U.S. Senate fails to override Obama veto of resolution nullifying EPA ‘Waters’ rule

By Jessica Karmasek | Jan 21, 2016

WASHINGTON -- Both of West Virginia’s U.S. senators on Thursday voted to override President Barack Obama’s veto of legislation that would have effectively killed the Environmental Protection Agency’s new “Waters of the United States” rule.

Sens. Shelley Moore Capito and Joe Manchin were among the 52 who voted to override the veto, falling short of the required 67 votes.

Obama vetoed a resolution of disapproval to nullify the rule, which extends the federal agency’s authority to all bodies of water, no matter the size or frequency, Tuesday.

In a message to the Senate, Obama said the rule is a product of “extensive public involvement” and years of work, and is “critical” to the administration’s efforts to protect the nation’s waters. He said the rule also is consistent with U.S. Supreme Court decisions.

“We must protect the waters that are vital for the health of our communities and the success of our businesses, agriculture and energy development,” he wrote. “As I have noted before, too many of our waters have been left vulnerable. 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. Clarifying the scope of the Clean Water Act helps to protect these resources and safeguard public health.

“Because this resolution seeks to block the progress represented by this rule and deny businesses and communities the regulatory certainty and clarity needed to invest in projects that rely on clean water, I cannot support it.”

Capito, a Republican, expressed her disappointment in Obama’s veto and the Senate’s failure to override it.

“Despite serious questions about the WOTUS rule’s legality and ongoing cases in the courts, the Obama administration continues to expand its unprecedented overreach by vetoing our resolution,” she said in a statement. “WOTUS is the wrong approach to protecting our water resources, and West Virginia’s farmers, small businesses and energy producers cannot continue to bear the burden of this administration’s far-reaching and costly regulations.”

Manchin, a Democrat, agreed, noting that the EPA’s regulatory expansion could lead to regulation of a “huge number” of economic activities in West Virginia -- including highway and road constructions, pipeline projects, transmission line projects, farming, flood control, housing constructions and public works projects.

“Many in our state and country are already struggling to make ends meet. This new financial and regulatory burden will set them up for failure in an already unstable economic climate, which in large part is caused by harmful regulations the EPA and this administration have established,” he said in a statement.

“We all want drink clean water and breathe clean air, but we can achieve this without regulating hard-working West Virginians and Americans out of business, and this rule represents broad overreach that has the force of law without congressional approval.

“The bottom line is that no federal agency should go around Congress to control what has not been legislated, especially when its actions will harm economic growth. It is time to send this rule to the dust bin and EPA back to the drawing board.”

The U.S. House passed the resolution invaliding the rule last week. The measure already passed the Senate.

After being published in the Federal Register June 29, the EPA and the U.S. Army Corps of Engineers began enforcement Aug. 28. However, a federal appellate court in October issued a decision that stops the EPA and Corps from enforcing the rule.

Two out of three U.S. Court of Appeals for the Sixth Circuit judges sided with the petitioners -- Ohio, Michigan, Tennessee, Oklahoma, Texas, Louisiana, Mississippi, Georgia, West Virginia, Alabama, Florida, Indiana, Kansas, Kentucky, South Carolina, Utah, Wisconsin and the North Carolina Department of Environment and Natural Resources -- saying they demonstrated “a substantial possibility of success on the merits of their claims.”

West Virginia Attorney General Patrick Morrisey led the charge.

“Petitioners first claim that the Rule’s treatment of tributaries, ‘adjacent waters,’ and waters having a ‘significant nexus’ to navigable waters is at odds with the Supreme Court’s ruling in Rapanos, where the Court vacated the Sixth Circuit’s upholding of wetlands regulation by the Army Corps of Engineers,” the panel wrote in its Oct. 9 decision. “Even assuming, for present purposes, as the parties do, that Justice Kennedy’s opinion in Rapanos represents the best instruction on the permissible parameters of ‘waters of the United States’ as used in the Clean Water Act, it is far from clear that the new Rule’s distance limitations are harmonious with the instruction.

“Moreover, the rulemaking process by which the distance limitations were adopted is facially suspect.”

The rule extends the EPA and Corps’ regulatory jurisdiction to an untold number of small bodies of water, including roadside ditches and short-lived streams or any other area where the agencies believe water may flow once every 100 years.

Thirty-one states and state agencies have challenged the legality of the regulation, arguing it violates the Clean Water Act, the Administrative Procedure Act and the U.S. Constitution. They argue it also usurps their primary responsibility of management, protection and care of intrastate waters and lands.

The National Association of Manufacturers also has challenged the rule, filing a lawsuit against it in July.

Both Capito and Manchin introduced the federal Water Quality Protection Act last year, as an alternative to the new EPA rule. The bill, which failed to pass, would have required the EPA to consult with private industries, small businesses and state and local governments in redrafting the rule.

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Organizations in this Story

National Association of Manufacturers U.S. Environmental Protection Agency (EPA)

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