Where now on Waters of the U.S.?

Where now on Waters of the U.S.?

Courts have put a halt on EPA's Waters of the U.S. rule while the Senate was unable to muster support to send the rule back to the drawing board.

The legislative track of derailing the Environmental Protection Agency and U.S. Army Corps of Engineers' waters of the United States rule was dealt a setback in November. The Senate was unable to muster enough votes to proceed to full debate for a bill that would require the agencies to go back to the drawing board and work with stakeholders.

Related: Senate blocks revised WOTUS, but will debate its elimination

Widely supported by agricultural groups, a bipartisan bill led by Sen. John Barrasso, R-Wyo., would have required the EPA to start over with the water rulemaking. The Senate voted 57-41, falling short of the necessary 60-vote threshold to avoid a filibuster.

Courts have put a halt on EPA's Waters of the U.S. rule while the Senate was unable to muster support to send the rule back to the drawing board.

In his floor speech urging senators to support the bill, Sen. Pat Roberts, R-Kan., said over 90 agricultural groups have signed a letter in support of this legislation.

"Additionally, ongoing litigation involving 31 states challenging the final rule only adds further confusion about implementation and applicability of the final rule across the rest of the country. It is time for Congress to intervene," Roberts said.

Rather than voting to proceed to legislation that would dismantle the rule in its entirety and undermine key environmental protections, Sen. Angus King, I-Maine, led his colleagues in calling on the EPA to work with farmers to get the rule right.

"I believe it is the responsibility of the EPA to provide more clear and concise guidance on how this rule will work in the real world," he continued. King said although he didn't support the bill on the Senate floor if EPA fails to offer farmers guidance, "I will not hesitate to support a bill that will amend or change the rule so that it does."

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Disapproval
The Senate held a second vote shortly thereafter on proceeding to debate on the Resolution of Disapproval of the Waters of the U.S. rule introduced by Sen. Joni Ernst, R, Iowa. The motion to proceed on a resolution does not require 60 votes and the resolution itself was approved. Only one Republican, Susan Collins of Maine, voted against the resolution and three Democrats - Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia - voted for it.

A resolution of disapproval is a legislative procedure used to try to overturn regulations and rules put forth by the executive branch. A simple majority of the Senate is needed for passage. If the Senate and House pass the resolution, the President must sign it to become law. If the President vetoes the bill, Congress must overturn the veto for the resolution to take effect. It will likely end at the president's desk with his veto which he already threatened.

Currently, the United States Court of Appeals for the Sixth Circuit has temporarily stayed implementation of the WOTUS rule across the country until they can determine jurisdiction. In granting the stay, the Court found that the WOTUS rule may violate established law on the extent of the Clean Water Act. Moreover, the Court cited the flawed rulemaking process used by the EPA and the arbitrary nature of the limits set in the rule.

In a statement from Sen. Chuck Grassley, R-Iowa, a cosponsor of the bill, said considering that two federal courts have blocked the rule from moving forward, going back to the drawing board "hardly seems like an unwarranted proposition."

Grassley said that federal courts have already ruled that the rulemaking process was flawed. "Now a bipartisan majority of the Senate has voiced its approval as well," Grassley said of the 57 votes in favor of the bill to mandate collaboration with states and others affected by the rule. "Unfortunately, a filibuster by a minority of the Senate and a veto threat by the President will ensure that the courts decide this instead of the representatives of the American people."

Related: Senators resolve to nullify waters of the U.S. rule

Paul Beard, California-based attorney who represents property owners impacted by WOTUS, said the failed vote is a disappointment. However, he said Congress needs to go beyond just trying to require the executive branch to change the rule, but rather should define through legislation what is a waters of the U.S.

"It is disappointing that the legislature wasn't able to do something," Beard said, adding it's unlikely anything further will be approached until after a new president is elected. "Now it's up to the courts on whether to strike down the WOTUS rule and possibly in that decision they may provide the agencies with some further guidance."

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