment,” Barrasso spokeswoman Emily Schillinger said, “an overwhelming majority of Senators have made it clear that the EPA has gone too far.”

Lack of Trust 

Both McCarthy and Ken Kopocis, the head of the EPA Office of Water, have said the agency has addressed the concerns raised about the rule and that the final version will be significantly different from the proposal.

The Republicans don't trust the administration to address the concerns and remain unpersuaded by their reassurances, according to Susan Bodine, chief counsel for the Environment and Public Works Committee. After delivering a speech on congressional prospects at the mid-year meeting of the Association of Clean Water Administrators, Bodine told Bloomberg BNA that the changes that the agencies need to make to the rule rise to the level of notice and comment.

“Administrator McCarthy and Assistant Secretary Darcy said they will make changes but will not repropose the rule. We don't see how they address the concerns without reproposing the rule. The fact that they aren't prepared to repropose the rule tells us they won't address the concerns,” Bodine said. “That is why the Senate Republicans are in the process of writing legislation to send the rulemaking back to the agencies to restart the process.”

Republican aides told Bloomberg BNA that they used the vote on the Barrasso amendment not only to instruct the agencies on how the final rule should be crafted, but also to see whether Democrats would support legislation that Barrasso and other members of the Senate Environment and Public Works Committee, including Chairman James Inhofe (R-Okla.), plan to introduce to redo the jurisdictional rule.

Schillinger told Bloomberg BNA that “it is fair” to characterize the vote on the Barrasso amendment as a test to gauge Senate support for upcoming legislation on the rulemaking efforts. “We believe we have the support to pass legislation that will rescind this deeply flawed proposed rule,” she said.

Five Democrats—Sens. Joe Donnelly (Ind.), Heidi Heitkamp (N.D.), Amy Klobuchar (Minn.), Joe Manchin (W.Va.) and Claire McCaskill (Mo.)—joined 53 Republicans and independent Sen. Angus King (Maine) in voting for the Barrasso amendment.

‘Hit the Reset Button.'

“This vote is a good indicator that there is support to hit the reset button on this regulation,” Parrish said.

However, Jon Devine, senior water attorney for the Natural Resources Defense Council, dismissed the Barrasso amendment as a “gimmick,” and “a recipe for more not less confusion about which waters should be protected.”

“When everyone is clamoring for clarity and science-based decisions, the amendment paints a target on a bunch of factors and water features without defining them and without identifying scientific evidence about which of them are unimportant for water quality,” Devine said.

Barrasso's amendment not only sought to exclude from Clean Water Act jurisdiction specific types of waters and conveyances but also to focus jurisdiction over waters and wetlands based on their water quality rather than migration of birds, mammals and insects.

2001 Supreme Court Ruling

In doing so, Barassso's amendment addressed the key holding of the 2001 U.S. Supreme Court ruling in Solid Waste Agency of N. Cook Cnty. (SWANCC) v. U.S.( 531 U.S. 159, 51 ERC 1833 (2001) .

In that case, the Supreme Court said the EPA and the corps couldn't consider the presence of migratory birds in geographically isolated, intrastate wetlands as a reason to extend Clean Water Act protections.

However, the peer-reviewed EPA scientific study upon which the agencies are relying to establish jurisdiction in the final rule said wetlands, prairie potholes, playa lakes and other types of isolated water bodies located outside of riparian areas and floodplains provide physical, chemical and biological functions that could affect the integrity of downstream navigable waters.

Steven Miano, attorney and shareholder in the Philadelphia-based law firm of Hangley Aronchick Segal Pudlin & Schiller, told Bloomberg BNA that the EPA's scientific study does appear to say that the SWANCC holding on jurisdiction has no basis in science. However, Miano agreed that it is not certain whether the final rule will ignore the 2001 ruling.

Nonetheless, he said the Republicans are taking no chances. The Barrasso amendment is an attempt to ensure that “the final rule doesn't ignore the Supreme Court's 2001 ruling,” said Miano, who also is chairman of the American Bar Association Section of Environment, Energy and Resources.

Laura Atcheson, majority counsel to the Environment and Public Works Committee, said Republicans are getting ready to introduce a bill soon that is being crafted with the assistance of some Democratic senators. Unlike the Regulatory Integrity Protection Act (H.R. 1732), which the House Transportation and Infrastructure Committee approved April 15, the upcoming Senate bill would give instructions to the agencies on how to rewrite the bill.

“We don't want to send it back to them and have them do the same thing again,” Atcheson said.

To contact the reporter on this story: Amena H. Saiyid in Washington at asaiyid@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

Sen. John Barrasso (R-Wyo.) amendment on jurisdiction is available at http://op.bna.com/env.nsf/r?Open=sbra-9uvvhn.

Sen. Debbie Stabenow (D-Mich. ) amendment on jurisdiction is available at http://op.bna.com/env.nsf/r?Open=asad-9vfltq.