Senate panel votes to kill WOTUS rule

WASHINGTON, June 10, 2015 – Senate Republicans advanced a bill to kill the Obama administration’s Clean Water Act rule and set sweeping restrictions on what streams and wetlands the federal government can regulate.

The Senate Environment and Public Works Committee split 11-9 along party lines in approving the bill (S 1140), which would require the administration to write a new rule in consultation with state and local governments. The bill would set limits on what wetlands could be regulated and alter the way tributaries are identified.

But a floor vote will put some other Democrats on the spot, and the debate allows Republicans to build the case for blocking implementation of the rule at least temporarily through the appropriations process.

The bill “sets up the right process and the right principles to make sure that the agencies can protect water quality without taking control over huge swaths of private property,” said committee Chairman Jim Inhofe, R-Okla.

But the committee’s ranking Democrat, Barbara Boxer of California, said the legislation “rips the heart out of the of the rule and, frankly, the Clean Water Act.”

House appropriators are separately moving fiscal 2016 spending bills that would bar the administration from enforcing the rule starting Oct. 1. A House Appropriations subcommittee included such a provision in the Interior-Environment bill the panel approved Wednesday morning.

The House earlier passed the fiscal 2016 Energy and Water spending bill with a similar policy rider.

The rule, released May 27, defines what ditches, wetlands, ponds and other features can be regulated under the Clean Water Act as “waters of the United States” (WOTUS).

The rule's final version tightened some definitions and clarified exemptions for erosional features, tile drainage and other issues. But the administration included new provisions that critics say will expand the government’s authority.

They say, for example, that the rule would essentially provide the EPA and Army Corps of Engineers regulatory authority over the prairie potholes in the Upper Midwest and wetlands in other areas of the country, including playa lakes on the central and southern Plains. EPA officials dispute that reading, saying that they will decide what wetlands are protected on a case-by-case basis.

There’s also concern that federal officials could rely on aerial photography and a remote sensing method known as LIDAR rather than actual field visits to make determinations about what qualifies as a tributary.

“The rule is actually worse than the proposed rule,” said Sen. John Barrasso, R-Wyo. Administration officials have “added new provisions that greatly expanded their authority.”

The Senate bill would stop the EPA and Corps from using high water marks as a way to determine whether something is a tributary and would instead require the agencies to use a flow test, relying in part on the U.S. Geological Survey’s hydrology maps. Field visits also would be required.

Committee Republicans voted down a series of Democratic amendments that would have essentially allowed the administration to ignore the bill’s requirements if officials decided they would harm water quality or increase costs.

Separately Wednesday, the Senate Judiciary Committee held a hearing on the federal regulatory process that focused in part on what Chairman Chuck Grassley, R-Iowa., said was the administration’s heavy-handed approach in developing the WOTUS rule.

“Legitimate concerns over how the rule would affect agriculture, in particular, were subtly twisted and then dismissed as ‘silly’ and ‘ludicrous’ and ‘myths,’” said Ellen Steen, general counsel of the American Farm Bureau Federation. “Public statements from the agency’s highest officials made it clear that the agency was not genuinely open to considering objections to the rule.”