[Congressional Record Volume 140, Number 62 (Wednesday, May 18, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: May 18, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
               SAFE DRINKING WATER ACT AMENDMENTS OF 1994

  The Senate continued with the consideration of the bill.
  Mr. WALLOP addressed the Chair.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. WALLOP. The regular order would be amendment 1715 offered by the 
Senator from Wyoming?
  The PRESIDING OFFICER. The Senator is correct.


                           Amendment No. 1721

  Mr. WALLOP. I ask that the regular order might be suspended and that 
I might talk on an amendment following that, No. 1721.
  The PRESIDING OFFICER. It would also be in order to call for the 
regular order with respect to No. 1721.
  Mr. WALLOP. Therefore, I will be addressing amendment 1721, which was 
offered earlier.
  The PRESIDING OFFICER. That is the pending question.
  The Senator may proceed.
  Mr. DOMENICI. Mr. President, I wonder if the Senator will yield me 2 
minutes for a brief colloquy.
  Mr. WALLOP. Yes, I will yield for that purpose.
  Mr. DOMENICI. If I can get the attention of Senator Chafee, last 
night, Senator Bingaman, my colleague from New Mexico, spoke on the 
floor about a very serious problem we have in our State--and Texas has 
the same problem and parts of Arizona--called the colonias.
  The bill that I introduced along with Senator Boren, Senate bill 
1920, which was used to do some negotiating in behalf of the Governors 
and mayors, had in it protection authorization for funding for these 
unincorporated, small communities that are in terrible condition, with 
no water, no sewer, and they are in the United States. That is not in 
the bill that you introduced--you and the chairman--but I would like to 
ask, since we are not going to put any such funding on this bill--and 
with that I concur--is the position of the ranking member similar to 
that of the chairman, that when we get the next environmental bill, 
which may be the Clean Water Act, perhaps, that every consideration 
will be given to helping us get authorization for that, so that it 
might come out of the $500 million that is already appropriated for 
disadvantaged communities?
  Mr. CHAFEE. Mr. President, I want to assure the Senator from New 
Mexico, who has been vitally interested in this colonias situation, 
yes, we will give every effort to consider his special situation, the 
colonias situation, as it exists along the New Mexico-Mexican border, 
for authorization for those funds that have been appropriated.
  Obviously, there will be a large demand upon the funds, and the 
question will be how to set some form of priority. But the answer is, 
yes, the next bill probably will be the clean water bill. If that does 
not come up for some reason, then there is the water resources bill 
that clearly will come along, and we can consider it on one of those 
other two--I think the Senator said on the next environment bill. There 
is a possibility that Superfund might come along, and that would not 
really be the bill to put it on. So either the clean water bill or the 
water resources bill.
  Mr. DOMENICI. I thank my friend.
  Let me close by saying that I have been working on this problem for 
quite some time. We did get some funding out of appropriations the year 
before last, and that money has not yet all been used. The problem is a 
severe one. I thank my good friend.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Wyoming is recognized.


                           Amendment No. 1721

  Mr. WALLOP. Mr. President, I doubt that any of us, over the last 
couple of years has escaped noticing the fact that Americans actively 
fear their Government. They actively seek to serve it lest it take 
notice of them. This holds true not just of small businessmen and 
women, or ranchers, or farmers, or truckers, or dairymen, or bankers, 
or real estate operators; it holds true also of elected officials, 
county, and city officials. At the conclusion of my remarks, I will 
begin to describe some of the things that the EPA has done for my 
community of Sheridan.
  The thing that is interesting about this concept of Americans being 
frightened of their Government is that they do not know where the 
Federal authority to do certain things comes from. They do not know who 
to blame. Senators and Members of Congress will come home and say, ``I 
never expected them to do it that way. That is the bureaucrat, the 
regulator.'' The regulator will say, ``We were authorized to do this 
under the legislation just passed,'' and there is no democratic 
accountability. Nobody for whom you voted can be nailed with this 
thought or credited with this thought.
  So what this amendment of mine would do is to make the Safe Drinking 
Water Act regulations advisory in nature, allowing the States to choose 
which of those Federal regulations are appropriate and applicable 
within their boundaries.
  Mr. President, this is not a reckless concept. This is a concept 
which says that those people who you know at home are going to be 
voting to adopt or choosing to adopt a set of rules and regulations 
that will guide them through the various intricacies of providing safe 
drinking water for their people.
  I do not know very many local officials who are going to be willing 
to just up and say, ``The heck with that, that is the Federal 
Government, we are not going to pay any attention to them. They are not 
going to do that.'' But there has been in the past--and I will say to 
the managers of the bill that this bill goes a long way toward 
redressing some of the utterly ridiculous concepts noted--namely, that 
we in Wyoming are testing for pesticides used only in Hawaii. The fact 
is that we would be naive to assume that under this bill, there will 
not be circumstances that will be deemed to be ridiculous within one 
State or other. And that which might be deemed to be ridiculous, 
because no hazard is being addressed or no safety credit is being 
created, might be a different thing in the State of Wyoming than the 
State of the occupant of the chair. But at least those who are elected 
and accountable and responsible to the citizenry will be the ones who 
get credited with, or blamed for, the acceptance of certain criteria in 
the provision of the safety standards.
  The bill that we are considering today is one of the most important 
measures that this Congress will consider. Providing such an immediate 
and basic service as the delivery of clean and safe drinking water is 
something with which anyone can identify, even though the language in 
the bill, and the actual implementation of it is complex and extremely 
technical in nature. The beauty of this issue is that it graphically 
illustrates another basic concept, and that is the concept of 
federalism, the balance of power between Federal, State, and local 
governments, and what goes wrong when the balance tilts too far in one 
direction.
  The reason consideration of this vital measure has been so 
contentious and has therefore been so delayed is that Americans are 
beginning to understand the consequences of allowing the Federal 
Government to assume all the power unto itself.
  The 1986 amendments to the Safe Drinking Water Act have been 
described as an overreaction to the scare of contaminated drinking 
water. The result was to strangle this country in bureaucratic red 
tape. The standard setting and monitoring requirements were excessive, 
unnecessarily expensive, and not especially effective.
  States, municipalities, and water providers all across America have 
been made to take action they know to be useless, and their taxpayers 
have been forced to foot bills they never should have received in the 
first place. We have seen time and time again where the Federal 
Government has ordered a community to tax itself. Mr. President, the 
concept of America when it was established was there ought not to be 
taxation without representation. Nobody I know believes the EPA to be 
representation. We have reached the point of general recognition that a 
large, centralized Federal Government simply cannot answer to all the 
problems Americans face today.
  The city manager from Casper, WY, told me that the Federal 
Government, through the EPA, will bankrupt this Nation, and it is a 
thought echoed all across America. We can no longer impose substantial 
and unaffordable burdens on municipalities and States.
  My amendment does not just address the unfunded mandate issue, it 
goes further. It was a recognition that we have stripped responsibility 
from where it belongs--State and local politicians, who are immediately 
held accountable by their constituents, the persons that they have 
sworn to serve, and water utility professionals, who have dedicated 
their careers to protecting, preserving, safe drinking water to the 
customers and families. They are known at home, and the threat of doing 
wrong is clearly recognized by those at home. But the threat is 
balanced between the notion of accountability for the taxes and 
obligations assumed versus the risk understood.
  People came to Congress in droves asking for help. What they wanted 
was strong public health protection through what they hoped would be 
reasonable, practical, and affordable regulation of the public drinking 
water supply. They wanted Congress to recognize that the goal of 
attaining safe drinking water depends on the unique circumstances of 
each locality, the local topography, the climate, the soil conditions, 
the specific water source, the mixture of contaminants present, and 
size and economic status. No single answer voted on here tonight could 
provide a blanket that covers all of America.
  The Wyoming Association of Rural Water Systems wrote that they 
support a commonsense approach covering water systems, especially the 
small systems in the State. We believe that the State of Wyoming should 
be provided flexibility to address the specific considerations of each 
system rather than a one-size-fits-all policy determined by the Federal 
Government.
  The National Rural Water Association asked simply that we allow water 
system administrators to do what is in the public interest, not just to 
be dictated to by Washington.
  It is interesting, but not surprising, to see how Congress responded 
to the pleas for common sense. The original bill, S. 1547, would have 
imposed even more substantial costs and regulatory burdens accompanied 
by stringent law-enforcement provisions in order to bring swifter 
punishment. S. 1547 was opposed by the National Governors, the 
Conference of Mayors, the League of Cities, the Association of 
Counties, and nearly every rural water association in America.
  Through compromise and hard work, S. 1547 was significantly changed 
until it became S. 2019, and now the managers of the bill have amended 
it further, and so have Senators, in an effort to make it more 
acceptable to more Americans. I applaud their efforts and thank them. 
They have taken a hesitant step in the right direction, but Congress 
can, and must, do more.
  The amendment I am offering clarifies that the Federal role in this 
important issue of protecting the public health is advisory in nature. 
The Federal role is to provide financial and technical assistance and 
not to dictate impracticalities under the threats of draconian 
penalties. The amendment is simple. It allows States to choose which 
Federal regulations they feel are appropriate and applicable within 
their boundaries and to which they will submit to Federal oversight. 
Other regulations remain available for their information and thus are 
advisory in nature.
  My amendment will make this a true Federal-State partnership and 
return responsibility, democratic responsibility, to those who best 
know their problems and how to resolve them.
  The original act was supposed to establish a State-Federal 
partnership. It did not. This will not. The Environmental Protection 
Agency was to set national drinking water standards, and qualifying 
States were primarily responsible for their enforcement. As a part of 
this statutory scheme, however, Congress set out the initial State 
primacy requirement, and EPA was to prescribe by regulation the manner 
in which it would grant and withdraw State primacy. Specifically under 
the act, a State has primacy during any period for which the EPA makes 
a determination that the State satisfies certain requirements, 
including adoption of regulations that are no less stringent than the 
national primary drinking water regulations in effect.
  In other words, there is no partnership. There is an adversarial 
role. EPA says, ``Do this.'' And if the State says, ``I will do it,'' 
then EPA says, ``You can administer it.'' But if the State says, 
``These are not rational,'' the EPA says, ``No, you cannot do it.''
  So there is no partnership, Mr. President. There is a role of ruler 
and ruled, and that is what this amendment seeks to eliminate.
  It is a twisted view of primacy to insist that States adopt drinking 
water regulations that are no less stringent than the national primary 
regulations, and then order them to use their own resources to achieve 
those which are national.
  My home State, Wyoming, has not obtained primacy because it simply 
cannot afford the cost and will not suffer the regulatory nightmares 
that accompany such authorities. Many other States, absent significant 
reform of this act, may soon follow Wyoming's example.
  On top of all the other problems, current law provides even a fine up 
to $25,000 a day for violations. It often occurs because small systems 
simply cannot afford to comply with horrendous and unnecessary 
monitoring and paperwork provisions. There are towns in the State of 
Wyoming which might just as well turn over the keys of the city to the 
EPA because the fines are greater than the assessed valuations.
  With this bill, we establish Federal administrative penalties for 
drinking water violations, and we increase the penalties for civil 
enforcement action. In addition, we will allow EPA to take an 
enforcement action within a State without providing the State the 
opportunity to initiate its own action. This is a dangerous precedent, 
indeed. My amendment would ensure that the Federal role is 
appropriately one of research, education, technical advice, and 
financial support.
  Mr. President, let me conclude with a couple of interesting things. 
There is the experience of my town of Sheridan. An article in the 
Sheridan Press:

       The Environmental Protection Agency is prepared to take 
     immediate action against the city of Sheridan if the capital 
     facilities tax is rejected by the voters on July 25.

  Mr. President, most of us grew up in America thinking that taxation 
without representation meant that we had a vote. We had a say. We did 
not have someone in Washington saying, ``If your voters do not agree 
with us and tax themselves, we will punish you,'' which is an amazing 
concept. That is what this amendment seeks to address.
  Under the Safe Drinking Water Act, the EPA threatened the city of 
Sheridan with fines and penalties if they did not provide treated water 
taps along the Big Goose Valley. For the first time in EPA history, 
they chose to mediate the safe drinking water violations. It was a very 
good process. We worked with the safe drinking water people in my town. 
We came up with a solution. The city and the county envisioned building 
an entire new water delivery system countywide.
  Mr. President, the cruel thing about it is that the water supply was 
part of the mediated solution, but guess what happened. The safe 
drinking water people do not talk to the clean water people, and the 
clean water people would not allow us to put in the reservoir. The 
Corps of Engineers said it would be just fine by them if we condemned 
the property right of ranchers and irrigating farmers along the way and 
took that water as a source of supply instead of using one that the 
city and the EPA safe drinking water people had agreed upon.
  Mr. President, this is a total abuse of the power of the Government 
over the States. The Federal Government ought never to have such power 
as to make a statement in the paper the night before the election that 
if the citizens of a community do not vote to tax themselves, the 
Government of the United States will penalize and punish them. And then 
having mediated the problem, tell them the mediation does not work, 
``Sorry, boys, we are out.''
  That is what this amendment seeks to address. It is not viewed by 
this Senator as a radical departure but only as a means of requiring 
accountability to the process of democracy, which so seldom now does 
exist.
  Mr. President, I yield the floor.
  Mr. BAUCUS addressed the Chair.
  The PRESIDING OFFICER. The Senator from Montana.
  Mr. BAUCUS. Mr. President, this is a sweeping amendment. It 
essentially provides that States can pick and choose which provisions 
under the Safe Drinking Water Act apply to them and which ones do not 
apply to them.
  Essentially, it is a 20-year step backward because, in 1974, 
Congress, for the first time, passed the Safe Drinking Water Act. Prior 
to 1974, there was too much illness and too many deaths as a 
consequence of unsafe drinking water in too many communities across our 
country. Congress felt it would be wise to lay a basic foundation to 
address unsafe water systems in our country.
  It is a bit complex. We are one Nation. We are 50 States. We have a 
Federal system. We had to find the right balance between national 
Federal provisions on one hand and State and local control on the 
other. It is not an easy matter.
  It is not easy, either, because we travel in our country. Residents 
of North Dakota often visit Wyoming, often visit Rhode Island, Montana, 
and vice versa. We are a mobile society, a mobile country, a mobile 
people.
  I think Americans assume that the water they drink in any State is 
safe and clean. It is an assumption we all make as Americans. And we 
are proud of that. There have been few exceptions. The cryptosporidium 
scare in Milwaukee is an example. Here in Washington, DC, tens of 
thousands, maybe hundreds of thousands, of people had to boil water to 
drink for several days because of a breakdown in the Washington water 
system.
  But, essentially, Americans think they can drink the water wherever 
they visit, wherever they travel.
  It is also important because many Americans take jobs in other 
States. We are becoming more transient and more mobile with each 
passing year. I think the rule of thumb now is a person can have maybe 
10 or 12 different jobs in his or her lifetime.
  We also are proud of our drinking water in juxtaposition with 
drinking water in other countries. It was not too many years ago that 
many Americans thought that we have safe drinking water, but it is 
those other folks in other countries that may not. The question was, is 
it potable? Can you drink water in another country? Our water is safe, 
but maybe it is not safe in other countries.
  Well, that is changing a bit now. Most countries, certainly developed 
countries, industrialized countries, have good, clean, safe drinking 
water.
  We want to be sure to continue to have good, clean, safe drinking 
water in our country. It is very important for all Americans.
  Congress, therefore, passed legislation in 1974. It has had kind of a 
bumpy ride. In 1986, Congress passed amendments to the Safe Drinking 
Water Act which overdid it; went too far. Frankly, that is why we are 
here today. We are trying to make the system work better than it would 
work under the 1986 amendments.
  This legislation before us, I think substantially addresses the 
problems that were caused by the 1986 amendments. We dramatically 
reform the testing requirements and monitoring requirements that were 
otherwise imposed upon communities, particularly smaller communities. 
We also add much more flexibility to the technology requirements for 
those communities, particularly small communities, if a contaminant is 
found.
  In addition to that, we give much, much more flexibility to States, 
where the States themselves can decide how to administer their drinking 
water program.
  An example is the State monitoring plans. We make it very easy for 
States to develop their own State monitoring program which will achieve 
dramatic savings.
  There are three States that come to mind that already participate in 
the State monitoring waiver program. They are Wisconsin, Massachusetts, 
and Michigan. In the State of Michigan, the monitoring costs are 
reduced to one-tenth what they otherwise would be if that State did not 
have a State waiver for its monitoring program.
  We made it very clear in this bill. We are reducing a lot of redtape 
so that the other remaining States, remaining 47, can very easily 
develop their own State monitoring programs. That is important because 
each State is different.
  In addition to that, localities within States are different. Some 
part of one State might have an industry that would make it advisable 
to monitor for certain contaminants which may not be found in another 
part of that State, which means that monitoring would not be required. 
There is dramatic flexibility here.
  In addition, Mr. President, we are funding the remaining reformed 
mandates in this legislation--$600 million the first year, $1 billion 
in State revolving loan funds in each successive year, over $6 billion. 
So we are addressing the problem.
  I might say, Wyoming is the only State in the Nation that has not 
taken over its drinking water program. Wyoming is the only State where 
EPA runs it.
  Part of the solution, I submit, frankly, not only for Wyoming but for 
all States, is for the States to take over the drinking water programs 
themselves and then they can tailor their program to conditions that 
are very appropriate to the State.
  Basically, I think it is clear on its face that this amendment is a 
gigantic, 20-year step backward; back to where we were before the 1974 
Safe Drinking Water Act. It would essentially allow States to have veto 
power over any safe drinking water rule or regulation. I do not think 
that is wise policy because then we have 50 States with completely 
different policies. We will have no idea whether Americans traveling 
around the country, whether in this community or that community, the 
drinking water is safe or not. I do not think it is a good way to do 
business.
  In order to address that balance between national legislation on the 
one hand and State and local control on the other, we, again, are 
dramatically reducing the requirements. We are adding many, many 
Federal dollars to help States comply. We are giving much, much more 
flexibility to States. In fact, I think the balance is a good balance 
between national control on the one hand and total State control on the 
other.
  It is for those reasons that I strongly encourage the Senate not to 
agree to the amendment by the Senator from Wyoming. If this amendment 
were adopted, it would completely gut this bill. We would be back, as I 
said, to where we were 20 years ago.
  I yield the floor.
  Mr. CHAFEE addressed the Chair.
  The PRESIDING OFFICER. The Senator from Rhode Island
  Mr. CHAFEE. Mr. President, I will be very brief because the chairman 
of the committee has touched on most of the issues.
  As I read this amendment, it would make the safe drinking water 
legislation a voluntary program, and yet each State would continue to 
receive the Federal funds. It is a win-win situation, I must say, for 
the States. They do not have to enforce it, but they still get the 
funds.
  The current law, as was pointed out, provides that the States can 
currently take over the administration of the program.
  For some reason, Wyoming has not chosen to do this. Wyoming and the 
District of Columbia are the only two entities in the United States 
that have chosen not to administer their own program. And so, 
undoubtedly, Wyoming does run into direct contact with the EPA in 
connection with this program because that is the way they have chosen 
to do it. They may have perfectly good reasons, but it is unique that 
Wyoming has not chosen, as has North Dakota, Rhode Island, Montana, and 
all the other States in the Nation, to administer its own program.
  I, again, would like to reiterate the point that the chairman made 
that drinking water can present very serious health risks. The EPA has 
a science advisory board. The science advisory board ranked drinking 
water among the four most serious environmental risks to health that we 
have in our country.
  So it seems to me there is a Federal role in protecting drinking 
water for the very reasons that were pointed out--because of the 
mobility of our population, the transient nature that we have. And 
having one set of uniform standards across the country, it seems to me, 
is appropriate.
  Are we going to ask every State to try to develop its own standards? 
Are we going to have 50 different sets? This is a tremendous burden to 
impose on the States.
  I think this piece of legislation we have before us, as the Senator 
from Wyoming pointed out, goes a long way to take care of the 
particular problems of the small water supply systems. So, therefore, I 
reluctantly oppose the amendment by the Senator from Wyoming and hope 
we could vote on it fairly soon.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. WALLOP. Mr. President, the Senator from Rhode Island suggested 
this would be a burden on the States. Let me suggest the States have 
the option of embracing the Federal regulation in its entirety. That is 
not much of a burden. And they do that if and when they think it meets 
the needs of their people.
  Is it not funny how we no longer trust local government? Is it not an 
astonishing statement to say the people you vote for in the States are 
not competent or trusted? The people whom you vote for in your counties 
are not competent or to be trusted? The people who run your cities are 
not competent to be trusted? Only Washington.
  I will say to the Senator why Wyoming has not assumed primacy. 
Because Wyoming was required, as has every other State been required, 
to adopt in its entirety the Federal regulation. That is not a 
partnership, as I stated in my opening remarks. That is a mandate: Do 
it our way or we will do it our way. The only difference is that in 
Wyoming for us to do it their way would have required us hiring some, I 
think the figure was 20 or 30 new people, to service a population of 
half a million people.
  Do it our way or we will do it our way, is what the partnership is 
today.
  I am not asking, and I do not suspect there are going to be, a whole 
lot of different standards around the country. The Senator from Montana 
is talking about the problems of cryptosporidium in Milwaukee. That is 
my point exactly, I would say to the Senator. Thousands were ill, and 
many died as a result of this parasite. But the mayor of Milwaukee 
knew, more than anyone else, about what went wrong and how to solve it.
  But guess what he was doing. He was spending money monitoring things 
mandated by the Federal Government for 25 new contaminants listed every 
3 years on a totally arbitrary basis. I would say that what happened in 
Milwaukee, in Washington, DC, happened under the aegis of the EPA and 
under the aegis of the Safe Drinking Water Act. It was not solved by a 
Federal solution, it was created by the Federal solution.
  I grant what the Senator says about prior to 1974. But there was no 
EPA capability to provide the kinds of information, the kinds of 
science and the technology base which I am suggesting is the 
appropriate Federal role: To provide the information, to provide people 
with knowledge of what constitutes risk and what does not, to provide 
science to give people counsel as to what constitutes good technologies 
and what does not.
  There is this unbelievable assumption that local officials will 
ignore unsafe circumstances that are a threat to their community and 
that a local government official cannot feel as much pain about these 
threats as we in Washington. That is a very strange concept. ``Only 
Washington, only the beltway, can provide sensitivity to health 
threats. Local government officials--do not trust them. They are not to 
be trusted. Washington knows and locals do not and States do not and 
counties do not.''
  I just say again the flexibility which is described in this bill is 
more than was in the 1986 act, but the flexibility that was provided in 
the 1986 act says, EPA says: You adopt in its entirety our way of doing 
things, you do our work, and we will only fine you if we think it is 
wrong.
  I think the State of Wyoming quite wisely said to the EPA, if it is 
going to be your way, you do it. The confrontations that we had in 
Wyoming were not unique to Wyoming. They happened in other States which 
had their own programs and their programs were threatened to be taken 
away when the States protested that they needed a little bit of 
flexibility, they needed to do some things more cheaply. ``Oh, no,'' 
says the EPA, and, ``Oh, no,'' will say the EPA when this thing comes 
down the road in its current configuration.
  Mr. President, the solution of Wyoming was to opt not to do something 
over which they had no say and just become the administrative flunky of 
an agency in Washington. What other States have done is up to them. But 
my guess is, and from what I have heard, that other States have been as 
frustrated as has been Wyoming. Other States have had small communities 
threatened with fines that were more than their assessed valuation, and 
the States, on top of it, were threatened to be fined as well.
  Is this a Government that was once conceived of as a Government of 
the people and for the people? Or is this Government now master of the 
people? And do we now owe it our obligation to serve it in quiet?
  I think that is what the question is here, Mr. President. That is the 
meaning of my amendment and that is the spirit in which I offer it.
  I yield the floor.
  The PRESIDING OFFICER. Is there further debate on the amendment?
  Mr. BAUCUS. Mr. President, I think the issue is fairly well defined. 
It is my strong view this amendment does gut the bill before us, sets 
us back 20 years. I urge the Senate not to agree to the amendment.
  The PRESIDING OFFICER. Is there further debate on the amendment? If 
not, the question is on agreeing to the amendment.
  Mr. WALLOP. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. WALLOP. Mr. President inasmuch as nobody has answered the 
rollcall yet, I ask I be recognized for 30 seconds not on this 
amendment; that is, to state to the managers I will withdraw amendment 
No. 1715.
  The PRESIDING OFFICER. Without objection.
  The amendment (No. 1715) was withdrawn.
  The PRESIDING OFFICER. Does the Senator have anything further to add?
  Mr. WALLOP. The Senator has nothing further to add. I am willing to 
have the rollcall proceed. Thank you.
  The PRESIDING OFFICER. The clerk will continue to call the roll. The 
assistant legislative clerk resumed the call of the roll.
  Mr. FORD. I announce that the Senator from North Dakota [Mr. Conrad] 
and the Senator from Louisiana [Mr. Johnston], are necessarily absent. 
I also announce that the Senator from Alabama [Mr. Shelby] is absent 
because of illness.
  Mr. SIMPSON. I announce that the Senator from Idaho [Mr. Kempthorne] 
and the Senator from Delaware [Mr. Roth] are necessarily absent.
  The PRESIDING OFFICER [Mr. Feingold]. Are there any other Senators in 
the Chamber who desire to vote?
  The result was announced, yeas 28, nays 67, as follows:

                      [Rollcall Vote No. 121 Leg.]

                                YEAS--28

     Bennett
     Brown
     Burns
     Coats
     Cochran
     Craig
     D'Amato
     Dole
     Faircloth
     Gramm
     Grassley
     Gregg
     Hatch
     Helms
     Hutchison
     Lott
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Pressler
     Simpson
     Smith
     Stevens
     Thurmond
     Wallop
     Warner

                                NAYS--67

     Akaka
     Baucus
     Biden
     Bingaman
     Bond
     Boren
     Boxer
     Bradley
     Breaux
     Bryan
     Bumpers
     Byrd
     Campbell
     Chafee
     Cohen
     Coverdell
     Danforth
     Daschle
     DeConcini
     Dodd
     Domenici
     Dorgan
     Durenberger
     Exon
     Feingold
     Feinstein
     Ford
     Glenn
     Gorton
     Graham
     Harkin
     Hatfield
     Heflin
     Hollings
     Inouye
     Jeffords
     Kassebaum
     Kennedy
     Kerrey
     Kerry
     Kohl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lugar
     Mathews
     Metzenbaum
     Mikulski
     Mitchell
     Moseley-Braun
     Moynihan
     Murray
     Nunn
     Packwood
     Pell
     Pryor
     Reid
     Riegle
     Robb
     Rockefeller
     Sarbanes
     Sasser
     Simon
     Specter
     Wellstone
     Wofford

                             NOT VOTING--5

     Conrad
     Johnston
     Kempthorne
     Roth
     Shelby
  So, the amendment (No. 1721) was rejected.
  Mr. CHAFEE. Mr. President, I move to reconsider the vote by which the 
amendment was rejected.
  Mr. BAUCUS. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           amendment no. 1733

  Mr. CHAFEE. Mr. President, I believe the amendment numbered 1733 
offered by Senator from Washington is pending.
  Mr. GORTON. Mr. President, the amendment I offer today has been 
substantially modified from the amendment I was to originally offer. 
The telephone calls your office may have received from your State 
national rural water affiliate are based upon concerns with my original 
amendment--not the amendment I will offer today.
  My amendment would amend the Small Systems Technical Assistance 
Program provision in the Safe Drinking Water Act. The technical 
assistance provision was set up to allow for small water systems to 
receive technical assistance on compliance with the act. The account is 
reauthorized at $10 million each year for fiscal years 1994-2000 within 
S. 2019. Traditionally EPA has awarded funds appropriated to this 
account to the National Rural Water Association, a national nonprofit 
organization. NRWA, in turn, provides money to each of its State 
affiliates which is used to provide technical assistance to small 
systems in the State. The majority of the States have a National Rural 
Water affiliate, however, I understand a few States share operations.
  Washington State has a National Rural Water affiliate, however, the 
Washington Rural Water Association and National Rural Water are in the 
midst of a disagreement over accounting procedures. I want to make 
clear that the amendment I offer today is not intended in any way to 
impact the ongoing disagreement between National Rural Water and its 
Washington State affiliate. WRWA and NRWA need to work out this 
dispute, and I encourage both to work to do just that. Nonetheless, I 
want to assure that Federal funds from the technical assistance account 
continue to make it to Washington State--and all other States in an 
equitable manner. Simply put Washington State is entitled to its fair 
share of Federal funds from this account.
  My amendment does not seek to change the way in which NRWA and its 
State affiliates do business. My amendment only seeks to assure that 
funds are being distributed on an equitable basis, and that NRWA 
consult with a State on technical assistance issues. Specifically my 
amendment does two things:
  First, it requires the Administrator of the EPA to assure that funds 
awarded to National Rural Water, which NRWA in turn provides to its 
State operations, to deliver technical assistance, are distributed 
among the States in an equitable manner.
  In addition, it requires that NRWA consult with the State agency with 
primary enforcement responsibility in an effort to provide even better 
technical assistance activities in the State.
  I would like to expand on the first point. I would like to define 
equitable as used in this amendment. The Administrator, under my 
amendment, must assure that the nonprofit organization distributes 
technical assistance funds equally amongst the States.
  Furthermore, my amendment requires National Rural Water to consult 
with the States on NRWA-sponsored technical assistance activities in a 
given State. This is an extremely important provision, given that S. 
2019, as amended, gives States increased flexibility in dealing with 
small systems. Since States will be required to establish their own 
monitoring program, under S. 2019, it is vital that folks providing 
technical assistance to these small systems have the benefit of 
consultation with the State. In addition the new operator certification 
program established under S. 2019 makes the consultation between NRWA 
and a State very important for proper compliance with the Act.
  In addition I would like to clarify that my amendment is directed 
toward funding authorized under the technical assistance for small 
systems account which is used for providing technical assistance for 
Safe Drinking Water Act purposes. My amendment should not be 
misinterpreted to be directed at programs--like the Rural Community 
Action Program [RCAP]--but rather solely at funds provided for Safe 
Drinking Water Act technical assistance purposes.
  I would like to thank the committee and Senator Kerrey's office for 
their help in working out the problems with the originally drafted 
amendment.
  I thank the committee for accepting my amendment.
  Mr. President, I would like to thank the managers of the bill for 
accepting my amendment which seeks to ensure that funds from the 
technical assistance for small systems section of the Safe Drinking 
Water Act are distributed equitably among the states.
  Mr. CHAFEE. Will the Senator yield?
  Mr. GORTON. The Senator will.
  Mr. CHAFEE. It would be helpful, in the opinion of this Senator, if 
the Senator from Washington would clarify the definition of 
``equitable'' as used within his amendment.
  Mr. GORTON. The Senator would be happy to clarify the intent for the 
Senator from Rhode Island. The amendment directs the Administrator to 
assure that the nonprofit organization provide technical assistance in 
an ``equitable'' manner. Equitable should be interpreted to direct the 
Administrator to ensure that funding from this program is equally 
distributed amongst the States.
  Mr. BAUCUS. Will the Senator yield for another question?
  Mr. GORTON. The Senator would be happy to yield.
  Mr. BAUCUS. Does the Senator's amendment address only those funds 
which are authorized in the technical assistance account to provide 
technical assistance for drinking water systems?
  Mr. GORTON. The Senator is correct. My amendment only addresses 
funding of the technical assistance program for drinking water systems.
  Mr. BAUCUS. I thank the Senator.
  Mr. CHAFEE. Mr. President, I believe we are ready for consideration 
of the amendment.
  The PRESIDING OFFICER. If there is no debate, the question is on 
agreeing to the amendment.
  Mr. BAUCUS. Mr. President, we have looked at this amendment, and I 
think it is a very equitable answer to a problem.
  I urge its adoption.
  The PRESIDING OFFICER. If there is no further debate, the question is 
on agreeing to the amendment of the Senator from Washington.
  The amendment (No. 1733) was agreed to.
  Mr. CHAFEE. Mr. President, I move to reconsider the vote by which the 
amendment was agreed to.
  Mr. BAUCUS. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Several Senators addressed the Chair.
  The PRESIDING OFFICER. The Senator from Arkansas.


                           Amendment No. 1735

  Mr. BUMPERS. Mr. President, I call up my amendment.
  The PRESIDING OFFICER. If the Senator wishes to ask for regular order 
with respect to his amendment, that would be appropriate.
  Mr. BUMPERS. I ask for regular order.
  The PRESIDING OFFICER. The question is on agreeing to amendment 
number 1735.
  Mr. BAUCUS. Mr. President, I ask the Senator from Arkansas if we 
might suspend so that we can take up the amendment of the Senator from 
Ohio. I think it has been cleared all the way around. It should not 
take very long.
  Mr. BUMPERS. Mr. President, I yield the floor with the understanding 
that my amendment would be the first in order after the amendment of 
the Senator from Ohio is disposed of.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Ohio.


                           Amendment No. 1731

  Mr. GLENN. Mr. President, I call up my amendment 1731. It has been 
cleared on both sides. It is an amendment which passed the Senate by a 
vote of 79 to 15 before, the Department of Environmental Protection 
Act. I ask for a vote.
  Mr. President, I rise to offer an amendment to elevate EPA to 
Cabinet-level status.
  This amendment passed the Senate just over 1 year ago as a free-
standing bill--S. 171, the Department of Environmental Protection Act. 
That legislation passed the Senate by a vote of 79 to 15. 
Unfortunately, the House has failed to pass a counterpart bill, so we 
have not been able to go to conference. My hope is that by attaching 
this amendment to Safe Drinking Water Act reauthorization, we will be 
able to conference a bill and enact it this year.
  I would note that this amendment incorporates S. 171 as passed and 
amended, so it includes all amendments, except one, that were offered 
and agreed to last year--amendments from Members from both sides of the 
aisle. The only difference between this amendment and S. 171 as passed 
is that I have dropped Section 123--the Johnston risk assessment 
provision. I have dropped this provision because a Johnston-Baucus 
compromise on risk assessment has already been debated and adopted as a 
separate amendment to Safe Drinking Water Act reauthorization.
  The PRESIDING OFFICER. Is there further debate on the amendment? If 
not, the question is on agreeing to the amendment of the Senator from 
Ohio.
  The amendment (No. 1731) was agreed to.
  Mr. GLENN. Mr. President, I move to reconsider the vote by which the 
amendment was agreed to.
  Mr. DOLE. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. GLENN. I thank my distinguished colleague from Arkansas very 
much.
  Mr. BUMPERS. Mr. President, I see the Senator from Kansas on the 
floor. I wonder if we could enter into a time agreement on this 
amendment.
  Mr. DOLE. I am certainly willing to. I would like to have the vote 
tomorrow morning, if that is satisfactory with the majority leader.
  Mr. MITCHELL. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. BUMPERS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                Amendment No. 1735 to Amendment No.1729

  Mr. BUMPERS. Mr. President, what is the pending question?
  The PRESIDING OFFICER. The pending question is amendment No. 1735 
offered by the Senator from Arkansas.
  Mr. BUMPERS. Mr. President, I will be as brief as I can.
  What the Senator from Kansas has done under his amendment is to say 
that any Federal policy, regulation, or proposed law that could 
diminish or have the effect of not only taking someone's property but 
diminishing the value of their property would require an agency 
analysis.
  I will give you a classic case in point. This is my substitute 
amendment to the Dole amendment. Today, if the Secretary of Agriculture 
were to propose to the President of the United States that he limit 
durum wheat imports from Canada into the United States, under my 
amendment that would not constitute a taking of anybody's property nor 
would it constitute a diminution in the value of anybody's property, 
and, therefore, the Department of Agriculture would not do, 
essentially, an impact analysis.
  Today, the Department of Agriculture does an analysis if it is likely 
to lead to a taking. That is essentially the difference in mine and 
Senator Dole's amendments. He says the Department of Agriculture must 
do an analysis if it diminishes anybody's property value.
  Let us assume that I am a pasta manufacturer, that I make pasta. Let 
us assume, further, that, by limiting durum wheat imports from Canada, 
durum wheat prices are going to go up and, therefore, the cost of my 
product is going to go up, and it could go up to the point that it 
diminishes the value of my pasta manufacturing facility, indeed to the 
point that I might lose my business. Under the Dole amendment, if it 
diminishes the value of my property by one penny--one penny--I have the 
right to demand that the Department of Agriculture do an impact 
analysis.
  Mr. President, along with my staff, we did a study of all the 
possible scenarios we could think of. I want to applaud the Senator 
from Kansas for offering an amendment on an issue that is going to have 
to be dealt with. It is a very important issue. When we consider the 
clean water bill here, we are going to get back on this issue, I 
promise you, because if the Corps of Engineers says that your land is 
now wetlands and you were planning to build a home on it, obviously 
there has been a serious diminution in the value of your property, at 
least for the purposes for which you bought it. That would trigger an 
analysis under the Dole amendment.
  As I said, under my amendment, which essentially codifies the 
existing law on it, the analysis would only be done if a Federal action 
was likely to lead to a taking--likely to lead to a taking.
  Mr. President, I am not going to belabor this. I hope that every 
Senator, when they come onto the floor, will understand this. I think 
we are going to voice vote this, and we will not have a rollcall vote.
  The other problem with the Dole amendment is that it does not exempt 
anybody. You could tie up emergency aid for the Midwest during the 
floods; you could tie up emergency aid for the Los Angeles earthquake 
for years if our efforts there to assist all of those people had the 
effect of diminishing the value of anybody's property, say in Los 
Angeles, by one penny. Nobody intends that.
  We have always--even the Reagan order, I forget the number of it--the 
executive order of Ronald Reagan exempts law enforcement, exempts the 
military, exempts foreign policy issues and initiatives. The Dole 
amendment exempts nothing.
  So, Mr. President, while I applaud the Senator from Kansas for 
legitimately bringing to this body an issue that is going to have to be 
dealt with, in my opinion it would bring Government to an absolute 
standstill in this country. I cannot overemphasize the staggering, 
unbelievable, effect it would have.
  Having said all of that, Mr. President, we are not going to have an 
extended debate on this. I think the amendment is going to be accepted, 
so I will yield the floor.
  The PRESIDING OFFICER. Is there further debate on the pending 
amendment?
  Mr. BAUCUS. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. DOLE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                    amendment no. 1735, as modified

  Mr. DOLE. Mr. President, I ask unanimous consent that I may modify 
the pending amendment, and I send a modification to the desk.
  The PRESIDING OFFICER. Without objection, the amendment is so 
modified.
  The amendment (No. 1735), as modified, reads as follows:

       Strike all after the first section heading and insert the 
     following:
       (a) Short Title.--This section may be cited as the 
     ``Private Property Rights Act of 1994''.
       (b) Findings.--The Congress finds that--
       (1) the protection of private property from a taking by the 
     Government without just compensation is an integral 
     protection for private citizens incorporated into the 
     Constitution by the Fifth Amendment and made applicable to 
     the States by the Fourteenth Amendment; and
       (2) Federal agencies should take into consideration the 
     impact of Governmental actions on the use and ownership of 
     private property.
       (c) Purpose.--The Congress, recognizing the important role 
     that the use and ownership of private property plays in 
     ensuring the economic and social well being of the Nation, 
     declares that the Federal Government should protect the 
     health, safety, and welfare of the public and, in doing so, 
     to the extent practicable, avoid takings of private property.
       (d) Definitions.--For purposes of this section--
       (1) the term ``agency'' means an Executive agency as 
     defined under section 105 of title 5, United States Code, 
     and--
       (A) includes the United States Postal Service; and
       (B) does not include the General Accounting Office; and
       (2) the term ``taking of private property'' means any 
     action whereby private property is taken in such a way as to 
     require compensation under the Fifth Amendment to the United 
     States Constitution.
       (e) Private Property Taking Impact Analysis.--
       (1) In general.--The Congress authorizes and directs that, 
     to the fullest extent possible--
       (A) the policies, regulations, and public laws of the 
     United States shall be interpreted and administered in 
     accordance with the policies under this section; and
       (B) all agencies of the Federal Government shall complete a 
     private property taking impact analysis before issuing or 
     promulgating any policy, regulation, proposed legislation, or 
     related agency action which is likely to result in a taking 
     of private property, except that--
       (i) this subparagraph shall not apply to--
       (I) an action in which the power of eminent domain is 
     formally exercised;
       (II) an action taken--
       (aa) with respect to property held in trust by the United 
     States; or
       (bb) in preparation for, or in connection with, treaty 
     negotiations with foreign nations;
       (III) a law enforcement action, including seizure, for a 
     violation of law, of property for forfeiture or as evidence 
     in a criminal proceeding;
       (IV) a study or similar effort or planning activity;
       (V) a communication between an agency and a State or local 
     land-use planning agency concerning a planned or proposed 
     State or local activity that regulates private property, 
     regardless of whether the communication is initiated by an 
     agency or is undertaken in response to an invitation by the 
     State or local authority;
       (VI) the placement of a military facility or a military 
     activity involving the use of solely Federal property; and
       (VII) any military or foreign affairs function (including a 
     procurement function under a military or foreign affairs 
     function), but not including the civil works program of the 
     Army Corps of Engineers; and
       (ii) in a case in which there is an immediate threat to 
     health or safety that constitutes an emergency requiring 
     immediate response or the issuance of a regulation pursuant 
     to section 553(b)(B) of title 5, United States Code, the 
     taking impact analysis may be completed after the emergency 
     action is carried out or the regulation is published.
       (2) Content of analysis.--A private property taking impact 
     analysis shall be a written statement that includes--
       (A) the specific purpose of the policy, regulation, 
     proposal, recommendation, or related agency action;
       (B) an assessment of the likelihood that a taking of 
     private property will occur under such policy, regulation, 
     proposal, recommendation, or related agency action;
       (C) an evaluation of whether such policy, regulation, 
     proposal, recommendation, or related agency action is likely 
     to require compensation to private property owners;
       (D) alternatives to the policy, regulation, proposal, 
     recommendation, or related agency action that would achieve 
     the intended purposes of the agency action and lessen the 
     likelihood that a taking of private property will occur; and
       (E) an estimate of the potential liability of the Federal 
     Government if the Government is required to compensate a 
     private property owner.
       (3) Submission to omb.--Each agency shall provide an 
     analysis required by this section as part of any submission 
     otherwise required to be made to the Office of Management and 
     Budget in conjunction with the proposed regulation.
       (f) Guidance and Reporting Requirements.--
       (1) Guidance.--The Attorney General shall provide legal 
     guidance in a timely manner, in response to a request by an 
     agency, to assist the agency in complying with this section.
       (2) Reporting.--Not later than 1 year after the date of 
     enactment of this Act and at the end of each 1-year period 
     thereafter, each agency shall provide a report to the 
     Director of the Office of Management and Budget and the 
     Attorney General identifying each agency action that has 
     resulted in the preparation of a taking impact analysis, the 
     filing of a taking claim, or an award of compensation 
     pursuant to the Just Compensation Clause of the Fifth 
     Amendment to the Constitution. The Director of the Office of 
     Management and Budget and the Attorney General shall publish 
     in the Federal Register, on an annual basis, a compilation of 
     the reports of all agencies made pursuant to this paragraph.
       (f) Rules of Construction.--Nothing in this section shall 
     be construed to--
       (1) limit any right or remedy, or bar any claim of any 
     person relating to such person's property under any other 
     law, including claims made under section 1346 or 1402 of 
     title 28, United States Code, or chapter 91 of title 28, 
     United States Code; or
       (2) constitute a conclusive determination of the value of 
     any property for purposes of an appraisal for the acquisition 
     of property, or for the determination of damages.
       (g) Statute of Limitations.--No action may be filed in a 
     court of the United States to enforce the provisions of this 
     section on or after the date occurring 6 years after the date 
     of the submission of the certification of the applicable 
     private property taking impact analysis with the Attorney 
     General.

  Mr. DOLE. Mr. President, I might just say a word before we adopt the 
amendment.
  I thank the Senator from Arkansas. I think, as he properly indicated, 
this is a matter that is going to be before the Senate. We have not had 
the last word on it, but I think we have made some improvements.
  I thank not only the Senator from Arkansas, but the managers of the 
bill and others on both sides who have an interest in this particular 
legislation.
  I think we should go ahead and act on the amendment, and then I would 
like to make a further statement before we go out.
  The PRESIDING OFFICER. For clarification, the modification by the 
Republican leader is to the second degree amendment.
  Mr. CHAFEE. Mr. President, I am not in favor of either of these 
amendments.
  Mr. MURKOWSKI. Mr. President, I rise today to lend the strongest 
possible support to the amendment offered by the minority leader, 
Senator Dole.
  There is no quarreling with the clear words of the fifth amendment to 
the Constitution: ``Nor shall private property be taken for public use 
without just compensation.'' The debate has been over precisely when a 
property has been taken, and thus when to provide just compensation.
  It is one thing to recognize when the Federal Government takes a 
property by appropriation or physical possession. If what a Government 
policy, regulation, proposal, recommendation, or other agency action 
does is to restrict one's use of property, there is a real possibility 
of a taking by regulation. This, it is quite another thing to recognize 
when there has been a regulatory taking.
  Since 1922 the courts have been struggling with the concept of 
regulatory taking. In the scattering of cases over the last 50 years, 
the standards for a regulatory taking have always been ad hoc.
  Since the 1970s, one decision after another has come from the courts 
on this issue, creating an historic legal framework for the courts to 
decide future cases within. But what is missing is participation by the 
agencies in evaluating just when they have effected a taking, and how 
much it will cost.
  The National Park Service of the United States is the envy of the 
world. It is widely emulated in other countries. What we don't talk 
about very much, and what we don't want the rest of the world to 
emulate is the way we deal with private property contained as 
inholdings within the parks.
  Over the years we have encumbered millions of acres of private 
property within the designated units of the National Park Service.
  The record is replete with anecdotal stories of the heavy handed 
actions taken by the Government as they constrain and control the 
otherwise lawful actions of the private property owners that have 
through no fault of their own become included within park service 
units.
  This country is founded on the premise that private property rights 
are valuable, and should be respected. Yet what we have witnessed in 
the last few years is the tyranny of the Federal Government against the 
private property owner in the name of wetlands rules, endangered 
species act regulations, and dozens of other Federal policies, 
proposals, recommendations, and other agency actions.
  Over the past years thousands upon thousands of individuals--private 
property owners--have had their rights diminished by well-intentioned 
bureaucrats who have had no idea of what wrath their rules have 
wrought. Nor did they have any concept, idea, or thought about the cost 
of the unfunded liability the private property would need to bear.
  It is time for a little truth in advertising Mr. President--people 
need to know how our laws and subsequent rules and regulations are 
going to impact their basic constitutional rights.
  Under this amendment, the Federal Government would be required to 
analyze the impact of their programs on private property rights. Then, 
Mr. President, we will have a measure of the effect of agency actions 
on the use and value of private property. The people will know, and we 
will have a clear statement of whether the owner is entitled to 
compensation.
  I urge my colleagues to support the amendment.
  Mr. McCONNELL. Mr. President, I would like to commend Senator Dole 
and Senator Heflin for offering this amendment to the Safe Drinking 
Water Act Amendments of 1994. I rise in support of this amendment.
  It is time for Federal regulators to obey the Bill of Rights. Under 
the fifth amendment, the rights of property owners are protected from 
the Federal Government. Unfortunately, those who have sworn to uphold 
our Constitution are not always as vigilant as they should be.
  As I understand this amendment, Federal agencies are required to 
conduct a taking impact assessment prior to promulgating any agency 
policy, regulation or guideline, or when recommending legislative 
proposals to Congress. The assessment must consider the effect of the 
agency action, the cost of the action to the Federal Government, and 
the reduction in value to private property owners. The agency would 
also be required to consider alternatives to taking private property.
  The legality of the Government disallowing certain legitimate and 
productive uses of land, yet still requiring taxes to be paid on it, 
could certainly be questioned. The amendment before us today will 
require agencies to consider alternatives to taking private property, 
and to take into consideration what their actions may have on the use 
and ownership of private property.
  Senator Bumpers' substitute does not provide for the opportunity for 
public availability or review nor does it provide for judicial review 
of agency analysis.
  Mr. President, I urge my colleagues to oppose the Bumpers amendment 
and support the underlying Dole amendment.
  Mr. LIEBERMAN. Mr. President, I cannot support the so-called takings 
amendment offered by Senator Dole. If all it did was make sure that 
agencies proposing new regulations ascertained in advance whether those 
regulations constituted a taking of private property for public use, 
and published that analysis in the Federal Register, I would not oppose 
it. But this amendment is not just about protecting the public purse 
against potential takings claims. It goes far beyond any reasonable 
construction of the fifth amendment's takings clause and attempts to 
erect a system in which maintaining property values--not just avoiding 
takings--is paramount to all other public interests, including health 
and safety. At a time when we are all trying to streamline Government, 
to make Government more productive and more efficient and more focused 
on results, it would create boatloads of new paperwork, much of which 
is unnecessary and excessive. This amendment is neither good law, good 
policy nor good government.
  Mr. President, private property rights are an important foundation of 
our constitutional and economic system. The right of American citizens 
to be protected from having their property taken by the Government 
without just compensation is central to our governmental system. But 
one of the hallmarks of our system of government is that all rights are 
balanced and none are absolute. Even the freedom to speak, which is the 
cornerstone of democracy, has its limits. I respectfully suggest that 
this amendment takes the tried and true and much revered, much 
appreciated, much valued, much protected, right of private property and 
would use that right as a theory to obliterate a host of other rights 
we have such as the right to due process, the right to be safe, 
healthy, and free, and the right to be protected by a government of 
laws on which we must depend because we cannot always protect 
ourselves.
  Let's look at exactly what this bill would require. Before an agency 
could issue any policy, regulation, proposal, recommendation--including 
any recommendation or report on proposal for legislation--or take any 
related agency action which could conceivably result in a taking or a 
diminution of use or value of private property, the agency would have 
to certify to the Attorney General that the agency has conducted a so-
called private property taking impact analysis. The so-called takings 
impact analysis must contain a statement of the specific purpose of the 
proposed action, an assessment of whether a taking would occur, an 
evaluation of the effect of the action on the use or value of private 
property, and possible alternatives that would lessen the adverse 
effects on the use or value of private property. These analyses would 
not only be required for new actions, but would have to be repeated 
every 5 years.
  So what's wrong with this amendment? Let's start at the top. First, 
it applies to just about every action an agency could take, regardless 
of whether it was simply floating a trial proposal for comment or was 
actually on the doorstep of promulgating final regulations. Does this 
mean that an agency cannot even put out an advance notice of proposed 
rulemaking, the most preliminary step in formulating new rules, without 
engaging in this lengthy and complicated analysis? Can the 
Administrator of the Environmental Protection Agency give a speech 
saying that the EPA is considering whether a new approach or policy 
might be warranted without having completed the taking impact analysis? 
The amendment would even require an agency to complete such an analysis 
before it could report on proposed legislation. It sounds to me like a 
takings impact analysis would have to be completed before an agency 
could give testimony before a congressional committee.
  Second, the so-called takings impact analysis is not even limited to 
an evaluation of whether a taking would occur. Instead, this amendment 
reaches far beyond any constitutional definition of a taking and 
requires an assessment of the extent to which any contemplated action 
would result in any diminution of property values. While the effect on 
property values certainly should be considered as part of any overall 
assessment of the costs and benefits of a regulatory action, assessment 
of the effect on property values for actions that are not takings is 
simply not a proper part of a taking impact analysis.
  Third, this amendment is truly unprecedented in scope. Even the 
Takings Executive order issued by President Reagan did not go this far. 
A taking is a concept defined by the courts interpreting the fifth 
amendment. It has never been interpreted to include a diminution in 
property value. Indeed, in its most recent takings decision, the 
Supreme Court concluded that a regulatory action might categorically be 
a taking only if the owner was denied all economically viable uses of 
the property.

  Fourth, what is meant by a diminution in value? Many actions can 
diminish the value or use of one property interest but increase the 
value or use of others. For example, if night airport landings are 
restricted at National Airport, this diminishes the use or value of the 
airport, but it increases the value of property in the neighborhood of 
the airport. Similarly, if the FAA were to issue a regulation 
prohibiting high-rise buildings near the flight path of an airport, 
this would increase or maintain usability of the airport, but diminish 
the use or value of affected properties. This amendment appears to ask 
for an evaluation of the effect on each property, not just property 
interests taken as a whole.
  Fifth, this is largely a duplicative paperwork exercise. Under the 
President's Regulatory Management Executive order, executive branch 
agencies are required to assess all costs and benefits of available 
regulatory alternatives. The diminution of property values is clearly a 
cost that would be required to be considered. For any significant 
regulatory action, one with an impact of over $100 million annually or 
with a material effect on the economy, a sector of the economy, 
productivity, competition, or jobs, the agency's assessment of the 
costs must be submitted to the Office of Management and Budget for 
review. With respect to these proposed regulations, the analysis 
required by this amendment is duplicative.
  Sixth, this amendment even appears to prevent emergency regulations, 
such as might be imposed if we found ourselves suddenly and totally at 
war, from being issued without a takings impact analysis.
  Mr. President, it is important to remember that the takings clause of 
the fifth amendment is self-executing. Individuals who believe the 
Government has taken their property without just compensation have the 
right to seek restitution in the U.S. Claims Court. The courts have 
defined, through the case law, what constitutes a taking of private 
property for public use. This bill does not change any of that--nor 
should it. The courts are much better situated that we are to examine 
the circumstances surrounding each alleged taking to determine whether 
one has actually occurred. Indeed, the fact that some courts have found 
that some Government regulations may result in a taking shows that the 
court system is working.
  What this amendment does is simply impose a huge and unworkable 
paperwork burden on the Federal Government. The analysis this amendment 
calls for is completely out of proportion to the laudable goal of 
identifying potential takings in advance, so that policymakers can 
weigh those costs in their decisions. This amendment does not 
streamline government or make it more efficient. It is not consistent 
with any notion of reinventing government.
  The proponents of the amendment have not made the case for the 
aggressive legislative intervention that this amendment contemplates. 
It is important to remember what is at stake here. This amendment would 
dramatically limit our Government's capacity to protect us, our health, 
and our safety.
  For these reasons, Mr. President, I will oppose the Dole amendment. I 
urge my colleagues to do likewise.
  Mr. LEAHY. Mr. President, I would like to ask the Chairman a few 
questions about the Bumpers substitute to the Dole amendment.
  The Constitution, in the fifth amendment, now requires that if the 
Government takes property, compensation must be provided. Does this 
amendment change the constitutional understanding of the concept of 
takings?
  Mr. BAUCUS. This substitute does not change the present 
constitutional provision on takings nor expand the concept by 
legislative action.
  Mr. LEAHY. Beyond the obligation which exists to respect private 
property and to avoid takings in regulatory action where possible, does 
this legislation require that the agency head take any action beyond 
the analyses and reporting requirements in subsections (e) and (f)(2)?
  Mr. BAUCUS. No, it does not.
  Mr. CHAFEE. I rise to express my views on the second degree amendment 
offered by Senator Bumpers. I have some significant concerns that this 
second degree, like the Dole amendment, will result in paralysis by 
analysis. While the Bumpers second degree is a substantial improvement 
over the Dole amendment, I question whether this type of amendment is 
necessary at all.
  First, let me express my general concerns about this entire approach. 
While the scope of the Bumpers amendment is much more reasonable than 
the original amendment, it still would require that a fairly extensive 
takings analysis be completed whenever any Federal action was likely to 
result in a taking. This would be a costly requirement and divert 
significant Federal resources.
  I question whether this amendment is necessary when the fifth 
amendment fully protects property rights. It is proper for the courts, 
not the agencies, to judge when a taking has occurred.
  I am also concerned that the resources for performing these takings 
analyses will come from the scarce resources available to protect the 
public health, environment and welfare. The second degree would improve 
this situation by including reasonable exceptions and by streamlining 
the required analysis, however, it will cost money that we simply do 
not have.
  On the plus side, the second degree amendment would not require, as 
in the Dole amendment, agencies submit a certification regarding their 
takings analyses to the Attorney General. This requirement provides 
little protection for property owners while raising the specter of 
unnecessary bureaucratic delays for important Federal regulations. So, 
striking that requirement is an improvement.
  In addition, the second degree amendment exempts a limited list of 
Federal actions relating to foreign policy, military matters, law 
enforcement and study and planning activities. These actions would 
rarely, if ever, effect a taking under the fifth amendment. Further, if 
a number of these activities were delayed due to the requirement for a 
takings impact assessment, United States interests would be seriously 
compromised. So again, adding these exemptions is an improvement.
  Consistent with current Supreme Court takings jurisprudence and 
common sense, the second degree would require a takings impact 
assessment only for those actions likely to affect a taking, and not 
for actions which may in some way diminish the use or value of 
property. This will avoid redefining constitutional takings law, and 
reinforce the primary purpose of the legislation--to enhance 
constitutional protection of private property rights. This change will 
also ensure that the Government can continue to fulfill its other 
responsibilities to protect the public health, safety and environment.
  Unlike the Dole amendment, the second degree would not make these 
internal agency analyses public. Instead, agencies would be required to 
provide the analyses to the Office of Management and Budget. Making 
these documents public would encourage takings litigation at the 
expense of the taxpayer. The second degree amendment would avoid the 
prospect of providing a bonanza for takings lawyers rather than 
protecting property rights.
  Mr. President. I continue to believe that the fifth amendment is the 
best protection a property owner could have. I know that Senator Dole 
and others are concerned that Federal agencies do not always heed the 
words of the Constitution.
  But, when that happens, when agency action crosses the line of 
acceptable Government regulation and results in a taking of private 
property, the supreme law of the land already requires compensation. We 
do not need new legislation to improve upon the Constitution. For that 
reason, Mr. President, I am opposed to the Bumpers amendment.
   We are going to have a voice vote and I would like to have it noted 
that I voted no.
  The PRESIDING OFFICER. The record will so indicate.
  Is there further debate on the second degree amendment. If not, the 
question is on agreeing to the amendment.
  The amendment (No. 1735), as modified, was agreed to.
  Mr. BUMPERS. Mr. President, I move to reconsider the vote by which 
the amendment was agreed to.
  Mr. DOLE. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. DOLE. Could I speak on the amendment now? As I understand, you 
may want to get the other agreement first.
  I yield the floor temporarily.
  Mr. BAUCUS. Mr. President I ask unanimous consent that the vote on 
final passage of S. 2019 occur without any intervening action or debate 
at 10:30 a.m. tomorrow morning.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BAUCUS. Mr. President, I also ask for the yeas and nays on final 
passage.
  The PRESIDING OFFICER. Is there a sufficient second. There appears to 
be a sufficient second.
  The yeas and nays were ordered.
  Mr. DOLE. Does the Senator from Arkansas want to speak further on the 
amendment, as modified?
  Mr. BUMPERS. No.
  Mr. DOLE. I want to say a few words and then I would ask that the 
Senator from Texas, Senator Gramm, be allowed to speak for 10 minutes.
  Is there objection to that?
  Mr. BAUCUS. Does the Senator mean now?
  Mr. DOLE. I am going to speak now.
  Mr. BAUCUS. For about how long?
  Mr. DOLE. I think about 5 minutes. Then the Senator from Texas would 
like to speak for about 5 or 10 minutes.
  Mr. BAUCUS. Before we get to that, I would just like to thank 
Senators who have been involved and worked very hard to pass this bill.
  Senator Chafee, who has worked long and hard, through thick and thin; 
Senators Hatfield and Kerrey have done a tremendous job in offering 
amendments to help put this bill together; Senator Warner, who helped 
in broadening support for source water protection, along with Senator 
Conrad; and Senator Johnston, for the cooperative way he approached our 
discussions to draft a better amendment on risk.
  Tremendous thanks to Administrator Browner, Bob Perciasepe and Jim 
Elder for their helpful assistance at EPA. And Martha Bennett and Doug 
Pahl of Senator Hatfield's office for the long, hard, many, many hours. 
The same for Diane Hill, a fellow Montanan, I might add, who works for 
Senator Kerrey, from Nebraska. Ann Loomis, with Senator Warner; Jerry 
Reynoldson, with Senator Reid; Barbara Cairns, with Senator Lieberman.
  We think we work long hours, Mr. President, but the names of the 
people I have just mentioned I think have worked even longer hours than 
we have.
  From our committee staff, Jimmie Powell, Steve Shimberg, and Lori 
Williams. In addition, Jeff Peterson; Jo-Ellen Darcy; Bob Irvin; John 
Reeder, on loan from EPA; Karen Ilardo, Mike Evans, Tom Sliter, and 
Peter Scher. I give my heartfelt thanks to all of them.
  I just thank them for their hard work.
  Mr. President, also in behalf of the majority leader, I will announce 
there will be no more votes tonight.
  I thank the Senator for yielding.
  Mr. DOLE. Mr. President, time and again, I have heard from the people 
all across America that Congress must do more to stop the tide of 
infringement on private property rights. I believe we have all heard 
this message. So, this amendment is a small first step toward ensuring 
that government mandates and government bureaucrats do not continue to 
run over individual citizens and individual rights.
  It is time for Congress to send a very clear signal to the people 
affected by this and other legislation. The message is that, unless 
absolutely necessary, the Federal Government should not be in the 
business of the whole or partial taking of private property.
  This amendment would send that message. The amendment is very simple. 
It would require Federal agencies to conduct a takings impact 
assessment when promulgating any agency policy, regulation or 
guideline, or recommending legislative proposals to Congress. This bill 
does not stop legitimate regulatory processes, and it only applies to 
actions which could result in a taking.
  The assessment required by this amendment must consider the effect of 
the agency action, the cost of the action to the Federal Government, 
and must explore alternatives to taking private property.
  The rights of property owners are supposed to be protected from the 
Federal Government under the 5th amendment and from State Governments 
by the 14th amendment. Unfortunately, those who have sworn to uphold 
our constitution are not always as vigilant as they need to be. Let's 
face it, whether we like it or not, there are multiple takings each 
year by the Federal Government.
  I have several examples of court cases against the Federal 
Government, where a taking of private property was involved. I would 
like to cite just a few of these cases.
  Whitney Benefits, Inc., and Peter Kiewit Sons' versus the United 
States. The plaintiffs purchased a large tract of minable coal. The 
Government later enacted the Surface Mining Control and Reclamation 
Act. The property owner was prevented, by the application of this law 
to his property, to realize the benefit of his investment. The Court of 
Federal Claims found that this was a taking under the fifth amendment 
of the U.S. Constitution, and awarded the plaintiff the sum of over $62 
million, plus interest compounded annually. Adding in interest, the 
total amount owed by the United States is $300 million. 1902 Atlantic, 
Ltd. versus United States in 1981, the plaintiff applied for a permit 
to fill a hole in the ground that had been dug to provide dirt for a 
nearby overpass. Over the years, the hole had accumulated water. 
Moreover, the hole had become a local dumping site for trash and 
refuse. One child had been killed as a result of playing in the hole. 
The owners wanted to fill the hole, and build an industrial park. 
Neighbors were ecstatic because it would clean up an eyesore, cure a 
safety hazard, and increase the tax base. The Government refused the 
wetlands permit, and only after 14 years of litigation finally agreed 
to compensate the owner for a taking.

  It is also important to note that a taking can occur even though 
title to the property remains with the original owner and the 
Government has only placed restrictions on its use. Fortunately, courts 
have recognized that these partial takings are subject to just 
compensation.
  Some will question why this amendment is necessary if the courts are 
doing such a good job. Unfortunately, challenging the Federal 
Government in court is out of the financial reach of most Americans. 
The Government, backed by the seemingly limitless resources of the U.S. 
Justice Department, usually outlasts by outspending, while the poor 
citizen pays for the lawyers for both sides through fees and taxes.
  This is nothing more than a companion requirement that major 
Government undertakings be accompanied by a takings impact statement. 
These efforts are complimentary, not mutually exclusive.
  So, let us be clear. A vote for this amendment is a vote for taking 
the first step toward putting the people back in charge of their land 
and back in the loop of what we are doing as their elected 
representatives. I can assure my colleagues that there is great 
interest in this matter by your constituents and by a large group of 
organizations who will be letting your constituents know exactly where 
we all stand on this matter.
  This is a good-Government amendment. It brings Government into the 
sunshine. If you support the National Environmental Policy Act, if you 
support the Freedom of Information Act, if you support the 
Administrative Procedures Act, then you should support the Private 
Property Rights Act of 1994.
  Mr. President, I ask my colleagues to ask their small business men 
and women, their farmers, their ranchers, those who believe in the 
private property rights contained in our Constitution, what they think 
about this amendment. When they do, I am certain they will agree that 
we should adopt this amendment.
  Mr. MURKOWSKI. The Senators from Alaska would like to clarify the 
application in Alaska of several provisions of the Baucus-Chafee-
Hatfield-Kerrey amendment that was adopted on Thursday, May 12, 1994.
  The bill requires the principal operator of each community and 
noncommunity water system serving nontransient populations and any 
laboratory conducting tests to be certified as proficient. The Kerrey-
Hatfield amendment also requires the Administrator to publish 
guidelines developed in consultation with the States describing minimum 
standards for certification of the proficiency of operators and other 
appropriate personnel.
  It is important that these guidelines take into account the 
availability of certified operators in Alaska. Systems that cannot 
afford to train staff or hire certified operators should be able to 
meet requirements by having a part-time certified operator through the 
circuit rider program. In the view of the chairman, would a circuit 
rider operation and maintenance program be a viable substitute for 
providing a certified operator in each village?
  Mr. BAUCUS. In my view, it would. In fact, the circuit rider program 
is a viable option for small, rural communities.
  Mr. MURKOWSKI. That is fortunate because only 6 percent--14 of 
Alaska's 225 plus villages have an operator who has received a level of 
training and certification beyond that of an operator-in-training 
[OIT]. Obtaining an OIT certificate requires either 3 months of 
experience or successfully completing a 4-day couse and passing a 
certification exam. It is my understanding that this is a very basic 
entry level certification. The combination of the circuit rider program 
and the operator-in-training program should be sufficient for Alaska to 
meet any guidelines for certification.
  Mr. BAUCUS. Yes; we recognize that the State of Alaska, like other 
rural States, has numerous small systems and that it would be 
impractical to expect each system to have a certified operator.
  Mr. STEVENS. The Chairman is correct. Statistics demonstrate that 
Alaska is a small system State--95 percent of Alaska's community 
systems serve less than 3,300 people, 93 percent serve less than 1,000 
people, and 84 percent serve less than 500 people.
  As a small system State, Alaska is also in need of special 
consideration under the system viability provisions of the bill. The 
junior Senator from Alaska and I considered offering an amendment 
clarifying the need for special consideration for the immense viability 
challenges due to climate, remoteness, and inadequate drinking water 
supplies in some parts of our State. However, in discussions we were 
assured that the Administrator, when issuing guidance on viability, 
would address Alaska's viability challenges.

  Many small systems in Alaska lack the technical, financial, and 
managerial capability to consistently comply with regulations. 
Different approaches may be needed for these small systems.
  Alaska's remote maintenance worker program provides skilled 
assistance to small communities and conduct 1-on-1 training for local 
operators. Each remote maintenance worker position provides services to 
10 to 15 villages. There have been no system failures since 1989 in 
areas served by remote maintenance workers. This program is 
supplemented by a remote systems monitoring program. This allows 
systems of several villages to be monitored in one central location via 
telephone.
  Mr. CHAFEE. I thank the Senator from Alaska for informing the Senate 
of the special rural programs for water systems in Alaska. The remote 
maintenance worker program and remote systems monitoring program sound 
like the right approach to ensuring viable of rural water systems. The 
committee has considered utilization of such programs. We intended that 
such programs will enable small, rural communities like Alaska villages 
to attain viability.
  Mr. MURKOWSKI. I might add that many Alaska rural communities do not 
currently have governments that can afford to maintain viable systems. 
Although these systems would be considered by most as nonviable--unable 
to financially meet EPA monitoring and treatment requirements--water 
from these systems provides a higher degree of safe water than the 
impractical or impossible alternatives of individual water sources or 
gathering water from surface ponds, rivers, or snow melt.
  Mr. STEVENS. I agree with the statements of my colleague from Alaska. 
The State of Alaska should be given latitude to develop its own 
criteria for determining system viability. The traditional concept of 
system viability among the South 48 States may not fit the unique 
circumstances in Alaska. Physical consolidation of many of Alaska's 
systems, is impossible in many areas due to isolated, remote locations, 
cultural differences, and harsh environmental factors.
  Mr. BAUCUS. We are well aware of the deplorable problems that the 
rural communities of Alaska face. It is the intention of the managers 
of the bill that these conditions be considered in the Administrator's 
guidance under the viability provisions of the bill and the viability 
considerations for the State of Alaska generally. As the Senator 
indicated, however, viability does not always require physical 
consolidation. There are innovative programs, such as those being 
developed in Alaska, which can help a system become viable without 
physical consolidation.
  Mr. CHAFEE. Yes; it is important that we recognize that Alaska is 
dealing with a unique set of circumstances and that we can not expect 
third world sanitation conditions in some villages to change overnight.
  Mr. McCAIN. Mr. President, I would like to ask the chairman a 
question regarding metering for water conservation purposes.
  Mr. BAUCUS. I would be pleased to respond to the Senator.
  Mr. McCAIN Because of arid conditions in the desert southwest, we 
muct be careful how our water resources are utilized. State and local 
governments have responsibly passed laws and ordinances which promote 
water conservation. The Arizona State Legislature recently passed a law 
which encourages mobile home parks to submeter and charge for water use 
to encourage conservation.
  Is it the intent of the committee to impose another level of 
regulatory oversight in this case?
  Mr. BAUCUS. No, Mr. President, it is not the intention of this 
Senator or the committee to regulate these systems differently from 
nonsubmetered systems and inhibit the ability of the States to 
encourage water conservation. The use of a water meter for the purpose 
of establishing charges at a trailer or at any point in a distribution 
system does not create a separate water system
  Mr. McCAIN. Mr. President, I thank the chairman for his courtesy to 
my inquiry.
  The PRESIDING OFFICER (Mrs. Feinstein). The question is on the 
amendment.
  The underlying first-degree amendment is the question.
  Mr. BAUCUS. Madam President, I urge the Senate adopt the underlying 
amendment.
  Several Senators addressed the Chair.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. BAUCUS. Might I make a short statement?
  Mr. GRAMM. I yield the floor.
  Mr. BAUCUS. I thank the Senator from Texas.
  The PRESIDING OFFICER. The Senator from Montana is recognized.
  Mr. BAUCUS. Madam President, tomorrow we are going to vote for final 
passage on this bill. I have already said plenty about the merits and I 
have said plenty about the intricacies of the Safe Drinking Water Act, 
about variances, about MCLG's, disinfection byproducts, small system 
BAT, et cetera. I will spare my colleagues and staff a recap about 
that. But I would like to make a few basic simple points.
  We are, I hope, about to pass the new Safe Drinking Water Act. That 
is important. The bill will protect public health so every American can 
turn on the faucet and pour a glass of water without worrying about 
getting sick. The bill also reduces cost to public water systems, 
especially small public water systems, struggling to provide important 
service to the neighbors.
  But, in addition to passing the new Safe Drinking Water Act, we are 
also about to do something even more important. We are about to 
demonstrate that we in this Chamber can work together constructively to 
improve our environmental laws. Maybe this does not sound like a big 
deal, but I think it is.
  For years now, the country and this Chamber has been paralyzed by 
gridlock over environmental policy. For years now, there has been in 
essence a religious war between the business community and 
environmental community. One side argues that environmental protection 
undermines the economy. The other side argues that economic growth 
destroys the environment. It has been characterized as a zero sum 
game--gridlock.
  This attitude has spread to some of our other debate here on the 
floor. It seemed like you are either for the environment or for the 
economy, for the environment or for private property, for the 
environment or for sound science-based analysis.
  This bill is a striking break from that pattern. It is bipartisan, 
reported by the committee by a vote of 17 to zero. On the Senate floor 
we worked with a coalition led by Senators Kerry and Hatfield. Through 
it all, we worked to achieve common objectives: To promote the 
environment and reduce burdensome regulations on those who operate 
drinking water systems. After all, the American people want both. They 
want to protect their water and want to reduce burdensome regulations.
  Madam President, I think they also want us to take a practical, 
commonsense approach to our environmental problems. That is what this 
bill does.
  Madam President, we have further tough issues ahead of us: the Clean 
Water Act, Superfund, Endangered Species Act. But this bill, I think, 
can serve as a model. We do not have to pit the environment against the 
economy. Rather, if we work together, listen to legitimate arguments on 
both sides and take creative approaches, work very hard, long hours, 
roll up our sleeves, we can write environmental laws that protect the 
environment and promote economic growth.
  I look forward to working with all my colleagues to achieve this goal 
as we take up the Clean Water Act, Superfund, Endangered Species Act.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. GRAMM. Madam President, I want to speak on the amendment offered 
by Senator Dole on my behalf and on behalf of other cosponsors.
  Mr. GRAMM. Madam President, the fifth amendment of the Constitution 
concludes with the following words: ``Nor shall private property be 
taken for public use without just compensation.''
  The Founding Fathers understood that private property was the 
foundation of liberty. The Founding Fathers understood that freedom of 
speech was equally as important as economic security and that both 
deserved constitutional protection.
  So when the Founders wrote the Constitution, they meticulously 
protected not just our political rights, but our economic rights. 
Nowhere is that clearer than the protection for private property. I 
think, Madam President, that the founders would be stunned at the 
assault on private property which has occurred in America since the 
1930's. In fact, it seems to me that the courts believe that any two 
consenting adults can engage in any activity with constitutional 
protection other than owning and possessing private property, engaging 
in commerce, and creating jobs. When people engage in those activities, 
they stand naked before the growing Federal assault on their 
constitutionally protected private property rights. I do not believe 
the Founding Fathers intended that to be so.
  If you own 100 acres of land today and the local government comes in 
and condemns 10 acres to build a road, no one disputes the fact that 
they have to pay you for those 10 acres. However, if you own 100 acres 
and the Government comes in and says you have the red-cockaded 
woodpecker nesting in one corner of your land where you planted pine 
trees to harvest, to earn money for you, but now the Federal Government 
decided that since this endangers the nesting habitat of the red-
cockaded woodpecker, you cannot cut these 10 acres.
  Madam President, currently, there is a dispute at all levels in the 
courts and before the Supreme Court as to whether that is a taking of 
private property or not. Unfortunately very few Americans have the 
resources to fight the Federal Government in Federal court. As a 
result, takings are occurring all over the country in the name of 
regulatory takings, and it does not appear that private property is 
protected.
  I believe that James Madison would have no doubt, were he here today, 
that when the Founding Fathers wrote the Constitution they intended to 
protect property, and they intended to require that people are provided 
compensation when their property is taken, whether they lose it 
physically or whether they simply lose its value in use or its value in 
exchange.
  The amendment that has been offered by Senator Dole, by me, and by 
others tries to force the Federal bureaucracy to account for takings, 
to respect private property, and to undertake a study of the impact 
that Federal actions have on private property.
  What we have seen today is the adoption of a compromise. I am not 
sure the compromise goes far enough, but it is a step in the right 
direction. I want to assure my colleagues that this issue is not going 
to go away; that before this Congress ends, at least this first step is 
going to be taken and is going to become the law of the land.
  But I also want to say, in conclusion, that I do not think this first 
step is far enough. I want to do with private property what America did 
in the 1950's and the 1960's with civil rights. What we did with civil 
rights is write into law what we meant by the 14th amendment, and we 
guaranteed that 14th amendment rights were going to be protected. I 
believe that the protection provided by the Constitution in regards to 
private property rights is as important as the protection provided for 
civil rights. I support both.
  I want to ultimately write into law that a regulatory taking that 
diminishes the value of land in use or in exchange is a taking. 
Therefore, when Government through its regulatory action takes away 
people's property or the use of their property, Government has to 
compensate.
  There is going to be opposition to this, Madam President, because 
there are people who want to undertake activities that seize other 
people's property without paying for it.
  My view is we cannot have rational decisionmaking unless we pay 
people for things we take away from them. So not only is it the right 
thing to do, not only is it the constitutional thing to do, but I think 
it is the rational thing to do as well. And my prediction is, when we 
have to compensate people for taking their property, we are going to 
take less of it, and I think the people will rejoice.
  So I want to congratulate Senator Dole for his leadership. I am happy 
to be a sponsor of this amendment. I think it is an important first, 
modest step, but I believe the American people are ready to fully 
reaffirm private property, to fully reaffirm the fifth amendment. I 
believe when we do that, we will preserve economic freedom without 
which political freedom cannot be sustained.
  I yield the floor.
  The PRESIDING OFFICER. Without objection, amendment 1715 is 
withdrawn.
  So the amendment (No. 1715) was withdrawn.
  The PRESIDING OFFICER. Who seeks recognition?
  Mrs. HUTCHISON addressed the Chair.
  The PRESIDING OFFICER. The Senator from Texas.
  Mrs. HUTCHISON. Madam President, I would like to say that I really 
appreciate what Senator Bumpers has done in accepting Senator Dole's 
modification to the private property rights amendment. I fully support 
the efforts to clarify how important private property rights are in 
this country.
  I have been watching, slowly but surely, private property rights take 
a back seat to environmental regulations. The EPA regulations often 
have the effect of taking private property because they render property 
useless--whether it is undeveloped or developed land.
  This issue is very important to America. The right of protection of 
private property is in our Constitution. It built this country. Family 
farms and businesses are the wealth of generations of work. It is 
important that we protect this private property. I appreciate the 
efforts of Senator Dole and Senator Bumpers to assure that no 
bureaucrat can take private property without a takings impact 
assessment so that we know how much the taking is going to cost and 
that the private property owner will be properly compensated if the 
Government takes the property by any means.
  I am pleased that Senator Dole's legislation will be part of the 
bill. I think it is very important that as we go into this next year 
that all of the bills that we take up should have as a primary goal 
keeping the private property rights protection of our Constitution. The 
taking of land by regulation is every bit as much a taking of land as 
if the Government took the title to that property, because people are 
not going to be able to afford to keep undeveloped land if they have so 
many assessments and so many regulations and so many ways that they 
cannot use it for its ultimate purpose. That is a taking, Madam 
President, that we cannot permit.
  I thank you, Madam President. I am pleased that we will be able to 
make sure that in this case, private property rights are observed. I 
yield the floor.
  Mrs. KASSEBAUM. Madam President, I support this amendment, the 
Private Property Rights Act of 1994.
  Private property rights are a foundation of our democratic, free-
market system, and they always have been. We know from history that 
Thomas Jefferson initially proposed that the Declaration of 
Independence should proclaim the rights of ``life, liberty, and 
property.'' Without private property there can be no contract, no 
exchange, no personal economic security.
  In our time, countries of the former communist bloc have reached the 
same conclusion: Private ownership and management of a nation's wealth 
are fundamental to national prosperity. Put another way, private 
property is a protector of the general welfare.
  That is why our Constitution prohibits the Government from taking 
private property without adequate compensation. The Supreme Court has 
held that excessively burdensome regulation may trigger this 
constitutional protection. The task of defining the constitutional 
limits on so-called regulatory takings should remain with the Court--
and, under this legislation, it does.
  This bill does not expand the fifth amendment right to property. 
Contrary to the chicken-little outcry of some opponents, the bill will 
not preclude Federal health, safety, or environmental regulation. To 
the extent that those regulations constitute takings, they already are 
prohibited by the Constitution.
  The bill does not change the substantive rules, but it ensures that 
Federal regulators play by them. It establishes an up-front procedure--
a takings impact assessment--to ensure that individual regulations 
square with the fifth amendment before they become law.
  Today, our citizens too often are presented with a bureaucratic fait 
accompli. Their property may be unconstitutionally taken by regulation, 
but their rights can be vindicated only through costly, time-consuming 
lawsuits. For many, that simply is not an option. I believe the Federal 
Government has an affirmative obligation to guarantee the 
constitutional rights of its citizens. It is not enough merely to react 
when challenged in court.
  Some have argued that the up-front constitutional analysis proposed 
by this bill will be costly. I share a deep concern about cost, but in 
this context I find that argument specious. Is complying with the 
Constitution really too costly? Do we disregard our citizens' rights to 
free speech, to free exercise of religion, or to freedom from 
unreasonable search and seizure because vindicating those rights would 
be expensive? The fifth amendment, too, is more important than 
paperwork reductions or savings in staff time.
  Moreover, I suspect this amendment will cost less than its critics 
anticipate. I also expect substantial savings from the reduction in 
litigation fighting unconstitutional takings.
  This legislation reaffirms that the Constitution governs the 
regulatory process. I fail to understand how any official sworn to 
uphold the Constitution could oppose that purpose, and I urge my 
colleagues to support it.
  The PRESIDING OFFICER. Without objection, amendment No. 1729, as 
modified, is agreed to.


                           amendment no. 1720

  Mr. BREAUX. Madam President, I rise today to speak in support of S. 
318, the Outer Continental Shelf Deep Water Royalty Relief Act. I 
commend the senior Senator of Louisiana for introducing this 
economically prudent bill, which would provide for the energy security 
of the Nation through encouraging the production of domestic oil and 
gas resources in deep water on the Outer Continental Shelf in the Gulf 
of Mexico. I agree with Senator Johnston that this legislation is 
vitally needed to reduce our reliance on foreign oil, maintain a vital 
infrastructure, create jobs, and minimize the risk of oilspills.
  Madam President, the domestic energy industry is on the endangered 
industries list and continues to decline. Thousands of oil industry 
workers have been laid off and it looks like many more may become 
unemployed in the near future. Over 400,000 jobs have been lost in the 
oil and gas industry in the last 10 years. Our national security 
depends on access to dependable domestic energy reserves. The expertise 
needed to develop oil and gas is highly skilled and trained, now that 
the remaining domestic reserves are increasingly more difficult to 
recover. Unless we take steps today to help preserve a viable domestic 
industry, the next industry crisis may be chronic and very damaging to 
our economy.
  Finally, this bill is also environmentally sensible because it offers 
a tremendous opportunity for the discovery and production of new world 
class natural gas and oil fields in the only undeveloped domestic area 
of high resource potential open for exploration and production. 
Furthermore, the most recent data obtained from the minerals management 
survey shows that only 2 percent of the world's oilspills are the 
result from Outer Continental Shelf [OCS] development. In contrast, 45 
percent of the world's oilspills come from transportation related, or 
tanker spills. The more we import, the higher the risk of large 
oilspills.
  A significant component of our strategy to assure the availability of 
domestic supply is the development of the Outer Continental Shelf 
[OCS], particularly areas in the deep water over 1,200 feet. The OCS 
contains almost one-quarter of all estimated remaining domestic oil and 
gas reserves, much of which are in deep water. According to the 
Department of the Interior estimates, there are 11 billion barrels of 
oil equivalent in the Gulf of Mexico in waters of a depth of 200 meters 
or more. The costs of finding and producing oil and gas in deep water 
areas are astronomical; for example, a state-of-the-art rig in deep 
water, over 3,000 feet, can cost more than $1 billion, as opposed to 
$300 million for a conventional fixed leg platform in 800 feet of 
water.
  Based on similar large-scale projects, the development of the deep 
water of the Gulf of Mexico would create tens of thousands of jobs in 
the oil industry and a multiple of that in the general economy. The 
investment required to find, develop, and produce 5 to 10 billion 
barrels of oil could range from $50 to $100 billion. Since various 
studies have estimated that every billion dollars' worth of investment 
could create 20,000 jobs, a large-scale effort could create up to 1 
million jobs.
  Under current economic conditions, most oil and gas potential in the 
Gulf of Mexico will not attract investment, due to the high cost of 
finding and producing hydrocarbons in a hostile deep-water environment. 
S. 318 will attract such investment and provide an incentive to the 
domestic energy industry by providing that the Secretary of the 
Interior can reduce or eliminate royalties on nonproducing leases, and 
on new production from any lease located in depths of 200 meters or 
more in the western or central planning areas of the Gulf of Mexico 
until capital costs related to such production have been recovered.
  I urge my colleagues to join me in supporting this important 
legislation.
  Mr. CONRAD. Madam President, I rise to express my support for the 
bill before us today S. 2019, the Safe Drinking Water Act Amendments of 
1994. S. 2019 will provide the Nation with a more workable, rational, 
and flexible law that decreases the burden on small systems without 
jeopardizing public safety. In fact, I am convinced that the changes 
contained in S. 2019 will enhance public safety by giving States the 
flexibility to allocate their scarce resources to their most pressing 
needs.
  I had some serious concerns with S. 2019 as it was reported out of 
committee. It imposed new mandates on States, failed to provide 
regulatory flexibility, and did not do enough to balance risk and cost. 
Along with other Senators, I brought my concerns about S. 2019 to the 
committee, and they worked with us very diligently to fix the problems 
with the bill. As a result, I believe we now have a very solid, 
workable bill. I appreciate the chairman's willingness to work through 
these issues and compliment him, Senator Chafee, and the other Senators 
who have worked together to produce this legislation.
  Back in 1992, Congress took the first steps toward trying to fix the 
Safe Drinking Water Act when it approved monitoring relief for small 
systems under the Chafee-Lautenberg amendment. The Senate also narrowly 
rejected a much more far-reaching amendment that would have held up new 
drinking water regulations until the EPA could more fully assess their 
need. I supported that amendment and believe that it started a process 
which has brought us to this point today.
  The Safe Drinking Water Act is clearly a law that needs fixing. It is 
a perfect example of a mandate that places an unnecessary burden on 
States and communities. For example, the current statute requires that 
EPA regulate 25 new contaminants every 3 years, regardless of the 
overall risk posed by these contaminants. Mr. President, that is 
ridiculous. It is regulation for regulation's sake. In fact, this 
approach can actually increase public health risks by forcing 
communities to devote a disproportionate share of their scarce 
resources to drinking water regulation. The Act also requires systems 
to test for almost 100 contaminants, regardless of whether those 
contaminants are found in the area or not. According to our state 
health department, North Dakota systems are testing for at least 10 
pesticides that are not used and do not occur in the State.
  The current law imposes a particularly large burden on small water 
systems. Almost all of the water systems in my State qualify as small 
systems, and 87 percent of all systems nationally are small. These 
systems cannot afford the expensive testing and treatment technology 
required by the Safe Drinking Water Act. If they cannot meet these 
requirements, what then is their alternative? They can force their 
customers to pay hundreds or thousands of dollars a year to comply; 
they can apply for the very small amount of assistance available 
through various Federal agencies; they can be in noncompliance and face 
stringent penalties from EPA; or they can abandon their public water 
systems and return to unregulated private wells. In my State, Mr. 
President, people are strongly considering this last alternative. 
However, private wells often pose a greater health risk than water from 
the public system. Thus, the Safe Drinking Water Act may have the 
ironic effect of increasing the health risk to rural citizens instead 
of decreasing it.
  S. 2019 provides the flexibility and assistance necessary for all 
systems, both small and large, to better protect the public health at 
less cost. It greatly reduces the mandates and burdens imposed on 
States and communities. The changes to existing law are numerous, and I 
would like to highlight the most significant.
  First, we are eliminating the unnecessary requirement that 25 
contaminants be regulated every 3 years. Under S. 2019, only 
contaminants which present a significant threat to public health will 
be regulated. EPA will also have to base its analysis on sound science 
and risk assessment when determining whether or not a contaminant poses 
a significant enough threat to merit regulation.
  We will also consider the trade-off between risks and costs when 
setting the maximum contaminant level [MCL] for regulated contaminants. 
The current standard setting process is driven solely by technology, 
and EPA must select the most effective treatment technology that is 
affordable to large systems. S. 2019 allows EPA to select a different 
technology if it will provide significant savings and not sacrifice 
public safety. This could save communities millions of dollars in 
treatment costs.
  EPA will also be required for the first time to publish the projected 
costs and benefits of a regulation when proposing it in the Federal 
register. This way, all citizens will be able to see the threat being 
addressed and the associated costs to combat it. I believe it is 
important for everyone to gain a better understanding of what is behind 
the regulations.
  Risk comparison will also be used for a specific contaminant that has 
the potential to be tremendously expensive to treat for--radon. Radon 
occurs in water in far lower concentrations than it occurs in air. 
Thus, radon in water presents less of a threat to public health than 
does radon in air. However, the proposed rule for radon would have 
systems spend huge amounts of money to treat for radon concentrations 
in water which are only a fraction of those in the air. S. 2019 allows 
States to direct their resources to the greatest threat by relaxing the 
water treatment level for radon in States that have a program to combat 
radon in air.

  Monitoring for contaminants represents one of the greatest expenses 
involved in complying with the Safe Drinking Water Act, and S. 2019 
reduces unnecessary monitoring requirements. It makes no sense for 
systems to have to test for contaminants that do not exist in the 
sourcewater area. In addition, systems should not have to test 
frequently if there is little chance of a contaminant polluting the 
water supply. S. 2019 reduces the burden on systems by allowing States 
to develop their own monitoring plans that take into account the 
occurrence of contaminants within the State. Systems serving less than 
10,000 people will get additional monitoring relief through reduced 
monitoring requirements for contaminants that are carcinogens. Finally, 
EPA will have to review at least 12 regulated contaminants to determine 
whether or not they still occur often enough to warrant continued 
monitoring.
  As I have mentioned, small systems have a particularly difficult time 
meeting the requirements of the Safe Drinking Water Act. In addition to 
monitoring relief, S. 2019 allows small systems to use a more 
affordable treatment technology if they cannot afford the expensive one 
identified under the MCL. This alternative treatment technology would 
not put public health at risk, but would enable small systems to meet 
their needs in an affordable way.
  Finally, even with all of these changes to make the Act more 
workable, States and small systems still desperately need additional 
resources to comply with drinking water requirements. Therefore, we are 
authorizing a state revolving loan program of $600 million/year in 1994 
and $1 billion/year from 1995-2000. This money will be loaned, and 
sometimes granted, to systems in each State so they can make the 
investments necessary to provide safe drinking water to their users. S. 
2019 further allows States to transfer funding between the Safe 
Drinking Water and Clean Water revolving loan funds. Thus, States will 
have the flexibility to address their most pressing water needs as they 
see fit.
  S. 2019 also increases the yearly administrative grants made by EPA 
to the States and authorizes the use of the revolving loan fund by the 
States for special administrative purposes. For example, a State could 
use some of the fund to establish its own monitoring program, thereby 
reducing the long-term monitoring costs to systems.
  Finally, I am pleased that my amendment regarding a sourcewater 
protection program was adopted. My amendment modifies the sourcewater 
program originally included in S. 2019 in two main ways. First, it 
makes the program voluntary for States so they will not have another 
mandate imposed upon them. Second, it requires communities to work 
together with the State and the affected parties in the sourcewater 
area to address contaminant problems in the water. My amendment 
requires a cooperative, problem-driven approach and gives communities a 
valuable new tool in their fight to keep their water safe.
  In sum, S. 2019 will reduce the burden on States and communities, 
reduce unnecessary regulation, and provide needed relief and assistance 
for small systems struggling to continue providing safe drinking water. 
I might add that S. 2019 has the support of a broad group of water 
interests, including the National Rural Water Association. The North 
Dakota State Health Department also believes that the changes included 
in S. 2019 are important and necessary. I hope to see these changes 
enacted into law very soon.
  Mr. DOLE. Madam President, if ever there was a metaphor for Federal 
mandates in America it has been the Safe Drinking Water Act. I can 
think of few issues that have been as contentious as this one has been. 
In fact, I have heard from dozens of Kansas communities which are 
overwhelmed with EPA safe drinking water mandates they can not afford. 
Many of the complaints we hear involve the sheer complexity and 
overkill just to comply. The system is broken--and needs to be fixed. I 
believe there is a general agreement on that point.
  However, Madam President, I do have some concerns that his bill does 
not go as far as it should to bring real regulatory relief to these 
communities, particularly rural water systems which have extremely 
limited resources to comply with Washington's regulations.
  I am encouraged by the degree of discussion and cooperation that has 
occurred already. Senator Chafee has worked very hard on this bill. 
Senators Domenici, Kempthorne, Warner, Simpson, Smith, Faircloth, and 
Durenberger have done an outstanding job as well. I know Senator Baucus 
appreciates the impacts this law has had in his State of Montana.
  I appreciate the changes that will be included in this bill since 
this debate began. These changes to improve EPA flexibility, a 
monitoring waiver for small systems serving less than 10,000 people, 
and provisions to assist disadvantaged communities with State revolving 
loan funds are indeed necessary and appreciated.
  However, I would have to say this bill is not perfect by any means. I 
share the concerns of many of my fellow rural, agricultural State 
colleagues that this bill is the first step toward EPA regulation of 
production agriculture. My colleagues know we produce an abundant, safe 
and inexpensive supply of food for this Nation and for export. I remind 
my colleagues that we can only go so far--both scientifically and 
economically--before we cross the line where agricultural production is 
no longer a viable industry.

  Likewise, Madam President, I am also concerned this legislation could 
adversely affect the domestic oil and gas industry, the construction 
industry and many other important and critical industries who may 
suddenly find themselves awash in additional Federal redtape in order 
to comply with rules and regulations that at great cost are marginal at 
best in terms of public health protection.
  I appreciate the work that was done to modify the watershed 
protection provisions that were originally contained in the committee 
approved bill. I will, however, reserve judgment for the future as to 
their effect and closely monitor the implementation of these 
provisions--particularly the critical aquifer protection provisions.
  Eventual application of safe drinking water standards to all 
navigable and underground waters, in my view, is the intent of some of 
my colleagues in the Senate and will only lead to the imposition of new 
and substantial mandates to State and local governments and on American 
agriculture and other important national industries.
  Madam President, this debate is not about whether the U.S. Senate 
supports safe drinking water. Of course we do. What this debate is 
about is whether unreasonable Federal mandates out of Washington, DC 
are truly serving the interests and needs of the American people to 
provide adequate protection of our water supplies at a reasonable cost.
  Mr. HATCH addressed the Chair.
  Mr. FORD. Madam President, how much time would the Senator from Utah 
desire?
  Mr. HATCH. I think no more than 5 minutes.
  Mr. FORD. Madam President, I ask unanimous consent that the Senator 
from Utah may have 5 minutes and at the end of his statement--does the 
Senator from Nebraska want some time?
  Mr. EXON. Yes.
  Mr. FORD. How much time does the Senator want.
  Mr. EXON. Two minutes.
  Mr. FORD. Two minutes.
  Madam President, I ask unanimous consent that the Senator from Utah 
have 5 minutes, the Senator from Nebraska, [Mr. Exon], have 2 minutes, 
and at the end of that statement there be a period for morning business 
with Senators allowed to speak therein for up to 5 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator from Utah is recognized for 5 minutes.
  Mr. HATCH. I thank the Chair.
  I rise to support Senator Bumper's amendment, as modified by Senator 
Dole's language, which requires Federal agencies to assess the impact 
of their proposed actions on private property. It addresses a matter of 
concern to growing numbers of Utah property owners.
  James Madison, rightly called the Father of the Constitution, penned 
a very important essay on property which appeared in the March 27, 
1792, issue of the National Gazette. In the essay, Madison opined as to 
the meaning and importance of property. To Madison, property has a 
twofold nature:

       This term . . . means ``that dominion which one man claims 
     and exercises over the external things of the world, in 
     exclusion of every other individual.'' In its larger and 
     juster meaning, it embraces everything to which a man may 
     attach a value and have a right, which leaves to every one 
     else the like advantage. In the former sense, a man's land, 
     or merchandise, or money, is called his property. In the 
     latter sense, a man has a property in his opinions and the 
     free communication of them. . . . In a word, a man is said to 
     have a right to his property, he may be equally said to have 
     a property in his rights.

  Indeed, Government is instituted, according to James Madison and our 
other Founding Fathers, ``to protect property of every sort; as well 
that which lies in the various rights of individuals, as that which the 
term particularly expresses. Thus being the end of Government that 
alone is a just Government which impartially secures to every man 
whatever is his own.''
  Sadly, Madam President, through the pale of time and in the rush by 
some to resolve all social problems through the heavy hand of 
governmental regulation, we have all too often failed to honor 
Madison's philosophy. All too often in order to protect the environment 
or to promote the aesthetics of our neighborhoods, we have placed a 
disproportionate burden on small landowners, in violation of the fifth 
amendment's command of just compensation and that property be taken 
only for public use. We have witnessed horror stories of the worst kind 
of naked arbitrary use of governmental power, where a property owner 
was imprisoned for cleaning up his garage and backyard because the area 
was declared a wetland--or where a municipality conditioned a variance 
to enlarge a family run hardware store on the ceding of 10 percent of 
their land to the city to build a bicycle path! This is nothing more 
than an act of extortion, and indeed, because of its national 
importance, this case is presently being considered by the U.S. Supreme 
Court. These acts have spawned a nation-wide property rights movement--
a ``sagebrush'' revolt--of small landowners, farmers and ranchers, and 
owners of ``mom and pop'' businesses. I believe that the fight to 
restore property rights is one of the premier civil rights issues of 
the 1990's.
  To be sure, the need to protect our natural resources--our 
environment--is of great concern. It is a legacy owed to posterity. But 
a balance needs to be struck between conservation and development, 
between the environment and the right of property. Executive Order 
12630, promulgated by President Reagan in 1988, attempted to reach that 
balance. In essence, the Executive order required Federal agencies to 
conduct a takings impact analysis or TIA before undertaking any 
proposed action regulating private property use for the protection of 
the environment or any other legitimate public purpose. I said that the 
Executive order ``required'' Federal agencies to conduct a takings 
impact analysis because, most unfortunately, this administration has 
refused to enforce this simple remedial measure. Executive Order 12630, 
for all practical purposes, is a dead letter.
  That is why this amendment is so important. It would codify the TIA 
requirement. Thus, agencies would have to assess whether a taking of 
private property would occur under its proposed regulation and consider 
such alternatives to the proposed regulation that would lessen the 
adverse effects on the use or value of private property. This ``assess 
and consider the alternatives'' approach is similar to that of the 
National Environmental Policy Act and its requirement that agencies 
consider the environmental impact of proposed rules. Can we do no less 
for the property rights or ordinary citizens?
  Madam President, I wish to personally thank Senator Dole for his 
leadership on this issue. It is about time we did this. I hope that 
this amendment will be carried through on this bill all the way through 
the process, because it is about time we stood up and did what is right 
about property rights.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Nebraska is recognized for 2 
minutes.
  Mr. EXON. I thank the Chair.
  (The remarks of Mr. Exon pertaining to the introduction of S. 2132 
are located in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  Mr. EXON. Madam President, I yield the floor.
  The PRESIDING OFFICER. The question is on the engrossment and third 
reading of the bill.
  The bill (S. 2019) was ordered to be engrossed for a third reading 
and was read the third time.

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