Bill Revoking EPA Water Rule Fails in Senate

November 4, 2015

pic-energyOn Nov. 3, the Senate considered a procedural vote on Sen. John Barrasso’s (R-Wyo.), Federal Water Quality Protection Act (S. 1140), meant to halt the “Waters of the U.S.” (WOTUS) rule which the Environmental Protection Agency (EPA) finalized in August. The Senate did not vote to advance S.1140 to a final vote. The legislation would require the EPA to revise the final WOTUS rule and expand the role of state governments in the creation of the new rule.

Despite having three Democratic cosponsors when introduced into the Senate, Sens. Joe Manchin (D-W.Va.), Joe Donnelly (D-Ind.) and Heidi Heitkamp (D-N.D.), S. 1140 was voted out of the Environment and Public Works Committee earlier this year 11-9 purely along party lines. The bill did not receive the necessary 60 votes to invoke cloture and move the bill forward; it failed by a vote of 57-41. Four Senate Democrats, Sens. Joe Manchin (D-W.Va.), Joe Donnelly (D-Ind.), Heidi Heitkamp (D-N.D.) and Claire McCaskill (D-Mo.) joined the unanimous Republican vote in favor of cloture, while the remaining 39 Democrats and two Independents voted against it.

The WOTUS rule has been highly controversial since the draft version was released in 2014. The EPA contends that the rule clarifies the murky definition of “waters of the U.S.” which is a key statutory term in the Clean Water Act (CWA), and effectively sets the outer boundary of what water bodies in the U.S. are subject to the CWA jurisdiction. Despite EPA’s intention to clarify the definition, many in the business community are concerned that the new definition actually drastically expands what bodies of water will be subject to CWA jurisdiction without contributing  any additional clarity.

On Oct. 9, the U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay of enforcement against the final WOTUS rule. This will effectively stop any enforcement of the new rule’s provisions until the underlying legal challenges are resolved, which could take years. S. 1140 would direct EPA to rewrite the rules and would effectively conclude the pending litigation on the matter for the short term. With the measure unable to survive a procedural vote, it is likely that any permanent relief from the regulations as they currently exist will need to come from the court system.

NSBA is concerned that the final WOTUS rule as drafted, does not clarify the reach of the CWA and instead incorporates inconsistency into the regulatory system. Small businesses in this country face any regulatory costs of over $10,000 per employee, greater than those of larger firms. Creating consistency and clarity in the regulatory system eases that burden on small businesses and makes it easier for them to continue to grow and create jobs across the nation.