On November 3, 2015, the United States Senate voted on legislation meant to repeal the federal regulation re-defining “Waters of the United States” (“WOTUS”). WOTUS sets EPA’s jurisdiction, and thereby how far the EPA can reach to regulate various waterways. The regulation increases federal jurisdiction over water within the United States, which many believe will increase federal oversight over certain water sources, especially that used for agriculture. The primary concern is that water use that was once exempt, will now fall under federal jurisdiction requiring new permitting and regulatory procedure, adding additional costs to use of this “jurisdictional” water. Through a bipartisan vote, with 57 senators voting for, and 41 against, the legislation failed to meet the 60 vote requirement, effectively scrapping the Bill.
On November 6, 2015, in a follow-up attempt to repeal with “WOTUS” Rule, Sen. Joni Ernst from Iowa sponsored a joint resolution of disapproval of the Rule. With the joint resolution passing in the Senate, Sen. Ernst stated, “Today’s passage to scrap the expanded WOTUS rule is a major win for our hardworking farmers, ranchers, manufacturers, and small businesses who are continuously ignored by the EPA. It is abundantly clear that the WOTUS rule is ill-conceived and breeds uncertainty, confusion, and more red tape that threatens the livelihoods of many in Iowa and across the country.” The House will now consider the joint resolution, however, President Obama has expressed his intent to veto any law that seeks to repeal or alter the current WOTUS rule.
In the meantime, legal battles over WOTUS continue, as now more than 30 states have filed lawsuits against the EPA seeking to stay the Rule’s implementation. The effect of WOTUS remains stayed for a number of states until the EPA works through the legal challenges.
Update:
Since the November 6, 2015 vote by the United States Senate in support of a Joint Resolution (S.J. Res. 22) to set aside the EPA’s new rule under the CWA concerning “Waters of the United States” on January 6, 2016, the United States House of Representatives equally voted in support of the Joint Resolution. This vote effectively sent the matter to the President, and as predicted, on January 19, 2016, President Obama vetoed the Joint Resolution, his ninth veto since taking office.
In the President’s press release regarding his veto of the Joint Resolution, he stated that, “The rule, which is a product of extensive public involvement and years of work, is critical to our efforts to protect the Nation’s waters and keep them clean, is responsive to calls for rulemaking from the Congress, industry, and community stakeholders, and is consistent with decisions of the United States Supreme Court.” President Obama went on to state that “Pollution from upstream sources ends up in the rivers, lakes, reservoirs, and coastal waters near which most Americans live and on which they depend for their drinking water, recreation, and economic development.”
Senator Joni Ernst, a Republican from Iowa who sponsored the Resolution, stated in response that “This rule is not about clean water. Rather, it is about how much authority the federal government and unelected bureaucrats should have to regulate what is done on private land.”
The President’s veto, and the Rule’s implementation comes as a large regulatory hurdle many farmers and ranchers will have to navigate, with the potential for additional permitting and fees to operate in and around private water sources. While the Rule does exempt irrigation waters under certain circumstances, many questions remain as to the reach the Rule will have. While the Rule continues to be implemented, it remains stayed pending further Court action.
