An Environmental Protection Agency water regulation change heavily backed by President Barack Obama was proposed as legislation in 2009 by then-Wisconsin Sen. Russ Feingold (D). After the proposal died in Congress and Feingold received the boot from voters in 2010, the Obama Administration EPA moved ahead with implementing the change anyway using the regulatory power of the federal government. The change, now known as the Waters of the United States (WOTUS) rule, dramatically expands the reach of federal environmental regulators when it comes to waterways and activities that occur on or near those waterways.
Since this spring, the fight over the WOTUS rule has played out in dramatic fashion in Washington as Congressional Republicans joined by Democrats from Republican-leaning states have challenged its implementation.
For his part, Sen. Feingold, now a professor at California’s Stanford University, has announced his campaign to recapture his old U.S. Senate seat in Wisconsin. He has avoided talking about his role in the development of the WOTUS rule.
In May, the EPA unveiled the rule which changes how the regulators interpret the language of the federal Clean Water Act, moving away from the more narrow authorization that the agency regulate the “navigable waterways” of the United States to the broader mandate that the agency regulate all waters of the United States. Then-Speaker of the House Rep. John Boehner (R-OH) declared the rule placed farmers, small business owners and others impacted by it “on the road to a regulatory and economic hell.”
Litigation spawned by the change led the 6th U.S. Circuit Court of Appeals to announce in early October that it was putting a stay on the implementation of the rule.
Although the Obama Administration has assumed full ownership for the rule, its roots can be traced to 2009 S.787, the “Clean Water Restoration Act” sponsored by Sen. Feingold. The legislative summary explained just how massive the change from “navigable waters” to “waters of the United States” would be:
“Amends the [Clean Water Act] to replace the term ‘navigable waters’ that are subject to such Act with the term ‘waters of the United States,’ defined to mean all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, and natural ponds, all tributaries of any of such waters, and all impoundments of the foregoing.”
A northern Wisconsin newspaper, worried about how Feingold’s crusade to expand federal power would impact the many lakes and streams in his home state explained at the time:
“By deleting the term ‘navigable’ from the Act – which appears in the current law more than 80 times – the bill would require federal regulation of virtually all wet areas, including ditches, culverts, and many treatment ponds, the group contends.”
A U.S. Senate effort to Congressionally block implementation of the WOTUS rule failed on Tuesday despite bipartisan support for the effort. “At what point does the EPA…at what point does our administration…actually put some confidence in our farmers, in our ranchers, in our small businesses?” Democrat Sen. Joe Donnelly (D-IN) wondered during the debate. Donnelly was among those Democrats who joined Republicans in voting to block the rule.
Sen. Ron Johnson (R-WI), who replaced Feingold, has consistently expressed his opposition to the WOTUS rule, declaring back in May that he was “disappointed that the EPA has finalized its controversial ‘Waters of the United States’ rule. This rule is the latest example of executive overreach that could harm Wisconsin farmers and businesses with increased permitting costs and undue litigation.”
Lucas Vebber, an environmental policy expert with Wisconsin Manufacturers and Commerce, argues that, “The regulatory uncertainty created by this massive federal power grab will be devastating for Wisconsin employers and private property owners as they’re forced to comply with a host of new federal regulations on waters that have never before been regulated under the Clean Water Act.” According to Vebber, “The WOTUS rule is a significant and scary expansion of federal authority that would force federal regulation onto waters traditionally regulated by the state.”