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Senate Votes to Block Controversial Clean Water Rule

One day after Republicans in the U.S. Senate failed to muster enough votes to force the Obama administration to rewrite the controversial Clean Water Rule (CWR), lawmakers on Wednesday passed a joint resolution to block the rule from taking effect.

SJ Res. 22 passed Wednesday on a 53-44 vote along mostly partisan lines. Three Democrats -- Sens. Joe Manchin (D-WV), Joe Donnelly (D-IN) and Heidi Heitkamp (D-ND) -- joined 50 Republicans in supporting the resolution, while Sen. Susan Collins (R-ME) was among those voting against it.

Although the resolution passed, it is unlikely to go anywhere without enough support in the Senate to override an expected presidential veto.

At issue is how the U.S. Army Corps of Engineers (USACE) and the Environmental Protection Agency (EPA) redefined what constitutes Waters of the United States (WOTUS), clarifying what water features deserve protection under the Clean Water Act (CWA). The proposed regulation, enshrined in the CWR, was rolled out by EPA and USACE last May (see Shale DailyMay 27).

The oil and gas industry is opposed to the regulation because they believe it could stifle development, while Republicans deride it as an overreach by the federal government.

"This confusing WOTUS rule threatens the livelihoods of rural communities and middle class Americans, and impedes small businesses and manufacturing," Sen. Joni Ernst (R-IA), the resolution's sponsor, said Wednesday. "How can these industries flourish, when under this rule they will be faced with excessive permitting requirements that will delay future projects and conservation efforts?"

Ernst also touched on the controversy surrounding USACE's alleged limited role in crafting the WOTUS rule. Last July, U.S. Sen. James Inhofe (R-OK), chairman of the Senate Environment and Public Works Committee, asked the corps to confirm its limited role vis-a-vis the EPA (see Shale DailyJuly 27).

"The USACE's memos show that the science was blatantly ignored by the EPA in favor of politics," Ernst said. "And this in spite of the fact 11 Democrats sent a letter to the EPA yesterday stating their concern over serious issues with this rule. Yet this administration continues to unilaterally enforce its harmful agenda on the American people."

Sen. Benjamin Cardin (D-MD) pushed back in an unsuccessful attempt to defeat the resolution.

"Every poll has shown that the overwhelming majority of Americans support what EPA is doing in protecting our water supply," Cardin said. "They're for this rule. They're for a common sense, science-based way to protect their drinking water [and] to make sure that their rivers are clean.

"This rule doesn't regulate new activities in agriculture. It doesn't require anything different than what has historically been the role of the CWA, [or] deal with isolated ponds or ditches. I would urge my colleagues to look at what's in this regulation, not the claims that have been made."

Wednesday's actions followed Tuesday's defeat of a bill sponsored by Sen. John Barrasso (R-WY). S 1140, also known as the Federal Water Quality Protection Act, would have required the Secretary of the Army and the administrator of the EPA to revise the WOTUS definition. The bill required a three-fifths vote to proceed, but it fell short, 57-41.

Specifically, Barrasso's bill, among other things, would limit the authority of the Department of the Army or the EPA in requiring a discharge permit. The agencies would also face enforcement limits for unpermitted discharges. The scope of water features subject to state jurisdiction would have also been limited.

Last October, the Justice Department began asking federal district courts across the nation to halt proceedings against the CWR (see Shale DailyOct. 14). The move was designed to give the U.S. Circuit Court of Appeals for the Sixth District in Cincinnati more time to decide whether it has jurisdiction over a multitude of legal challenges to the rule. That court has so far blocked implementation of the CWR nationwide (see Shale Daily, Oct. 9).

Thirteen states, led by North Dakota, asked for and received a preliminary injunction against the rule last August, just before the rule was to take effect (see Shale Daily, Aug. 28; Aug. 11).

"The fact is the implementation of this rule has already been halted by the federal courts," Sen. Dean Heller (R-NV) said Wednesday before the vote on SJ Res. 22. "I strongly believe that at the end of the day, the courts will decide to overturn this onerous regulation."

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