Obama vetoes resolution to overturn WOTUS

After both houses of Congress passed a joint resolution to nullify the controversial Clean Water Rule, commonly known as Waters of the U.S., President Barack Obama vetoed the bill Jan. 19.

The Senate tried to keep the resolution alive in a cloture vote Jan. 21, but majority leader Sen. Mitch McConnell, R-Ky., was unable to secure the necessary three-fifths majority needed to overturn the veto.

Waters of the U.S., a rule which went into effect in August of this past year, clarifies the jurisdiction of the Environmental Protection Agency and the Department of the Army under the Clean Water Act in cases of smaller bodies of flowing water.

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The rule has come under fire by many industries, including agriculture, oil and gas, construction and more, for its vague terminology and ambiguity. Critics of the rule call it overreaching and say it may give the government too much control over small waterways like irrigation ditches, augmentation ponds and even waterways that sit empty for parts of the year.

“We all want clean water — that is not disputable. I have continuously emphasized that the water we drink needs to be clean and safe. However, 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.” Sen. Joni Ernst, R-Iowa

On Aug. 28, 2015, the day the rule went into effect, so did an injunction protecting 13 states, including Colorado, Nebraska and Wyoming, from its reach. In October, the Sixth Circuit Court of Appeals approved an injunction for all 50 states, staying the rule’s power until further review. In that ruling, the court decided “the sheer breadth of the ripple effects caused by the Rule’s definitional changes” was reason enough to stay implementation of Waters of the U.S.

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That’s the ironic part of the presidential veto, said Sen. Cory Gardner, R-Colo.

“This will have no impact on that decision. The rule is still blocked,” Gardner said. “The vote was to simply to say ‘Hey, the judge has said this has gone too far, now Congress ought to follow through with the judicial decree.’”

Even though the injunction is keeping the Waters of the U.S. at bay right now, it’s the uncertainty of how long it will stay that way that’s worrying farmers.

Brent Boydston, vice president of public policy for the Colorado Farm Bureau, said farmers and ranchers not only wonder if some part of their operation will fall under EPA jurisdiction, but what steps they would have to take if it did. The rule doesn’t answer those questions, Boydston said.

“It runs the gauntlet of, is that wet spot that’s in my field that’s wet for two weeks or a week out of the year, is that going to become jurisdictional … (to) how is it going to impact irrigation?” Boydston said. “The whole rule — it was bad from the start, it’s been bad the whole time.”

Gardner, who co-sponsored S.J. 22, the bill that would have repealed the rule, said he’s heard a number of comments from his constituents who are concerned about Waters of the U.S., from construction businesses to workers in the energy sector and more. He said if you use water in Colorado, the rule could potentially impact you.

Gardner said he asked Gina McCarthy, the head of the Environmental Protection Agency, if she was familiar with Colorado water law during a Senate hearing. She said she wasn’t. If the EPA doesn’t understand how Colorado’s water works, Gardner said he doesn’t see how the agency can reasonably oversee it.

Sen. Joni Ernst, R-Iowa, Gardner’s co-sponsor of S.J. 22, said she supports the need for clean, safe water, but Waters of the U.S. isn’t the bill to get it.

“We all want clean water — that is not disputable. I have continuously emphasized that the water we drink needs to be clean and safe,” Ernst said in a news release. “However, 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.”

Rep. Ken Buck, R-Colo., said the rule could create an unnecessary financial burden on small businesses and areas already struggling with economic hardships, like northern Colorado’s current struggle with low oil and gas prices.

“Waters of the U.S. will cost Colorado jobs with no real benefits,” Buck said. “It creates a burden on those who are in business.”

Sen. Michael Bennet, D-Colo., voted against S.J. 22 initially and voted against cloture. In a statement from the Senator’s office, spokesman Philip Clelland said Bennet plans to continue to work with Coloradans to balance the need for regulation and the desire for regulations to not be burdensome.

Since this bill is off the table, the next steps for Congress to address Waters of the U.S. lie in other legislation. Gardner said he supports a bill in the works to send the Clean Water Rule back to the EPA for rewrites.

Though the law isn’t impacting farmers across the country, the threat of it still is. Zippy Duvall, the newly elected president of the American Farm Bureau Federation, said the president’s veto and allowing the rule to continue is “salt in the wounds of farmers and ranchers.”

“Courts have ordered the rule temporarily halted because of the harm it will cause. But, somehow, the president and the EPA just keep pushing,” Duvall said in a news release. “But we won’t stop either. We will not rest until this rule is gone.” ❖