E&E NEWS: WATER POLICY: Lawmakers see uphill fight for WOTUS redo

Key senators signaled yesterday that the fate of the Obama-era Clean Water Rule will remain in the hands of the federal courts rather than Congress, given the long odds of a legislative solution to the legal imbroglio.

Republicans have tried for years to nullify the rule — which a federal court last week reinstated for 26 states — only to come up short in the face of Democratic opposition.

In the 115th Congress, a policy rider that aimed to shield a Trump administration rewrite from the requirements of the Administrative Procedure Act has been in the mix in the appropriations process but has failed to make it into any of the spending bills that became law.

Supporters of the rule last Thursday won an injunction against the administration’s February order suspending it, with a federal judge agreeing that the Trump White House did not follow the APA (E&E News PM, Aug. 16).

Daren Bakst, senior research fellow in agricultural policy at the conservative Heritage Foundation, said the South Carolina ruling brings new urgency to the issue.

“There was a big need for the rider before, this just adds to it,” he said last week. “This is something that needs to be taken care of.”

That the Waters of the U.S. rule is now revived in 26 states hurts landowners there, Bakst said, and could have been avoided with legislation exempting WOTUS from the Administrative Procedure Act or simply withdrawing it.

“The EPA and [Army] Corps [of Engineers] should be able to get rid of this rule and move on, and Congress needs to pass a rider in the appropriations bill or the farm bill or wherever they want to pass it so that the agencies can withdraw the rule and come up with something that is consistent with the Constitution and the underlying statute,” he said.

Senate Environment and Public Works Chairman John Barrasso (R-Wyo.) said yesterday he was “taking a look at options” in response to the court’s order.

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