[Congressional Record Volume 159, Number 67 (Tuesday, May 14, 2013)]
[Senate]
[Pages S3400-S3421]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
WATER RESOURCES DEVELOPMENT ACT OF 2013--Continued
The PRESIDING OFFICER. The Senator from California.
Mrs. BOXER. What is the order?
The PRESIDING OFFICER. The Senate is considering S. 601.
Mrs. BOXER. We are working on our finite list, and we expect to make
our unanimous consent shortly.
I note the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Ms. LANDRIEU. I ask unanimous consent that the order for the quorum
call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. LANDRIEU. While we have some down time on the floor to wait for
the 2:30 hour--I believe we are going to have some action on the WRDA
bill, which is very important--I thought I would take this time to talk
about an amendment I have pending on the WRDA bill. It is an amendment
that I offered for myself, Senator Vitter, Senator Schumer, and Senator
Menendez. Several other Senators have expressed their strong support
over the weekend on both sides, Republicans and Democrats.
There are many States in the Union, and Louisiana is only one--the
State of Florida, the State of California, the State of Mississippi,
the State of Alabama, other coastal States and, yes, some inland
States--that are going to be terribly disadvantaged if the Landrieu-
Vitter amendment does not pass on the WRDA bill. What is going to
happen because of a reform bill--parts of it were necessary, but there
were some parts that, in my view and in the view of many Senators,
should never have passed as part of the flood insurance reform bill.
The reason some of us are fairly exercised about this is the bill
itself, the reform bill to reform the Flood Insurance Program of the
United States, never came to this floor for debate. It came out of the
Banking Committee, and then it was basically tucked into a larger
omnibus bill, which happens sometimes. This is not the only or the
first time it has happened. It is very unfortunate that it happened
with this bill.
In our haste and in our good intentions to try to put national flood
insurance on a more even financial keel, we have put the ability,
unfortunately, in this bill for flood insurance rates to go up 20
percent a year on hundreds of thousands of first homes in this
country--not second homes, not vacation homes, but first homes. The
Landrieu-Vitter amendment doesn't try to solve this whole problem on
the WRDA bill. It is going to take a little bit of work, which we can
do, working together in good faith on behalf of our constituents.
This is big government at its worst--passing a reform bill and making
the cure worse than the disease. In this case, for my constituents and
for constituents in Florida, Mississippi, California, and New Jersey,
we would have taken the disease as opposed to the cure. The cure is
going to kill us. We weren't sure about the disease, but the cure is
going to kill us.
Our papers have been editorializing for days since this issue has
come to the surface on the WRDA bill. Our largest newspaper or second
largest newspaper editorialized this morning and spoke about a quite
senior woman--in her eighties--who lives with her daughter, who is in
her sixties, in Plaquemines Parish. It is very typical to have families
of different generations living together. They were in Plaquemines
Parish before the flood insurance measure was ever passed.
We were living in Louisiana before this Nation was a nation. Our
people have been down there a long time living on this water. They
built their houses centuries--not this couple, but we had houses built
centuries before this bill was ever passed. Now, what the law--the cure
that is going to kill us--says is that this is their choice: They can
elevate their home 18 feet, which probably would cost $50,000, which
they don't have, or their flood insurance will go up to something on
the order of $15,000 or $20,000 a year, which they can't pay.
One may say: That is too bad. Let them sell the house.
Their house has no value.
This is a dilemma not just for the people of Louisiana but for people
from Mississippi, Alabama, California, and New York. We have a
solution. The solution I have offered is temporary until we can be
smart and think about how to fix this, and it doesn't cost anything.
I am begging Members to allow us this short period of time to get
this cure corrected. We can find a way to make this program balance. We
don't have to do that today, at this moment. Give us a little breathing
room to figure this out. I believe this program could be self-
sustaining. I am not an expert on insurance, but I am very fortunate to
serve with colleagues who are. I am sure we can put our heads together
and come up with something better than what is coming down like a
firehose out there on lots of people in communities in Florida,
Louisiana, Mississippi, and Alabama.
My understanding is--the managers are not on the floor--that there
are about eight or nine amendments that have been worked out,
hopefully, on both sides of the aisle. One of them is the Landrieu-
Vitter fix, the flood insurance amendment that has zero cost to the
taxpayer--zero. It is a temporary reprieve of rates going up for
grandfathered homes, which affects many people in Florida, Louisiana,
and in other States as well. It has a zero score. The CBO has
testified. We have letters from CBO.
Please give our people this breathing room. I promise that I will
work in good faith.
There are probably a few other things that need to be fixed in this
flood insurance bill as we find a better way to lower costs to the
taxpayer and to provide opportunities for people to live on a
mountaintop if they choose, in a valley or on the coast, but to be
safely sustainable. We all need to work together as a country. We can
find an affordable way for our people--and not just millionaires--to be
able to live on the coast. We have to make room for our fishermen, our
agriculture, our farmers, and our aquaculture folks who have invested a
good amount of money in helping to build more sustainable fisheries for
our Nation. We have people who have to live near the water for commerce
and trade. Not everybody lives by the water to vacation. Some people
live by the water to work, which is an essential part of the work to
keep this country moving forward. We have to figure out a way to allow
them to do that in an affordable manner without completely undermining
the coastal counties of our country.
Senator Schumer is on the floor now with some others who also have
been working. I thank them for working over the weekend. Let's help
them get this list of amendments cleared. One of those amendments will
be the Landrieu-Vitter amendment on fixing temporarily--giving some
reprieve to thousands of homeowners who are desperate for a signal from
us that we get it, we understand. We didn't correct this appropriately.
We are going to respond, as a democracy should, and give them a little
signal today that as the WRDA bill moves forward, we can fine-tune and
modify this flood insurance reform.
I understand we are ready for action on WRDA.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
[[Page S3401]]
Mrs. BOXER. Madam President, I ask unanimous consent the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendments Nos. 847, 899 as Modified, 895, 894, 867, 872, 912, 880,
904, 884, 870 as Modified, 911 as Modified, 882, 903 as Modified, 906
as Modified, 893, 898, 861 as Modified, 907, and 896 En Bloc
Mrs. BOXER. For the interest of Senators, we are going to very
shortly propound a consent agreement that has been cleared by Senator
Vitter and myself and we will see where that takes us. If it needs to
be modified, we may well do that, but I want Senators to know it is our
hope we can avert a cloture vote at this time.
I ask unanimous consent the following amendments be considered and
agreed to en bloc: Baucus No. 847, Boxer-Vitter No. 899 as modified,
Inhofe No. 895, Wicker No. 894, Inhofe No. 867, Boozman No. 872, Thune
No. 912, Cornyn No. 880, Murkowski No. 904, Klobuchar No. 884, Wyden
No. 870 as modified, Cochran No. 911 as modified, Carper No. 882,
Murkowski No. 903 as modified, Durbin No. 906 as modified, Levin No.
893, Collins No. 898, Cardin No. 861 as modified, Brown-Graham No. 907,
and Wyden No. 896; further, that the only remaining amendments in order
to the bill be the following: Inhofe No. 797, Barrasso No. 868, Sanders
No. 889, Johnson and Landrieu--Johnson No. 891, Landrieu No. 888,
Coburn No. 815, Coburn No. 816, Boozman No. 822, Merkley No. 866, Udall
of New Mexico No. 853, and Hoeven No. 909; further, that no second-
degree amendments be in order to any of the amendments prior to votes
in relation to the amendment; that the time until 5 p.m. be equally
divided between the two leaders or their designees for debate on all of
the amendments; that at 5 p.m. the Senate proceed to vote in relation
to the amendments in the order I have listed; that all after the first
vote be 10-minute votes; that there be 2 minutes equally divided prior
to each vote; that the following amendments be subjected to a 60-
affirmative-vote threshold: Sanders No. 899, Johnson No. 891, Landrieu
No. 888, and Barrasso No. 868; finally, that upon disposition of the
Hoeven amendment No. 909, the cloture motion be withdrawn, the Senate
proceed to vote on the passage of S. 601, as amended.
The PRESIDING OFFICER. Is there objection? The Senator from
Pennsylvania.
Mr. TOOMEY. Madam President, reserving the right to object, I want to
point out there is one amendment in this package that is very troubling
to me. Under the current flood insurance law we passed just 10 months
ago, we put in place a mechanism to diminish the subsidization that
occurs now where homeowners in low-risk areas are made to subsidize
homeowners in high-risk areas by the nature of the way premiums are
set. The existing law is designed to diminish significantly that unfair
subsidy that occurs, and I think that is why the chairman and the
ranking member of the Banking Committee and many others of our
colleagues oppose this amendment.
If this amendment goes through, the Landrieu amendment No. 888, then
for 5 years this reform cannot take place and that means not only do
people in low-risk areas continue subsidizing people in high-risk
areas, but because people in high-risk areas are paying lower premiums
than what they ought to pay to reflect the risk they are taking, it
creates the moral hazard of a risk to continue building in high-risk
areas with the expectation this will continue and therefore jeopardizes
taxpayer funds.
This is already a program that is $24 billion in debt and that is the
reason I object.
The PRESIDING OFFICER. Objection is heard. The Senator from
California.
Mrs. BOXER. Madam President, it is my understanding, listening to my
friend from Pennsylvania, that he objects to the Landrieu amendment. It
is also my understanding that Senator Landrieu would like to be heard
on this matter. Then I will propound a new consent request. I ask she
get the floor and I yield the floor.
The PRESIDING OFFICER. The Senator from Louisiana.
Ms. LANDRIEU. Madam President, I wish to clarify through the Chair
that the Senator from Pennsylvania is not objecting to the long list of
amendments as described by the chairman of the committee, he is only
objecting to amendment No. 888 and objecting to a vote on amendment No.
888 by myself, Senator Vitter, Senator Schumer, Senator Menendez,
Senator Lautenberg, and others; is that correct? Is the Senator
objecting to a vote or to the amendment?
Mr. TOOMEY. Madam President, my understanding is there is a unanimous
consent request for a series of amendments on this bill, and I am
objecting to that consent request because it contains the Landrieu
amendment No. 888.
Ms. LANDRIEU. So it is my understanding, Madam President, through the
Chair, that the Senator is objecting to a vote on the amendment. He is
certainly entitled, in my view, to vote against the amendment. That is
what debate on the floor is all about. But he is not expressing his
objection to that. He is objecting to having a vote on the amendment;
is that correct?
Mr. TOOMEY. Madam President, as I said earlier, this is a matter that
has been litigated and adjudicated in this body. We have had a vote on
this. This has not come back through committee. This would cause
considerable risk to taxpayers. If the Senator from Louisiana believes
this is something that needs to be addressed yet again, despite the
fact that 10 months ago we had a vote on this--and we did vote, then I
would be happy to work with the Senator on how we might address that.
But my objection still remains.
Ms. LANDRIEU. Madam President, I am just trying to get clarification
through the Chair from the Senator from Pennsylvania. I understand he
objects to my amendment. That is not what I am asking him. I would just
like a yes or no answer; is he objecting to a vote on the amendment?
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. TOOMEY. I think I answered the question.
Ms. LANDRIEU. He did not answer the question clearly, but since he
will not answer the question, which is unfortunate, I wish to make it
clear for the record that the Senator from Pennsylvania is objecting to
a vote on the Landrieu-Vitter amendment. He most certainly is entitled
to vote no on our amendment. Other Senators may vote no. But I want the
record to show he is saying, no, we cannot even have a vote.
If I could have 5 more minutes. I will take 3 more minutes. I want to
say how disappointing it is to me because the Senator is unfortunately
wrong on several counts.
No. 1, this floor never voted on the Biggert-Waters bill. As I said a
dozen times, the bill came out of the Banking Committee with broad
bipartisan support. A different bill was passed by the House. Then
these two bills that were very different and tried to ``reform the
flood insurance program'' were tucked into a conference committee
report. I want the record to show this floor never voted on the reform,
and the cure that came out of the conference committee is worse than
the disease.
Second, I want to tell the Senator from Pennsylvania I think this is
going to come back to haunt him because the people of his own State are
going to be negatively affected by his actions today.
There are 74,000 people in Pennsylvania--4,000 in Philadelphia alone
but 74,000 people in Pennsylvania who pay flood insurance rates. Under
the proposal that never came to this Senate floor, those rates in some
cases can go up 20 or 30 percent in 1 year.
For the record, I want to put in: In Florida, 2 million people are
affected; Texas, 645,000; Louisiana, 486,000; California, 256,000; New
Jersey, 240,000; South Carolina, 205,000; New York, 178,000; North
Carolina, 138,000--I am not going to read all of this--Virginia,
116,000; and in Pennsylvania, 74,000. I could go on. I ask unanimous
consent this list be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
NFIP POLICIES BY STATE
[County/City Examples]
------------------------------------------------------------------------
State/County/City Policies in Force
------------------------------------------------------------------------
1 Florida......................................... 2,060,245
City of Fort Lauderdale.......................... 42,126
2 Texas........................................... 645,615
City of Houston.................................. 132,529
3 Louisiana....................................... 486,580
Jefferson Parish................................. 121,501
4 California...................................... 256,095
City of Sacramento............................... 46,758
5 New Jersey...................................... 240,857
[[Page S3402]]
Ocean City..................................... 17,370
6 South Carolina.................................. 205,146
Beaufort County.................................. 54,201
7 New York........................................ 178,863
New York City.................................... 44,415
8 North Carolina.................................. 138,605
Dare County.................................... 22,157
9 Virginia........................................ 116,275
City of Virginia Beach........................... 25,530
10 Georgia........................................ 96,906
Chatam County.................................... 31,870
11 Mississippi.................................... 75,186
Harrison County.................................. 20,271
12 Pennsylvania................................... 74,006
Philadelphia..................................... 4,330
13 Maryland....................................... 73,696
Ocean City....................................... 27,232
14 Massachusetts.................................. 59,420
Plymouth County.................................. 10,748
15 Hawaii......................................... 59,290
Honolulu......................................... 37,398
16 Alabama........................................ 58,048
Baldwin County................................... 26,985
17 Puerto Rico.................................... 55,964
Puerto Rico...................................... 50,935
18 Illinois....................................... 48,498
Cook County...................................... 17,777
19 Washington..................................... 45,200
Skagit County.................................... 5,728
20 Ohio........................................... 41,920
Ottawa County.................................... 1,962
21 Connecticut.................................... 41,710
Fairfield County................................. 17,140
22 Arizona........................................ 35,000
Scottsdale....................................... 8,672
23 Oregon......................................... 34,764
Portland......................................... 2,148
24 Tennessee...................................... 33,745
Davidson County.................................. 7,377
25 Indiana........................................ 30,933
Indianapolis..................................... 5,852
26 Missouri....................................... 26,640
St. Louis County................................. 1,229
27 Michigan....................................... 26,247
City of Dearborn Heights......................... 1,232
28 Delaware....................................... 26,011
Sussex County.................................... 21,250
29 Kentucky....................................... 25,179
Louisville-Jefferson County...................... 5,503
30 Arkansas....................................... 21,459
Little Rock...................................... 1,487
------------------------------------------------------------------------
Ms. LANDRIEU. Second, I have a letter from the National Association
of Home Builders--not a liberal-leaning organization and most certainly
not a group that just works in Louisiana. People build homes all over
America including in Pennsylvania. They sent a strong letter urging us
to adopt the Landrieu-Vitter amendment which will just temporarily put
a hold on raising rates 20 to 40 to 60 to 80 percent on grandfathered
homes that were around before the flood insurance program was ever
invented by Members of this body, well before I was even a Senator.
What this says is the program should be widely available, it should
be affordable, so people can live in many different places of America.
This is one big great country with lots of different kinds of
neighborhoods. That is what the National Association of Home Builders
said, and I am going to submit their letter.
I ask unanimous consent that it be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
National Association of
Home Builders,
Washington, DC, May 14, 2013.
Hon. Harry Reid,
Majority Leader, U.S. Senate, Washington, DC.
Hon. Mitch McConnell,
Minority Leader, U.S. Senate, Washington, DC.
Dear Majority Leader Reid and Minority Leader McConnell: On
behalf of the more than 140,000 members of the National
Association of Home Builders (NAHB), I am writing to express
strong support for amendment #888 (sponsored by Senators Mary
Landrieu and David Vitter) to S. 601, the Water Resources and
Development Act of 2013. This amendment would delay flood
insurance premium increases on certain properties for 5
years. NAHB believes a financially-stable National Flood
Insurance Program is in all of our interests, yet we must
ensure that overall affordability is not adversely affected.
The Biggert-Waters Flood Insurance Reform Act of 2012
(BW12) reauthorized the NFIP for five years and included a
phase-in to actuarial rates to help return the program to
sound financial footing. Also included in the law was the
requirement for a study and a report on the affordability of
NFIP premiums and the effects of increased premiums on low-
income homeowners.
The BW12 phase-in to actuarial rates is separated into two
different segments of policy-holders. Some homeowners will
start to see premium increases in October, while the others
will start in 2014, once the new scientific rate maps have
been drawn and approved. Over the next year and a half, many
hard working homeowners in flood-prone areas (and newly-drawn
flood prone areas) could see large flood insurance premium
increases. The Landrieu-Vitter amendment ensures that the
later changes are delayed to help Congress re-examine
consumer affordability and answer other questions about
implementing BW12. NAHB believes this amendment is a first
step in balancing consumer affordability and re-establishing
the solvency of the program.
The homebuilding industry depends on the NFIP to be
annually predictable, universally available, affordable and
fiscally viable. This program enables the home building
industry to deliver safe, decent, affordable housing to
consumers in all areas of the country. We urge you to support
this important amendment that balances the fiscal solvency of
the NFIP and consumer affordability.
Sincerely,
James W. Tobin III,
Senior Vice President &
Chief Lobbyist.
Ms. LANDRIEU. Evidently, the Senator from Pennsylvania doesn't
understand this. That is fine. We have disagreements and I respect him.
He should vote no. But to stop a vote?
The third and final argument I am going to make in my 30 seconds
left, we worked so hard on this amendment that it doesn't even cost
anything.
We have a zero score--zero. It does not cost one dime, not one
dollar, and still the Senator from Pennsylvania, with 74,000 people in
his State who could be affected, is objecting to even voting on giving
people a chance. We are going to be on this issue again; it is going to
come back.
I praise Senators Boxer and Vitter for their work on WRDA. It is a
shame that we cannot even get a vote to postpone this issue to try to
see if we could make it more affordable. It doesn't cost anything.
I say to the Senator from California that I am sorry for holding this
up. I thought this was important. We worked on it all week. Everybody
is cleared except for one Senator from Pennsylvania.
I yield the floor.
The PRESIDING OFFICER (Mr. Manchin). The Senator from Louisiana.
Mr. VITTER. Madam President, I rise to very briefly agree with two
key points made by my colleague from Louisiana. First of all, as far as
the substance of this amendment goes, I wholeheartedly agree with her,
and that is why I am a sponsor of this amendment as well.
We will visit this issue again because it is vitally important that
we get it right--not just for the tens of thousands of folks from
Louisiana but for millions of Americans across the country. We need to
get this right, and we don't yet have it right.
Secondly and also very importantly, I absolutely agree that we should
have debate and votes on the Senate floor. I don't think any Member
should object to just having a vote on a matter.
My colleague, the Senator from Pennsylvania, has been a leading
advocate to have an open amendment process on the Senate floor, to
allow votes, and I agreed with that. I fought with the chair of the
committee to have an open amendment process in the context of this
bill, and we got it. Now, at the end of the day, he objects to even
having a vote on a particular amendment he doesn't like. The Senator
cannot have it both ways. If the Senator wants an open amendment
process on the floor, as I do, then he will have to accept that he may
have to take votes on amendments he doesn't agree with. I accept that;
I wish he would accept that. I hope it will continue and grow from
here.
The PRESIDING OFFICER. The Senator from California.
Mrs. BOXER. Mr. President, I think everybody who is listening to this
understands that there has been a disagreement here--a pretty tough
one.
I have to praise Senator Landrieu for saying: Look, I am going to
bring this fight back another day. She has told me she would be willing
to support a new, modified request--the same one I made about 10
minutes ago--and take out Johnson amendment No. 891 and Landrieu
amendment No. 888. I believe the new request will be acceptable to all
in the Senate.
I renew my request with that change--the deletion of Johnson
amendment No. 891 and Landrieu amendment No. 888. I ask unanimous
consent that we move forward with this agreement at this time.
The PRESIDING OFFICER. Is there objection?
The Senator from Florida.
Mr. RUBIO. Mr. President, reserving the right to object, we realized
over the last 72 hours that we were all scandalized when we learned
that the Internal Revenue Service of the United States and employees
within the Internal Revenue Service were targeting fellow Americans and
political organizations because of their political views. The feelings
we have are bipartisan--I hope they are. I don't think any of us want
to see an agency of government being used to target our fellow
Americans because of their points of view on a political issue. This is
a very serious issue.
[[Page S3403]]
Yesterday I called for the President to ask for the resignation of
the acting chief of the IRS. I asked that there be a criminal
investigation launched in this matter, which Attorney General Holder
has announced today.
I have prepared an amendment that I think is timely and that I hope
we will consider in this body that makes it a crime for an employee of
the IRS to target individual taxpayers or organizations because of
their political views. I stand today to ask if the chairwoman would
consider consenting to allow my Rubio amendment No. 892 to be included
in the unanimous consent agreement.
The PRESIDING OFFICER. The Senator from California.
Mrs. BOXER. If I might respond to my friend's request, the American
people need to know that we are dealing on this Senate floor with a
bill that is the Water Resources Development Act. This bill is about
improvements in flood control so we don't have anymore Hurricane
Sandys. This is also about port-deepening and about 500,000 jobs. This
is about restoring the Chesapeake Bay and the Everglades in my friend's
home State. What a beautiful spot that is, I say to my friend. It is
not about the IRS scandal, although I could not agree more with my
friend. Anyone who would play politics at the IRS is doing a disservice
to this Nation. I am happy to look at this law. They ought to be
canned.
Mr. President, I ask unanimous consent that an inquiry which took
place by the IRS into a church in my State--the All Saints Church--in
the district of Adam Schiff be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Los Angeles Times, Dec. 9, 2005]
Inquiry Into IRS Investigations of Churches Is Sought
(By Patricia Ward Biederman)
Expressing concern about the 1st Amendment rights of
clergy, Rep. Adam B. Schiff (D-Burbank) and two Republican
colleagues called Thursday for an investigation by the U.S.
Government Accountability Office into the IRS' recent probes
of alleged ``campaign intervention'' by churches, including
Pasadena's liberal All Saints Church.
Schiff, whose district includes Pasadena, said he asked for
information from the IRS on its church inquiries soon after
learning in November that the local Episcopal church could
lose its tax-exempt status because of an antiwar sermon
preached by former Rector George Regas just before the 2004
presidential election.
Because the IRS has yet to respond to his request, Schiff
said, ``I've gone to the next level.''
On Thursday, Reps. Walter B. Jones (R-N.C.) and Joe Pitts
(R-Pa.) joined with Schiff in sending a letter to GAO
Comptroller General David M. Walker. They asked the office to
look into reports that the IRS is investigating places of
worship ``based on the content of sermons or other discourse
delivered as part of a religious service or gathering.''
Although the tax code prohibits tax-exempt organizations
from ``intervening in political campaigns and elections,''
the congressmen said, ``We believe that the faith community
has every right to express itself in the political process.''
Spokesman Eric Smith said IRS policy precludes commenting
on requests such as the congressmen's. But Smith cited a
report released by the Treasury Department in February that
found the IRS had ``not . . .
All Saints Rector Edwin Bacon announced Nov. 6 that the
church's tax-exempt status was threatened.
The congregation has received wide support, from
evangelicals as well as liberal groups. All Saints expects an
IRS decision soon, a church spokesman said.
Mrs. BOXER. Republicans and Democrats at that time asked for
investigations into this, and this is from 2005.
I ask unanimous consent that an article that talks about the
investigation of the NAACP that involved the IRS in 2006 be printed in
the Record.
This is a continuing scandal. It is outrageous, and I think anyone
who goes after a liberal group should be canned. Anyone who goes after
a conservative group should be canned unless there is reason to do so.
But it appears they are not following the rules of nonprofits, which is
they cannot be political.
I ask that those items be placed in the Record only to remind people
that this is a bad and terrible thing that has happened, and it has
been a while.
I object to the request that we place such an urgently important
matter on this long-term bill. It is going to take a while for us to
get it through the House. We don't know when the conference will come
back.
I object to the unanimous consent request to turn a bill like this
into a bill about the IRS scandal.
The PRESIDING OFFICER. First of all, on the second request of the
Senator from California, is there any objection?
The Chair hears none.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Washington Post, September 1, 2006]
IRS Ends 2-Year Probe of NAACP's Tax Status; Leader's Criticism of Bush
in 2004 Did Not Violate Law, Agency Decides
(By Darryl Fears)
Nearly two years after a controversial decision to
investigate the NAACP for criticizing President Bush during
the 2004 presidential campaign, the Internal Revenue Service
has ruled that the remarks did not violate the group's tax-
exempt status.
In a letter released yesterday by the NAACP, the IRS said
the group, the nation's oldest and largest civil rights
organization, ``continued to qualify'' as tax-exempt.
If the NAACP were stripped of the status, donors would not
be allowed to claim contributions to the group on income tax
returns.
Federal law requires tax-exempt nonprofit organizations to
be politically nonpartisan.
``It was an enormous threat,'' NAACP Chairman Julian Bond
said of the investigation. The opposite outcome, he said,
``would have reduced our income remarkably.''
Bond reiterated his belief that the investigation was
politically motivated. He said the decision, received by the
NAACP on Aug. 9, ``meant that they thought they had harassed
us enough and they could stop.''
In a response to lawmakers who expressed outrage over the
investigation in 2004, IRS Commissioner Mark W. Everson said
the agency's examinations are based on tax law, not
partisanship.
The commissioner said the investigation of the NAACP was
undertaken because two congressional leaders, whom he
declined to name, requested it. They were unhappy because
Bond criticized Bush in a speech in July 2004, saying his
administration preached racial neutrality and practiced
racial division.
``They write a new constitution of Iraq and they ignore the
Constitution at home,'' Bond said.
After filing four freedom-of-information requests, NAACP
lawyers discovered that far more than two members of Congress
called for an investigation and that all were Republicans.
Republican Sens. Lamar Alexander (Tenn.) and Susan Collins
(Maine) called for the investigation.
Others included Rep. Jo Ann S. Davis (R-Va.) and then-Rep.
Larry Combest (R-Tex.). Former GOP representatives Joe
Scarborough of Florida, who now hosts a talk show, and Robert
L. Ehrlich Jr., currently governor of Maryland, also
requested a probe.
The investigation started Oct. 8, 2004, a month before the
election. As the investigation dragged on into the following
February, the NAACP announced that it would not continue to
cooperate.
Angela Ciccolo, an NAACP lawyer, noted that although Bond's
remarks were made in July 2004, the investigation did not
begin until October, just when the NAACP was attempting to
register voters. ``The timing of the investigation is
critical,'' she said.
When the investigation started, Bush and the NAACP were
locked in a long-running feud that started shortly before the
president's first election victory in 2000.
During that campaign, the NAACP ran television spots
featuring the daughter of James Byrd Jr., a black man who was
dragged to death behind a pickup truck in Texas in 1998. She
criticized Bush, then governor of Texas, for not signing
hate-crime legislation.
The rift grew when the NAACP charged that Republicans in
Florida stole the 2000 election by turning black voters away
from the polls.
Recently, however, the relationship between the group and
Bush has begun to warm. Bush addressed the NAACP convention
in July for the first time in his six years in office,
avoiding becoming the first president since Warren G. Harding
to snub the group for an entire presidency.
``It's disappointing that the IRS took nearly two years to
conclude what we knew from the beginning: The NAACP did not
violate tax laws and continues to be politically
nonpartisan,'' said its president, Bruce S. Gordon.
CORRECTION-DATE: September 12, 2006; September 21, 2006
CORRECTION:
A Sept. 1 article incorrectly said that the Internal
Revenue Service had named the NAACP as a group whose tax-
exempt status was being investigated in response to questions
from congressmen. Though the NAACP's status was investigated,
the IRS did not name the group.
A Sept. 1 article incorrectly listed several Republicans as
having called for an Internal Revenue Service investigation
into the tax-exempt status of the NAACP. Named were Sens.
Lamar Alexander (Tenn.) and Susan Collins (Maine); Rep. Jo
Ann S. Davis (Va.);
[[Page S3404]]
and former representatives Larry Combest (Tex.), Joe
Scarborough (Fla.) and Robert L. Ehrlich Jr. (Md.). The
lawmakers forwarded complaints and requests for an
investigation from constituents to the IRS.
LOAD-DATE: September 1, 2006.
The PRESIDING OFFICER. The Senator from Florida.
Mr. RUBIO. Mr. President, reserving the right to object, and I will
not object to the unanimous consent request because of the importance
of this issue to many States in the country, let me close by saying
that we need to understand what happened here over the last 72 hours
and what we found out. Employees of the Internal Revenue Service made a
decision that they were going to specifically target groups who had
things like ``tea party'' and the word ``patriot'' in their
organization, groups who looked to do things like protect the
Constitution of the United States. This is outrageous.
There is growing evidence that higher-ups--significant people in the
IRS--knew about this and were not disclosing that to Members of
Congress. Members of this body were asking the IRS directly: Are you
involved in this? Is this happening? They were not giving us
information we now know they had.
I will not object to the unanimous consent request because of the
importance of this issue, but this issue will not and cannot go away
because of the importance of it.
The PRESIDING OFFICER. Is there objection to the request?
Without objection, it is so ordered.
The amendments were agreed to, as follows:
Amendment No. 847
(Purpose: To modify a provision relating to Northern Rockies headwaters
extreme weather mitigation)
On page 236, strike line 13 and insert the following:
(f) Effect of Section.--
(1) In general.--Nothing in this section replaces or
provides a substitute for the authority to carry out projects
under section 3110 of the Water Resources Development Act of
2007 (121 Stat. 1135).
(2) Funding.--The amounts made available to carry out this
section shall be used to carry out projects that are not
otherwise carried out under section 3110 of the Water
Resources Development Act of 2007 (121 Stat. 1135).
(g) Authorization of Appropriations.--There is
Amendment No. 899, as modified
(Purpose: To improve the bill)
On page 214, strike lines 15 through 20 and insert the
following:
``(d) Interim Adoption of Comprehensive Master Plan.--Prior
to completion of the comprehensive plan described under
subsection (a), the Secretary shall adopt the plan of the
State of Louisiana entitled `Louisiana's Comprehensive Master
Plan for a Sustainable Coast' in effect on the
On page 216, between lines 3 and 4, insert the following:
(c) Effect.--
(1) In general.--Nothing in this section or an amendment
made by this section authorizes the construction of a project
or program associated with a storm surge barrier across the
Lake Pontchartrain land bridge (including Chef Menteur Pass
and the Rigolets) that would result in unmitigated induced
flooding in coastal communities within the State of
Mississippi.
(2) Required consultation.--Any study to advance a project
described in paragraph (1) that is conducted using funds from
the General Investigations Account of the Corps of Engineers
shall include consultation and approval of the Governors of
the States of Louisiana and Mississippi.
On page 222, line 14, strike ``2018'' and insert ``2023''.
On page 239, strike lines 14 through 19 and insert the
following:
for the period beginning with fiscal year 2001 $450,000,000,
which shall--
``(1) be made available to the States and locales described
in subsection (b) consistent with program priorities
determined by the Secretary in accordance with criteria
developed by the Secretary to establish the program
priorities; and
``(2) remain available until expended.''.
On page 293, line 2, strike ``amount'' and insert ``amounts
remaining after the date of enactment of this Act''.
On page 347, line 12, strike ``or ecosystem restoration''
and insert ``ecosystem restoration, or navigation''.
Beginning on page 47, strike line 3 and all that follows
through page 53, line 13, and insert the following:
SEC. 2014. DAM OPTIMIZATION.
(a) Definition of Other Related Project Benefits.--In this
section, the term ``other related project benefits''
includes--
(1) environmental protection and restoration, including
restoration of water quality and water flows, improving
movement of fish and other aquatic species, and restoration
of floodplains, wetlands, and estuaries;
(2) increased water supply storage (except for any project
in the Apalachicola-Chattahoochee-Flint River system and the
Alabama-Coosa-Tallapoosa River system);
(3) increased hydropower generation;
(4) reduced flood risk;
(5) additional navigation; and
(6) improved recreation.
(b) Program.--
(1) In general.--The Secretary may carry out activities--
(A) to improve the efficiency of the operations and
maintenance of dams and related infrastructure operated by
the Corps of Engineers; and
(B) to maximize, to the extent practicable--
(i) authorized project purposes; and
(ii) other related project benefits.
(2) Eligible activities.--An eligible activity under this
section is any activity that the Secretary would otherwise be
authorized to carry out that is designed to provide other
related project benefits in a manner that does not adversely
impact the authorized purposes of the project.
(3) Impact on authorized purposes.--An activity carried out
under this section shall not adversely impact any of the
authorized purposes of the project.
(4) Effect.--
(A) Existing agreements.--Nothing in this section--
(i) supersedes or modifies any written agreement between
the Federal Government and a non-Federal interest that is in
effect on the date of enactment of this Act; or
(ii) supersedes or authorizes any amendment to a multistate
water-control plan, including the Missouri River Master Water
Control Manual (as in effect on the date of enactment of this
Act).
(B) Water rights.--Nothing in this section--
(i) affects any water right in existence on the date of
enactment of this Act;
(ii) preempts or affects any State water law or interstate
compact governing water; or
(iii) affects any authority of a State, as in effect on the
date of enactment of this Act, to manage water resources
within that State.
(5) Other laws.--
(A) In general.--An activity carried out under this section
shall comply with all other applicable laws (including
regulations).
(B) Water supply.--Any activity carried out under this
section that results in any modification to water supply
storage allocations at a reservoir operated by the Secretary
shall comply with section 301 of the Water Supply Act of 1958
(43 U.S.C. 390b).
(c) Policies, Regulations, and Guidance.--The Secretary
shall carry out a review of, and as necessary modify, the
policies, regulations, and guidance of the Secretary to carry
out the activities described in subsection (b).
(d) Coordination.--
(1) In general.--The Secretary shall--
(A) coordinate all planning and activities carried out
under this section with appropriate Federal, State, and local
agencies and those public and private entities that the
Secretary determines may be affected by those plans or
activities; and
(B) give priority to planning and activities under this
section if the Secretary determines that--
(i) the greatest opportunities exist for achieving the
objectives of the program, as specified in subsection (b)(1),
and
(ii) the coordination activities under this subsection
indicate that there is support for carrying out those
planning and activities.
(2) Non-federal interests.--Prior to carrying out an
activity under this section, the Secretary shall consult with
any applicable non-Federal interest of the affected dam or
related infrastructure.
(e) Reports.--
(1) In general.--Not later than 2 years after the date of
enactment of this Act and every 2 years thereafter, the
Secretary shall submit to Congress a report describing the
actions carried out under this section.
(2) Inclusions.--Each report under paragraph (1) shall
include--
(A) a schedule for reviewing the operations of individual
projects; and
(B) any recommendations of the Secretary on changes that
the Secretary determines to be necessary--
(i) to carry out existing project authorizations, including
the deauthorization of any water resource project that the
Secretary determines could more effectively be achieved
through other means;
(ii) to improve the efficiency of water resource project
operations; and
(iii) to maximize authorized project purposes and other
related project benefits.
(3) Updated report.--
(A) In general.--Not later than 2 years after the date of
enactment of this Act, the Secretary shall update the report
entitled ``Authorized and Operating Purposes of Corps of
Engineers Reservoirs'' and dated July 1992, which was
produced pursuant to section 311 of the Water Resources
Development Act of 1990 (104 Stat. 4639).
(B) Inclusions.--The updated report described in
subparagraph (A) shall include--
(i) the date on which the most recent review of project
operations was conducted and any recommendations of the
Secretary relating to that review the Secretary determines to
be significant; and
(ii) the dates on which the recommendations described in
clause (i) were carried out.
[[Page S3405]]
(f) Funding.--
(1) In general.--The Secretary may use to carry out this
section amounts made available to the Secretary from--
(A) the general purposes and expenses account;
(B) the operations and maintenance account; and
(C) any other amounts that are appropriated to carry out
this section.
(2) Funding from other sources.--The Secretary may accept
and expend amounts from non-Federal entities and other
Federal agencies to carry out this section.
(g) Cooperative Agreements.--The Secretary may enter into
cooperative agreements with other Federal agencies and non-
Federal entities to carry out this section.
amendment no. 895
(Purpose: To clarify the role of the Cherokee Nation of Oklahoma
regarding the maintenance of the W.D. Mayo Lock and Dam in the State of
Oklahoma)
At the end of title V, add the following:
SEC. 50___. RIGHTS AND RESPONSIBILITIES OF CHEROKEE NATION OF
OKLAHOMA REGARDING W.D. MAYO LOCK AND DAM,
OKLAHOMA.
Section 1117 of the Water Resources Development Act of 1986
(Public Law 99-662; 100 Stat. 4236) is amended to read as
follows:
``SEC. 1117. W.D. MAYO LOCK AND DAM, OKLAHOMA.
``(a) In General.--Notwithstanding any other provision of
law, the Cherokee Nation of Oklahoma has authorization--
``(1) to design and construct 1 or more hydroelectric
generating facilities at the W.D. Mayo Lock and Dam on the
Arkansas River in the State of Oklahoma, subject to the
requirements of subsection (b) and in accordance with the
conditions specified in this section; and
``(2) to market the electricity generated from any such
hydroelectric generating facility.
``(b) Preconstruction Requirements.--
``(1) In general.--The Cherokee Nation shall obtain any
permit required by Federal or State law before the date on
which construction begins on any hydroelectric generating
facility under subsection (a).
``(2) Review by secretary.--The Cherokee Nation may
initiate the design or construction of a hydroelectric
generating facility under subsection (a) only after the
Secretary reviews and approves the plans and specifications
for the design and construction.
``(c) Payment of Design and Construction Costs.--
``(1) In general.--The Cherokee Nation shall--
``(A) bear all costs associated with the design and
construction of any hydroelectric generating facility under
subsection (a); and
``(B) provide any funds necessary for the design and
construction to the Secretary prior to the Secretary
initiating any activities relating to the design and
construction of the hydroelectric generating facility.
``(2) Use by secretary.--The Secretary may--
``(A) accept funds offered by the Cherokee Nation under
paragraph (1); and
``(B) use the funds to carry out the design and
construction of any hydroelectric generating facility under
subsection (a).
``(d) Assumption of Liability.--The Cherokee Nation--
``(1) shall hold all title to any hydroelectric generating
facility constructed under this section;
``(2) may, subject to the approval of the Secretary, assign
that title to a third party;
``(3) shall be solely responsible for--
``(A) the operation, maintenance, repair, replacement, and
rehabilitation of any such facility; and
``(B) the marketing of the electricity generated by any
such facility; and
``(4) shall release and indemnify the United States from
any claims, causes of action, or liabilities that may arise
out of any activity undertaken to carry out this section.
``(e) Assistance Available.--Notwithstanding any other
provision of law, the Secretary may provide any technical and
construction management assistance requested by the Cherokee
Nation relating to the design and construction of any
hydroelectric generating facility under subsection (a).
``(f) Third Party Agreements.--The Cherokee Nation may
enter into agreements with the Secretary or a third party
that the Cherokee Nation or the Secretary determines to be
necessary to carry out this section.''.
amendment no. 894
(Purpose: To express the sense of Congress that, in recognition of the
contributions of Donald G. Waldon to the Tennessee-Tombigbee Waterway,
a lock and dam on that waterway should be designated as the ``Donald G.
Waldon Lock and Dam'')
At the end of title II, insert the following:
SEC. 2_____. DONALD G. WALDON LOCK AND DAM.
(a) Findings.--Congress finds that--
(1) the Tennessee-Tombigbee Waterway Development Authority
is a 4-State compact comprised of the States of Alabama,
Kentucky, Mississippi, and Tennessee;
(2) the Tennessee-Tombigbee Authority is the regional non-
Federal sponsor of the Tennessee-Tombigbee Waterway;
(3) the Tennessee-Tombigbee Waterway, completed in 1984,
has fueled growth in the United States economy by reducing
transportation costs and encouraging economic development;
and
(4) the selfless determination and tireless work of Donald
G. Waldon, while serving as administrator of the waterway
compact for 21 years, contributed greatly to the realization
and success of the Tennessee-Tombigbee Waterway.
(b) Sense of Congress.--It is the sense of Congress that,
at an appropriate time and in accordance with the rules of
the House of Representatives and the Senate, the lock and dam
located at mile 357.5 on the Tennessee-Tombigbee Waterway
should be known and designated as the ``Donald G. Waldon Lock
and Dam''.
amendment no. 867
(Purpose: To allow the Secretary to accept and expend non-Federal
amounts for repair, restoration, or replacement of certain water
resources projects)
At the end of title XI, add the following:
SEC. 11004. AUTHORITY TO ACCEPT AND EXPEND NON-FEDERAL
AMOUNTS.
The Secretary is authorized to accept and expend amounts
provided by non-Federal interests for the purpose of
repairing, restoring, or replacing water resources projects
that have been damaged or destroyed as a result of a major
disaster or other emergency if the Secretary determines that
the acceptance and expenditure of those amounts is in the
public interest.
amendment no. 872
(Purpose: To improve planning and administration relating to water
supply storage activities)
At the end of title II, add the following:
SEC. 2____. IMPROVING PLANNING AND ADMINISTRATION OF WATER
SUPPLY STORAGE.
(a) In General.--The Secretary shall carry out activities
to enable non-Federal interests to anticipate and accurately
budget for annual operations and maintenance costs and, as
applicable, repair, rehabilitation, and replacements costs,
including through--
(1) the formulation by the Secretary of a uniform billing
statement format for those storage agreements relating to
operations and maintenance costs, and as applicable, repair,
rehabilitation, and replacement costs, incurred by the
Secretary, which, at a minimum, shall include--
(A) a detailed description of the activities carried out
relating to the water supply aspects of the project;
(B) a clear explanation of why and how those activities
relate to the water supply aspects of the project; and
(C) a detailed accounting of the cost of carrying out those
activities; and
(2) a review by the Secretary of the regulations and
guidance of the Corps of Engineers relating to criteria and
methods for the equitable distribution of joint project costs
across project purposes in order to ensure consistency in the
calculation of the appropriate share of joint project costs
allocable to the water supply purpose.
(b) Report to Congress.--
(1) In general.--Not later than 1 year after the date of
enactment of this Act, the Secretary shall submit to Congress
a report on the findings of the reviews carried out under
subsection (a)(2) and any subsequent actions taken by the
Secretary relating to those reviews.
(2) Inclusions.--The report under paragraph (1) shall
include an analysis of the feasibility and costs associated
with the provision by the Secretary to each non-Federal
interest of not less than 1 statement each year that details
for each water storage agreement with non-Federal interests
at Corps of Engineers projects the estimated amount of the
operations and maintenance costs and, as applicable, the
estimated amount of the repair, rehabilitation, and
replacement costs, for which the non-Federal interest will be
responsible in that fiscal year.
(3) Extension.--The Secretary may delay the submission of
the report under paragraph (1) for a period not to exceed 180
days after the deadline described in paragraph (1), subject
to the condition that the Secretary submits a preliminary
progress report to Congress not later than 1 year after the
date of enactment of this Act.
Amendment No. 912
(Purpose: To authorize the Secretary to assist Indian tribes in
addressing shoreline erosion in the Upper Missouri River Basin)
On page 234, between lines 16 and 17, insert the following:
SEC. 5009. UPPER MISSOURI BASIN SHORELINE EROSION PREVENTION.
(a) In General.--
(1) Authorization of assistance.--The Secretary may provide
planning, design, and construction assistance to not more
than 3 federally-recognized Indian tribes in the Upper
Missouri River Basin to undertake measures to address
shoreline erosion that is jeopardizing existing
infrastructure resulting from operation of a reservoir
constructed under the Pick-Sloan Missouri River Basin Program
(authorized by section 9 of the Act of December 22, 1944
(commonly known as the ``Flood Control Act of 1944'') (58
Stat. 891, chapter 665)).
(2) Limitation.--The projects described in paragraph (1)
shall be economically justified, technically feasible, and
environmentally acceptable.
(b) Federal and Non-Federal Cost Share.--
(1) In general.--Subject to paragraph (2), the Federal
share of the costs of carrying out this section shall be not
less than 75 percent.
(2) Ability to pay.--The Secretary may adjust the Federal
and non-Federal shares of the costs of carrying out this
section in accordance with the terms and conditions of
[[Page S3406]]
section 103(m) of the Water Resources Development Act of 1986
(33 U.S.C. 2213(m)).
(c) Conditions.--The Secretary may provide the assistance
described in subsection (a) only after--
(1) consultation with the Department of the Interior; and
(2) execution by the Indian tribe of a memorandum of
agreement with the Secretary that specifies that the tribe
shall--
(A) be responsible for--
(i) all operation and maintenance activities required to
ensure the integrity of the measures taken; and
(ii) providing any required real estate interests in and to
the property on which such measures are to be taken; and
(B) hold and save the United States free from damages
arising from planning, design, or construction assistance
provided under this section, except for damages due to the
fault or negligence of the United States or its contractors.
(d) Authorization of Appropriations.--For each Indian tribe
eligible under this section, there is authorized to be
appropriated to carry out this section not more than
$30,000,000.
Amendment No. 880
(Purpose: To deauthorize portions of the project for East Fork of
Trinity River, Texas)
At the end of title III, add the following:
SEC. 3___. EAST FORK OF TRINITY RIVER, TEXAS.
The portion of the project for flood protection on the East
Fork of the Trinity River, Texas, authorized by section 203
of the Flood Control Act of 1962 (76 Stat. 1185), that
consists of the 2 levees identified as ``Kaufman County
Levees K5E and K5W'' shall no longer be authorized as a part
of the Federal project as of the date of enactment of this
Act.
Amendment No. 904
(Purpose: To declare certain areas in Seward, Alaska, as nonnavigable
waters of the United States for purposes of navigational servitude)
At the end of title III, add the following:
SEC. 3010. SEWARD WATERFRONT, SEWARD, ALASKA.
(a) In General.--The parcel of land included in the Seward
Harbor, Alaska navigation project identified as Tract H,
Seward Original Townsite, Waterfront Park Replat, Plat No
2012-4, Seward Recording District, shall not be subject to
the navigation servitude (as of the date of enactment of this
Act).
(b) Entry by Federal Government.--The Federal Government
may enter upon any portion of the land referred to in
subsection (a) to carry out any required operation and
maintenance of the general navigation features of the
project.
Amendment No. 884
(Purpose: To require the closure of the Upper St. Anthony Falls Lock
and Dam if certain conditions are met)
At the appropriate place, insert the following:
SEC. ____. UPPER MISSISSIPPI RIVER PROTECTION.
(a) Definition of Upper St. Anthony Falls Lock and Dam.--In
this section, the term ``Upper St. Anthony Falls Lock and
Dam'' means the lock and dam located on Mississippi River
mile 853.9 in Minneapolis, Minnesota.
(b) Economic Impact Study.--Not later than 180 days after
the date of enactment of this Act, the Secretary shall submit
to Congress a report regarding the impact of closing the
Upper St. Anthony Falls Lock and Dam on the economic and
environmental well-being of the State of Minnesota.
(c) Mandatory Closure.--Notwithstanding subsection (b) and
not later than 1 year after the date of enactment of this
Act, the Secretary shall close the Upper St. Anthony Falls
Lock and Dam if the Secretary determines that the annual
average tonnage moving through the Upper St. Anthony Falls
Lock and Dam for the preceding 5 years is not more than
1,500,000 tons.
(d) Emergency Operations.--Nothing in this section prevents
the Secretary from carrying out emergency lock operations
necessary to mitigate flood damage.
Amendment No. 870, As Modified
(Purpose: To modify a provision relating to Harbor Maintenance Trust
Fund prioritization)
Beginning on page 299, strike line 9 and all that follows
through page 301, line 16, and insert the following:
``(D) Low-use port.--The term `low-use port' means a port
at which not more than 1,000,000 tons of cargo are
transported each calendar year.
``(E) Moderate-use port.--The term `moderate-use port'
means a port at which more than 1,000,000, but fewer than
10,000,000, tons of cargo are transported each calendar year.
``(2) Priority.--Of the amounts made available under this
section to carry out projects described in subsection (a)(2)
that are in excess of the amounts made available to carry out
those projects in fiscal year 2012, the Secretary of the
Army, acting through the Chief of Engineers, shall give
priority to those projects in the following order:
``(A)(i) In any fiscal year in which all projects subject
to the harbor maintenance fee under section 24.24 of title
19, Code of Federal Regulations (or a successor regulation)
are not maintained to their constructed width and depth, the
Secretary shall prioritize amounts made available under this
section for those projects that are high-use deep draft and
are a priority for navigation in the Great Lakes Navigation
System.
``(ii) Of the amounts made available under clause (i)--
``(I) 80 percent shall be used for projects that are high-
use deep draft; and
``(II) 20 percent shall be used for projects that are a
priority for navigation in the Great Lakes Navigation System.
``(B) In any fiscal year in which all projects identified
as high-use deep draft are maintained to their constructed
width and depth, the Secretary shall--
``(i) equally divide among each of the districts of the
Corps of Engineers in which eligible projects are located 10
percent of remaining amounts made available under this
section for moderate-use and low-use port projects--
``(I) that have been maintained at less than their
constructed width and depth due to insufficient federal
funding during the preceding 6 fiscal years; and
``(II) for which significant State and local investments in
infrastructure have been made at those projects during the
preceding 6 fiscal years; and
``(ii) prioritize any remaining amounts made available
under this section for those projects that are not maintained
to the minimum width and depth necessary to provide
sufficient clearance for fully loaded commercial vessels
using those projects to maneuver safely.
``(3) Administration.--For purposes of this subsection,
State and local investments in infrastructure shall include
infrastructure investments made using amounts made available
for activities under section 105(a)(9) of the Housing and
Community Development Act of 1974 (42 U.S.C. 5305(a)(9)).
``(4) Exceptions.--The Secretary may prioritize a project
not identified in paragraph (2) if the Secretary determines
that funding for the project is necessary to address--
``(A) hazardous navigation conditions; or
``(B) impacts of natural disasters, including storms and
droughts.
``(5) Reports to congress.--Not later than September 30,
2013, and annually thereafter, the Secretary shall submit to
Congress a report that describes, with respect to the
preceding fiscal year--
``(A) the amount of funds used to maintain high-use deep
draft projects and projects at moderate-use ports and low-use
ports to the constructed depth and width of the projects;
``(B) the respective percentage of total funds provided
under this section used for high use deep draft projects and
projects at moderate-use ports and low-use ports;
``(C) the remaining amount of funds made available to carry
out this section, if any; and
``(D) any additional amounts needed to maintain the high-
use deep draft projects and projects at moderate-use ports
and low-use ports to the constructed depth and width of the
projects.''.
amendment no. 911, as modified
(Purpose: To provide Crediting Authority for Federally Authorized
Navigation Projects)
At the appropriate place, insert:
CREDITING AUTHORITY FOR FEDERALLY AUTHORIZED NAVIGATION
PROJECTS
Sec. __. A non-Federal interest for a navigation project
may carry out operation maintenance activities for that
project subject to all applicable requirements that would
apply to the Secretary carrying out such operations and
maintenance, and may receive credit for the costs incurred by
the non-Federal interest in carrying out such activities
towards that non-Federal interest's share of construction
costs for a federally authorized element of the same project
or another federally authorized navigation project, except
that in no instance may such credit exceed 20 percent of the
costs associated with construction of the general navigation
features of the project for which such credit may be received
pursuant to this section.
amendment no. 882
(Purpose: To modify the allocation of funds to the Susquehanna River
Basin Commission, Delaware River Basin Commission, and the Interstate
Commission on the Potomac River Basin to fulfill equitable funding
requirements of the respective interstate compacts of the Commissions)
On page 190, after line 23, add the following:
SEC. 20__. RIVER BASIN COMMISSIONS.
Section 5019 of the Water Resources Development Act of 2007
(121 Stat. 1201) is amended by striking subsection (b) and
inserting the following:
``(b) Authorization to Allocate.--
``(1) In general.--Subject to paragraph (2), the Secretary
shall allocate funds from the General Expenses account of the
civil works program of the Army Corps of Engineers to the
Susquehanna River Basin Commission, Delaware River Basin
Commission, and the Interstate Commission on the Potomac
River Basin to fulfill the equitable funding requirements of
the respective interstate compacts on an annual basis and in
amounts equal to the amount determined by Commission in
accordance with the respective interstate compact.
``(2) Limitation.--Not more than 1.5 percent of funds from
the General Expenses account of the civil works program of
the Army Corps of Engineers may be allocated in carrying out
paragraph (1) for any fiscal year.
[[Page S3407]]
``(3) Report.--For any fiscal year in which funds are not
allocated in accordance with paragraph (1), the Secretary
shall submit to the Committee on Environment and Public Works
of the Senate and the Committee on Transportation and
Infrastructure of the House of Representatives a report that
describes--
``(A) the reasons why the Corps of Engineers chose not to
allocate funds in accordance with that paragraph; and
``(B) the impact of the decision not to allocate funds on
water supply allocation, water quality protection, regulatory
review and permitting, water conservation, watershed
planning, drought management, flood loss reduction, and
recreation in each area of jurisdiction of the respective
Commission.''.
AMENDMENT NO. 903, AS MODIFIED
(Purpose: To authorize the Secretary to enter into deep draft port
development partnerships)
On page 243, between lines 18 and 19, insert the following:
SEC. 5017. ARCTIC DEEP DRAFT PORT DEVELOPMENT PARTNERSHIPS.
(a) In General.--The Secretary may provide technical
assistance, including planning, design, and construction
assistance, to non-Federal public entities, including Indian
tribes (as defined in section 4 of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 450b)),
for the development, construction, operation, and maintenance
of channels, harbors, and related infrastructure associated
with deep draft ports for purposes of dealing with Arctic
development and security needs.
(b) Acceptance of Funds.--The Secretary is authorized to
accept and expend funds provided by non-Federal public
entities, including Indian tribes (as defined in section 4 of
the Indian Self-Determination and Education Assistance Act
(25 U.S.C. 450b)), to carry out the activities described in
subsection (a).
(c) Limitation.--No assistance may be provided under this
section until after the date on which the entity to which
that assistance is to be provided enters into a written
agreement with the Secretary that includes such terms and
conditions as the Secretary determines to be appropriate and
in the public interest.
(d) Prioritization.--The Secretary shall prioritize Arctic
deep draft ports identified by the Army Corps, The Department
of Homeland Security and the Department of Defense.
AMENDMENT NO. 906, AS MODIFIED
(Purpose: To provide for a severe flooding and drought management study
of the greater Mississippi River Basin)
At the end of title V, add the following:
SEC. 5_____. GREATER MISSISSIPPI RIVER BASIN SEVERE FLOODING
AND DROUGHT MANAGEMENT STUDY.
(a) Definitions.--In this section:
(1) Greater mississippi river basin.--The term ``greater
Mississippi River Basin'' means the area covered by
hydrologic units 5, 6, 7, 8, 10, and 11, as identified by the
United States Geological Survey as of the date of enactment
of this Act.
(2) Lower mississippi river.--The term ``lower Mississippi
River'' means the portion of the Mississippi River that
begins at the confluence of the Ohio River and flows to the
Gulf of Mexico.
(3) Middle mississippi river.--The term ``middle
Mississippi River'' means the portion of the Mississippi
River that begins at the confluence of the Missouri River and
flows to the lower Mississippi River.
(4) Severe flooding and drought.--The term ``severe
flooding and drought'' means severe weather events that
threaten personal safety, property, and navigation on the
inland waterways of the United States.
(b) In General.--The Secretary shall carry out a study of
the greater Mississippi River Basin--
(1) to improve the coordinated and comprehensive management
of water resource projects in the greater Mississippi River
Basin relating to severe flooding and drought conditions; and
(2) to evaluate the feasibility of any modifications to
those water resource projects, consistent with the authorized
purposes of those projects, and develop new water resource
projects to improve the reliability of navigation and more
effectively reduce flood risk.
(c) Contents.--The study shall--
(1) identify any Federal actions that are likely to prevent
and mitigate the impacts of severe flooding and drought,
including changes to authorized channel dimensions,
operational procedures of locks and dams, and reservoir
management within the greater Mississippi River Basin,
consistent with the authorized purposes of the water resource
projects;
(2) identify and make recommendations to remedy challenges
to the Corps of Engineers presented by severe flooding and
drought, including river access, in carrying out its mission
to maintain safe, reliable navigation, consistent with the
authorized purposes of the water resource projects in the
greater Mississippi River Basin; and
(3) identify and locate natural or other physical
impediments along the middle and lower Mississippi River to
maintaining navigation on the middle and lower Mississippi
River during periods of low water.
(d) Consultation and Use of Existing Data.--In carrying out
the study, the Secretary shall--
(1) consult with appropriate committees of Congress,
Federal, State, tribal, and local agencies, environmental
interests, agricultural interests, recreational interests,
river navigation industry representatives, other shipping and
business interests, organized labor, and nongovernmental
organizations;
(2) to the maximum extent practicable, use data in
existence as of the date of enactment of this Act; and
(3) incorporate lessons learned and best practices
developed as a result of past severe flooding and drought
events, including major floods and the successful effort to
maintain navigation during the near historic low water levels
on the Mississippi River during the winter of 2012-2013.
(e) Cost-sharing.--The Federal share of the cost of
carrying out the study under this section shall be 100
percent.
(f) Report.--Not later than 3 years after the date of
enactment of this Act, the Secretary shall submit to Congress
a report on the study carried out under this section.
(g) Savings Clause.--Nothing in this section impacts the
operations and maintenance of the Missouri River Mainstem
System, as authorized by the Act of December 22, 1944 (58
Stat. 897, chapter 665).
AMENDMENT NO. 893
(Purpose: To provide for the policy relating to the Harbor Maintenance
Trust Fund prioritization)
On page 297, between lines 19 and 20, insert the following:
(a) Policy.--It is the policy of the United States that the
primary use of the Harbor Maintenance Trust Fund is for
maintaining the constructed widths and depths of the
commercial ports and harbors of the United States, and those
functions should be given first consideration in the
budgeting of Harbor Maintenance Trust Fund allocations.
amendment no. 898
(Purpose: To provide for the reopening of the Cape Arundel Disposal
Site as a dredged material disposal site)
At the end of title V, add the following:
SEC. 50___. CAPE ARUNDEL DISPOSAL SITE, MAINE.
(a) In General.--The Secretary, in concurrence with the
Administrator of the Environmental Protection Agency, is
authorized to reopen the Cape Arundel Disposal Site selected
by the Department of the Army as an alternative dredged
material disposal site under section 103(b) of the Marine
Protection, Research, and Sanctuaries Act of 1972 (33 U.S.C.
1413(b)) (referred to in this section as the ``Site'').
(b) Deadline.--The Site may remain open under subsection
(a) until the earlier of--
(1) the date on which the Site does not have any remaining
disposal capacity;
(2) the date on which an environmental impact statement
designating an alternative dredged material disposal site for
southern Maine has been completed; or
(3) the date that is 5 years after the date of enactment of
this Act.
(c) Limitations.--The use of the Site as a dredged material
disposal site under subsection (a) shall be subject to the
conditions that--
(1) conditions at the Site remain suitable for the
continued use of the Site as a dredged material disposal
site; and
(2) the Site not be used for the disposal of more than
80,000 cubic yards from any single dredging project.
amendment no. 861 as modified
(Purpose: To improve a provision relating to project acceleration)
On page 121, strike lines 1 through 3, and insert the
following:
``(II) conflict with the ability of a cooperating agency to
carry out applicable Federal laws (including regulations).
On page 138, between lines 3 and 4, insert the following:
``(q) Authorization.--The authority provided by this
section expires on the date that is 10 years after the date
of enactment of this Act.
amendment no. 907
(Purpose: To provide for future project authorizations)
At the end of title I insert the following:
SEC. 2____. FUTURE PROJECT AUTHORIZATIONS.
(a) Policy.--The benefits of water resource projects
designed and carried out in an economically justifiable,
environmentally acceptable, and technically sound manner are
important to the economy and environment of the United States
and recommendations to Congress regarding those projects
should be expedited for approval in a timely manner.
(b) Applicability.--The procedures under this section apply
to projects for water resources development, conservation,
and other purposes, subject to the conditions that--
(1) each project is carried out--
(A) substantially in accordance with the plan identified in
the report of the Chief of Engineers for the project; and
(B) subject to any conditions described in the report for
the project; and
(2)(A) a report of the Chief of Engineers has been
completed; and
(B) after the date of enactment of this Act, the Assistant
Secretary of the Army for Civil Works has submitted to
Congress a recommendation to authorize construction of the
project.
(c) Expedited Consideration.--
[[Page S3408]]
(1) In general.--A bill shall be eligible for expedited
consideration in accordance with this subsection if the
bill--
(A) authorizes a project that meets the requirements
described in subsection (b); and
(B) is referred to the Committee on Environment and Public
Works of the Senate.
(2) Committee consideration.--
(A) In general.--Not later than January 31st of the second
session of each Congress, the Committee on Environment and
Public Works of the Senate shall--
(i) report all bills that meet the requirements of
paragraph (1); or
(ii) introduce and report a measure to authorize any
project that meets the requirements described in subsection
(b).
(B) Failure to act.--Subject to subparagraph (C), if the
Committee fails to act on a bill that meets the requirements
of paragraph (1) by the date specified in subparagraph (A),
the bill shall be discharged from the Committee and placed on
the calendar of the Senate.
(C) Exceptions.--Subparagraph (B) shall not apply if--
(i) in the 180-day period immediately preceding the date
specified in subparagraph (A), the full Committee holds a
legislative hearing on a bill to authorize all projects that
meet the requirements described in subsection (b);
(ii)(I) the Committee favorably reports a bill to authorize
all projects that meet the requirements described in
subsection (b); and
(II) the bill described in subclause (I) is placed on the
calendar of the Senate; or
(iii) a bill that meets the requirements of paragraph (1)
is referred to the Committee not earlier than 30 days before
the date specified in subparagraph (A).
(d) Termination.--The procedures for expedited
consideration under this section terminate on December 31,
2018.
amendment no. 896
(Purpose: To require the Government Accountability Office to carry out
a study evaluating the effectiveness of activities funded by the Harbor
Maintenance Trust Fund in maximizing economic growth and job creation
in port communities)
At the end of title VIII, add the following:
SEC. 8____. HARBOR MAINTENANCE TRUST FUND STUDY.
(a) Definitions.--In this section:
(1) Low-use port.--The term ``low-use port'' means a port
at which not more than 1,000,000 tons of cargo are
transported each calendar year.
(2) Moderate-use port.--The term ``moderate-use port''
means a port at which more than 1,000,000, but fewer than
10,000,000, tons of cargo are transported each calendar year.
(b) Study.--Not later than 270 days after the date of
enactment of this Act, the Comptroller General of the United
States shall carry out a study and submit to Congress a
report that--
(1) evaluates the effectiveness of activities funded by the
Harbor Maintenance Trust Fund in maximizing economic growth
and job creation in the communities surrounding low- and
moderate-use ports; and
(2) includes recommendations relating to the use of amounts
in the Harbor Maintenance Trust Fund to increase the
competitiveness of United States ports relative to Canadian
and Mexican ports.
Mrs. BOXER. Mr. President, it is my understanding--and I ask the
floor staff to correct me--is it so that we just now passed the first
number of amendments that don't require votes? Was that just done in
the unanimous consent? Is that correct?
The PRESIDING OFFICER. The Senator is correct.
Mrs. BOXER. I am very pleased with that. We had about 15 of these
amendments--quite bipartisan. Half of the amendments were Democratic
and half Republican, so that is good.
Now what we are going to do is take up the amendments that require
votes. It is my understanding that Senator Vitter wants to speak on the
Barrasso amendment, which is fine.
I say to my colleagues through the Chair that they now have
approximately 2 hours to come down and make the case on their votes.
Senators Inhofe, Barrasso, Sanders, Coburn, Boozman, Merkley, Udall,
and Hoeven is where we are. If they wish to be heard, then it is time
to come over and be heard.
At this time, I yield the floor.
The PRESIDING OFFICER. The Senator from Louisiana.
Mr. VITTER. Mr. President, first of all, let me thank my colleague
from California, the chair, and all of my colleagues for allowing us to
move forward with a very open amendment process. It is not quite as
open a process as I would have wanted--namely on the Landrieu amendment
because of the objection from my colleague from Pennsylvania. By any
Senate standard, this has been a very open amendment process, and that
is very healthy.
I join the chair in urging all of our colleagues who would like to
debate upcoming votes to come to the floor now. The time is between now
and 5 p.m. Please come to the floor. I am doing that right now. I want
to talk about one of those amendments on which we will vote, the
Barrasso amendment, which is about waters of the United States. This is
an important issue.
John Barrasso and I and many others believe the EPA should not be
able to define and expand its regulatory jurisdiction--in this case, we
are talking about the Clean Water Act--without undertaking a formal
rulemaking process that provides individuals, businesses, and other
stakeholders the opportunity to give meaningful input.
The Clean Water Act authorizes the EPA to regulate the discharge of
pollutants into ``navigable waters.'' Again, that is a very clear
term--``navigable waters.'' The act defines ``navigable waters'' as
``the waters of the United States, including the territorial seas.''
The trouble is clearly understanding what constitutes the waters of the
United States. For decades, courts have considered the meaning of ``the
waters of the United States,'' and yet uncertainty still remains.
Recently, in 2006--about 7 years ago--in the Rapanos decision, the
Supreme Court considered whether the Army Corps of Engineers properly
determined the wetlands in Michigan as being waters of the United
States. Although the Court determined that the corps viewed its
regulatory authority under the Clean Water Act too broadly, a majority
of the Justices still could not come to a precise agreement into
exactly what ``waters of the United States'' means. So they agreed
about what it didn't mean in the context of that case--that the corps
had gone too far afield--but they didn't clearly agree on exactly what
it meant.
More recently, Justice Alito, in the Sackett case, observed that the
reach of the Clean Water Act remains ``notoriously unclear.'' Justice
Alito and others have called on Congress to examine the Clean Water Act
statutory language to make it precise and clear up the confusion. He
also noted that EPA ``has not seen fit to promulgate a rule providing a
clear and sufficiently limited definition of the phrase''--that phrase
being ``the waters of the United States.''
Instead, the EPA has done something different. Unfortunately, this is
a trend at the EPA. The EPA issued what it calls guidance on this
issue. Now, according to the EPA, the guidance ``clarifies how the EPA
and Corps understand existing requirements of the Clean Water Act and
the agencies' implementing regulations'' in light of relevant
decisions.
The problem is this: Guidance is short of what the EPA should do,
which is to promulgate rules and regs. It is short of that for a very
particular reason--because there is no clear-cut, nailed-down process
for guidance. The EPA can just make up what it wants without having to
take input from affected parties. Under the law, there are clear-cut
guidelines and rules for promulgating rules and regulations, and that
is what the EPA should do.
In this instance, there are two problems. First of all, the guidance
is simply mistaken. It is way too expansive, in the view of many folks,
including myself and the author of this amendment, Senator Barrasso.
Also, very importantly, guidance doesn't have to go through a process.
Guidance doesn't illicit input from citizens, impacted parties, and
stakeholders. That is another crucial issue involved.
This Barrasso amendment would clear up that point on two fronts. It
would go to the substance of the guidance--and we think EPA is getting
it wrong with regard to that substance--but it would also help
underscore that there is a process for the EPA to issue rules and
regulations, and that is what the EPA should be doing on important
matters such as this--not shortcutting, circumventing that process by
simply issuing guidance.
So if the EPA wishes to examine the meaning of ``waters of the United
States'' in the Clean Water Act, it needs to do so in a fair and
transparent manner, and in a way that provides all Americans the chance
to offer meaningful regulatory input. Guidance doesn't do that. This
guidance gets it wrong. But, just as importantly, guidance doesn't
fulfill the need for transparency and openness and the ability to
accept input. This Barrasso amendment would provide EPA with precisely
that opportunity: Make them accept
[[Page S3409]]
input and make them get it right. That is why I strongly support the
Barrasso amendment.
Again, I invite all of our colleagues to come down to the floor to
debate any part of this bill, any aspect of pending amendments. We are
open for business now until 5 p.m. I think that is going to be a lot of
time. We will have a series of votes starting today and going into
tomorrow, and I very much appreciate the chair of the committee and
others who have allowed this very open amendment process on the floor
of the Senate.
With that, 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. BARRASSO. 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. 868
Mr. BARRASSO. Mr. President, I wish to call up amendment No. 868.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Wyoming [Mr. Barrasso], for himself, Mr.
Sessions, Mr. Vitter, Mr. Crapo, Mrs. Fischer, and Mr.
Wicker, proposes an amendment numbered 868.
Mr. BARRASSO. I ask unanimous consent that the reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To preserve existing rights and responsibilities with respect
to waters of the United States)
On page 452, between lines 14 and 15, insert the following:
SEC. 2055. IDENTIFICATION OF WATERS PROTECTED BY THE CLEAN
WATER ACT.
(a) In General.--Neither the Secretary of the Army nor the
Administrator of the Environmental Protection Agency shall--
(1) finalize the proposed guidance described in the notice
of availability and request for comments entitled ``EPA and
Army Corps of Engineers Guidance Regarding Identification of
Waters Protected by the Clean Water Act'' (EPA-HQ-OW-2011-
0409) (76 Fed. Reg. 24479 (May 2, 2011)); or
(2) use the guidance described in paragraph (1), or any
substantially similar guidance, as the basis for any decision
regarding the scope of the Federal Water Pollution Control
Act (33 U.S.C. 1251 et seq.) or any rulemaking.
(b) Rules.--The use of the guidance described in subsection
(a)(1), or any substantially similar guidance, as the basis
for any rule shall be grounds for vacation of the rule.
Mr. BARRASSO. Mr. President, this amendment restricts expansion of
Federal authority, and it is a Federal authority attempting to
encompass all the wet areas of farms, ranches, and suburban homes all
across America, so this amendment is designed to restrict that
expansion of Federal authority.
Specifically, the amendment eliminates this administration's guidance
to implement this expansion of Federal authority. Through proposed
guidance--that is the key phrase here, ``guidance''--Federal agencies
are preparing to expand the definition of ``waters of the United
States.'' I think it would make sense that people would inherently
understand what waters of the United States would be. But the Federal
Government is preparing to expand the definition to include ditches,
including dry areas--other dry areas where water happens to flow and
when it only flows even for a short duration after a rainfall. The
American people know that should not be considered waters of the United
States. Federal regulations have never defined ditches and other upland
drainage features as ``waters of the United States.'' But this draft
guidance coming out of Washington does do that, and it will have a huge
impact on farmers, ranchers, and small businesses that need to put a
shovel in the ground to make a living. The EPA and the Army Corps of
Engineers' guidance amounts to a Federal user fee for farmers and
ranchers to farm the land they own.
Just as troubling as ignoring congressional intent, the guidance
absolutely disregards the fundamental tenet embodied in two decisions
of the U.S. Supreme Court. One is the SWANCC decision and the other is
the Rapanos decision. Those are decisions that say there are actual
limits to Federal jurisdiction. It is particularly troubling to me and
to others around the country--and certainly at home in Wyoming it is
particularly troubling--that the guidance allows the Army Corps of
Engineers and the EPA to regulate waters now considered entirely under
State jurisdiction. As somebody who has served in the State
legislature, talking to the Presiding Officer as someone who has served
as a Governor of his State, we know the key importance of State
jurisdiction in making local decisions.
This guidance would grant the Environmental Protection Agency and the
U.S. Corps of Engineers virtually unlimited--virtually unlimited--
regulatory control over all wet areas within a State.
In addition, if this guidance is allowed to go forward--the guidance
I am attempting to prevent to protect Americans from today--enormous
resources are going to be needed to expand the Clean Water Act Federal
regulatory program, which could lead to longer delays, and the delays
today are significant. Increased delays in securing permits are going
to impede a host of economic activities in Wyoming as well as in all of
our other States. Commercial and residential real estate development,
agriculture, electric transmission, transportation, and mining will all
be affected. These are not sectors of our economy we ever want to
deliberately hurt, but we certainly would not want to vote for guidance
that would harm these sectors while we are in economic times such as
these.
That is why I come to the floor with this amendment. I will be urging
a ``yes'' vote on this amendment No. 868 at the appropriate time, to
continue with the rights and responsibilities of the States and the
private landowners impacting this significant water which is the
lifeblood of our States.
Thank you very much. I yield the floor, and I note the absence of a
quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mrs. BOXER. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. BOXER. Mr. President, I rise now to speak in opposition to the
Barrasso amendment No. 868 and to explain why.
Before I talk about why I hope the Senate will defeat this amendment,
I wish to thank my colleagues on both sides of the aisle for working so
closely with me and with Senator Vitter.
The underlying bill is a very good bill and it protects every State.
We look at every State's needs. Whether it is flooding, whether it is
preserving fishing, whether it is about ports, whether the ports are
inland or coastal, medium, small, or large, we have gone out of our way
on both sides of the aisle to accommodate Senators.
I wish to speak about Barrasso amendment No. 868, which will be the
first amendment to come before us.
It is an anti-environmental rider. Now, here we go again, again and
again and again. There is no reason to bring these anti-environmental
riders onto every single piece of legislation that goes through here,
but yet that is what we face. So I agreed that we would have a vote on
this in the spirit of good faith because it certainly is not germane to
this bill. It is not.
It has to do with the Clean Water Act. It does not have to do with
the Water Resources Development Act. This Barrasso amendment says the
guidance that has been developed by the Army Corps of Engineers and by
the Environmental Protection Agency as they get ready for a rulemaking
after a Court decision is null and void--without a hearing, without
giving the corps a chance to explain their guidance, without giving the
EPA a chance to explain their guidance. Without looking at the Court's
decision his amendment would say the guidance is blocked because he
does not like the guidance.
Well, trust me. I am sure I do not like everything in the guidance
either. But let the process go forward. The guidance is necessary so
there can be a rulemaking, which is essential. Right now there is
nothing but chaos after the Court's ruling. People do not know what the
Clean Water Act covers.
So the Army Corps, working with the EPA, has issued some guidance. It
is
[[Page S3410]]
not the final rule, it is guidance. The Barrasso amendment throws the
guidance out, throws it into the garbage can, says it cannot be used.
If anything like it is ever used, there can be no rulemaking. The
Barrasso amendment stops, therefore, the rulemaking. He may not say it
explicitly, but if you cannot use any of the guidance, any of the work
that has been done, then you cannot have a rule.
Let me tell you who opposes not having a rule: the business
community. The business community opposes it. Everyone opposes it.
Everybody wants a rule. The vague restriction will make it impossible
to initiate a rulemaking, to define what waters are protected under the
Clean Water Act. The Barrasso amendment locks into place the current
confusion created in the wake of two Supreme Court decisions. He does
it by prohibiting any future update of the Clean Water Act regulations
or related guidance.
Industry associations and 30 Republican Senators who are opposed to
the guidance developed by the Obama administration have called for a
rulemaking. They have called for a rulemaking. The letters were just
sent to the EPA last month. What we believe to be absolutely accurate
is if you throw out the guidance, if you vote for this Barrasso
amendment and you say no guidance that looks anything like this will
ever be used, there can be no rulemaking.
For decades the Clean Water Act has provided broad protections for
the Nation's waters. The Barrasso amendment stops the corps from
restoring these longstanding protections, leaving many waters at risk.
Let me tell you what that means. Streams that provide drinking water
for up to 117 million Americans may not be covered by the Clean Water
Act. That is dangerous for the people because there is all kinds of
pollution that gets dumped into these streams. There are 20 million
acres of wetlands that provide flood protection and serve as wildlife
habitat. There will be no rules governing them because of the way the
Barrasso amendment is written.
Any effort to clear up uncertainty that has resulted in delays and
confusion and slowed efforts to hold polluters accountable will be null
and void, can have no effect. You cannot use the guidance. You have to
throw it away. If anything comes forward that remotely resembles it,
you have to throw it away. Then you cannot make a rule. This is
harmful.
In closing, I want to talk about from what harm we want to protect
the people. We know some of the dangerous pollution that gets dumped
into our Nation's waters sometimes on purpose, sometimes on accident.
But we have chemical pollution and all kinds of industrial pollution.
It includes such chemicals as arsenic--very dangerous for people. I
will have more to say on the specifics, but we know there is waterborne
disease. People get very ill if the drinking water is not good, if the
swimming water is not good. The warmer our waters are getting, the more
dangerous it is. Certain organisms that live in these warmer waters
never existed before.
We had a case in Ohio where a child got deathly ill because the water
was so warm it attracted these different kinds of bacteria and
organisms. So when I stand here, I speak from the heart. All of us do.
But I know we should not vote on something that precludes us from
protecting the health and safety and the lives of our people who are
the most vulnerable, the children--the children, the pregnant women,
the elderly. My goodness, if we are here for any reason, it would
certainly be to do no harm to them.
The Barrasso amendment does a lot of harm. It does not belong on the
Water Resources Development Act, which is about building projects to
protect people using flood control. It is about dredging our waters. It
is making sure commerce can move. This is an anti-environmental rider.
It does not belong on this bill. It is dangerous for the people.
I urge my colleagues to vote no when the vote comes before us.
I yield the floor.
The PRESIDING OFFICER. The Senator from Texas.
Internal Revenue Service Activities
Mr. CORNYN. Mr. President, I see the Senator from Vermont here. I
will not be long. I did have a few comments to offer about the unusual
developments of the last few days in Washington, DC. Back in 2011 and
2012 my office was contacted by some constituents who were active
politically with organizers such as the King Street Patriots, True the
Vote, the tea party, particularly in Waco and San Antonio. They were
concerned that they were being targeted by the Federal Government,
specifically the Internal Revenue Service, for their political
activity. They were concerned that the activities of the Internal
Revenue Service seemed excessive, unreasonable, and improper. They
feared the government officials were targeting them for doing nothing
more than exercising their constitutional rights under the First
Amendment of the Constitution.
So I did what I think any Senator would do, any Member of Congress: I
wrote a letter to the Internal Revenue Service and asked them, first of
all, about any indication they had that this was the case. Douglas
Shulman, the Commissioner of the Internal Revenue Service, testified
later before Congress and categorically denied any type of targeting
was, in fact, taking place.
Well, last Friday we learned that my constituents were correct and
the Internal Revenue Service was wrong. It turns out the Internal
Revenue Service really was targeting American citizens for exercising
their most fundamental rights. Even though the Internal Revenue Service
did not acknowledge this until last Friday, the Associated Press has
reported that senior agency officials learned about the abuses as early
as June 2011, nearly 2 years ago.
Let me be clear. These abuses are not simply inappropriate, they are
a breach of faith with the American people. They are potentially
violations of our criminal law.
Now, as my friend from Vermont knows, if the IRS, if the government
can target conservative groups such as the King Street Patriots and the
tea party, they can target anybody anywhere across the political
spectrum. That is why you are seeing such bipartisan outrage over this
news. But not only was the IRS targeting tea party groups, they
targeted other people based on their advocacy of restoring the Federal
Government to its basic constitutional framework, people concerned
about government spending. Meanwhile, there is evidence that the IRS
also in some cases targeted Jewish organizations as well. I would hope
we would all on a bipartisan basis rise and say this is unacceptable
and it is immoral. It is the kind of behavior we associate not with the
greatest democracy in the world but with corrupt tin-pot dictators.
President Obama has said, to his credit, that all guilty parties will
be held fully accountable. Well, I wish I could take some comfort from
the President's comments. Unfortunately, the administration has
repeatedly stonewalled and misled U.S. officials investigating programs
like the Fast and Furious gunwalking scandal and the 2012 attacks in
Benghazi, Libya.
The President of the United States got four Pinocchios today from the
Fact Checker in the Washington Post. That has to be a first. So why
should we expect the Internal Revenue Service investigation to be any
different? Unfortunately, this administration has shown a tendency to
put politics ahead of the rule of law too many times.
For example, during the government-run Chrysler bankruptcy process,
the company-secured bondholders received much less for their loans than
did the United Auto Workers Pension Fund, a favorite of the Obama
administration. As Solyndra was going bankrupt, the administration
violated the law by making taxpayers subordinate to private lenders. So
the taxpayers got gored first before private lenders were at risk.
Last year the administration made unconstitutional recess
appointments to the National Labor Relations Board and to the Consumer
Financial Protection Bureau. Last year the administration illegally
waived key requirements of the 1996 welfare reform law.
Finally, to help implement ObamaCare, the IRS has announced that it
will violate the text of the law and issue health insurance subsidies
through Federal exchanges, something Congress did not authorize. The
law clearly states that these subsidies are not available to the
Federal exchange but to the State-based exchanges. Indeed, it is the
case that the President's
[[Page S3411]]
health care law will dramatically expand the power of the Internal
Revenue Service because the agency is responsible for implementing so
much of ObamaCare's most important provisions.
Well, given what we have learned about IRS malfeasance, does it
really sound like a good idea to give them more responsibility, to hire
more agents? Before we get to the bottom of the present scandal, do we
really want the IRS to administer a law that will affect one-sixth of
our economy, as ObamaCare will?
Do we really want the Internal Revenue Service agents collecting so
much personal information about millions of American citizens?
Remember, even before ObamaCare became the law, the IRS had more than
enough power to destroy the lives of individual Americans. Chief
Justice John Marshall, at the very beginning of our country, the Chief
Justice of the Supreme Court of the United States said the power to tax
involves the power to destroy, and those words are still true today.
With trust in the Federal Government already at an all-time low, the
IRS scandal will further diminish public confidence in public
institutions and in Washington, DC.
As a result, this scandal will make it much harder for us to work
together to adopt a fiscal policy and economic reforms that our country
so desperately needs. When the IRS starts behaving as a rogue agent
that considers itself above the law, we have entered truly dangerous
territory. Today I am going to join others of my colleagues to call on
the Acting IRS Commissioner Steven Miller to resign. If it is true what
currently appears to be true, that Mr. Miller willfully misled Congress
when inquiries were made earlier about this political activity, he
should resign today.
Furthermore, I am encouraged actually by Chairman Max Baucus of the
Senate Finance Committee and Senator Orrin Hatch who said they believe
it is important for the Finance Committee as the appropriate standing
committee of the Senate with jurisdiction over the Internal Revenue
Service to conduct an investigation.
I hope the first witness they will call is Treasury Secretary Jack
Lew, who is the boss of the IRS, or overseer of the IRS, Mr. Miller's
direct reporting boss. I look forward to a thorough bipartisan
investigation that will deliver justice to these government officials
who betrayed the American people in such a shameful and egregious
manner.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Vermont.
Amendment No. 889
Mr. SANDERS. Mr. President, I call up amendment No. 889.
The PRESIDING OFFICER. The clerk will report the amendment.
The assistant legislative clerk read as follows:
The Senator from Vermont [Mr. Sanders], for himself and Mr.
Leahy, proposes an amendment numbered 889.
Mr. SANDERS. Mr. President, I ask unanimous consent that the reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To address restoration of certain properties impacted by
natural disasters, and for other purposes)
At the appropriate place, insert the following:
SEC. ___. RESTORATION OF CERTAIN PROPERTIES IMPACTED BY
NATURAL DISASTERS.
For all major disasters declared under the Robert T.
Stafford Disaster Relief and Emergency Assistance Act on or
after August 27, 2011, the Corps of Engineers and the Federal
Emergency Management Agency shall consider eligible the costs
necessary to comply with any State stream or river alteration
permit required for the repair or replacement of otherwise
eligible damaged infrastructure, such as culverts and
bridges, including any design standards required to be met as
a condition of permit issuance.
Mr. SANDERS. Mr. President, this amendment is cosponsored by my
colleague from Vermont, Mr. Leahy. What it does is it addresses a very
serious problem facing the State of Vermont and I think potentially
States all over the country.
Mr. President, as you well know, Tropical Storm Irene impacted some
225 Vermont communities with 90 bridges and 963 culverts damaged or
destroyed statewide. In a small State, that is a lot of damage.
Long before Irene, the Vermont State legislature enacted stream
alteration standards that prevented flood hazards, damage to fish and
wildlife, and damage to adjacent property owners. These standards
result in resilient infrastructure and are looked to as a model by
other States. In other words, what the State legislature did
appropriately is pass standards that would do the job, that would
protect communities in times of floods and natural disasters.
As we all know, FEMA compensates communities for the rebuilding of
bridges and culverts damaged during large storms such as Irene, but
FEMA--and here is the main point--in many cases is insisting on
overriding Vermont's stronger standards, requiring communities to build
inferior projects that are unlikely to withstand the next major storm
to hit the State. In other words, communities are standing there
wanting to do the right thing. The State has promulgated regulations as
to what these culverts and bridges should look like. What FEMA is
saying is we are not going to compensate you for doing the right thing.
In other words, FEMA is insisting that local communities, in order to
get reimbursed for these expenses of replacing damaged infrastructure,
must build culverts and bridges to standards that have already failed
and are likely to fail again. This is Vermont's problem today. It could
be your State's problem tomorrow. The point here is we should not be
rebuilding culverts and bridges in a way that will result in them
failing once again when another flood or extreme weather disturbance
takes place. That makes no sense at all.
In Vermont, at least 39 bridge and culvert projects would benefit
from this amendment, and half of these projects have not yet gone
forward because of this dispute with FEMA. In other words, we have many
communities in the State of Vermont that are not going forward
rebuilding the damaged culverts and bridges but waiting because of this
ongoing dispute with FEMA.
Again, today this is Vermont's problem. Tomorrow it could be West
Virginia's or California's. It makes no sense to rebuild bridges and
culverts in a way that has failed. We want to rebuild them in a way
that will enable them to remain strong during the next flood or extreme
weather disturbance. If another Hurricane Irene were to hit, those
towns would be vulnerable to severe damage yet again. In other words,
they are sitting in limbo. They don't have the money to do the job they
want to see done, and they are not getting help from FEMA. In fact,
communities in States across the country that adopt more resilient
standards for infrastructure replacement would benefit from this
amendment.
Today it impacts Vermont. Tomorrow it could impact any State in this
country. Local communities and States have a better sense of the kinds
of standards that are required for bridges and culverts than FEMA, and
they should be allowed to go forward with those standards and be
compensated by FEMA.
FEMA's current practice throws good money at bad by preventing States
and local communities from rebuilding with more resilient, better-
defined infrastructure after devastating storms. The amendment Senator
Leahy and I are offering will save taxpayers money, will save lives,
and better protect communities from future natural disasters and
extreme weather disturbances.
In short, the Sanders-Leahy flood resilience amendment requires FEMA
to recognize State standards when providing Federal reimbursements for
bridge and culvert replacements after natural disasters, supports
communities that want to rebuild more resilient infrastructure after
natural disasters, harmonizes the approaches of the Army Corps of
Engineers and FEMA, and stops throwing good money after bad, saves
taxpayers at the local, State, and Federal level by making smarter
investments in more durable infrastructure.
With that, I would ask my colleagues to support this amendment.
I ask unanimous consent that the time during all quorum calls be
charged equally to both sides.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SANDERS. I yield the floor, and 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.
[[Page S3412]]
Mr. CARDIN. I ask unanimous consent that the order for the quorum
call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 868
Mr. CARDIN. Mr. President, first let me thank Senator Boxer and
Senator Vitter for the incredible work they have done in bringing
forward the Water Resources Development Act, the WRDA legislation. This
truly has been a bipartisan effort to bring forward an extremely
important bill for our economy, for jobs, for infrastructure, and for
competitiveness. I can speak for the citizens of Maryland as to how
important this legislation is to the economic life of our State in
maintaining the shipping channels that are critical to the ports in our
State, the Port of Baltimore. This legislation will provide the
wherewithal for Maryland and our Nation to remain competitive.
In this environment, it is not easy to get a major bill to the finish
line. It looks as though as a result of the work done by the chairman
and the ranking Republican member, we are on the verge of being able to
move this bill forward.
I know we are going to have a few votes in a few moments, and I
wanted to take this time to urge my colleagues to reject the Barrasso
amendment that would deny the regulation of a lot of the waterways in
our country. For 40 years the Clean Water Act dramatically improved the
health of a generation of Americans. Without this law, which for
decades had protected rivers, streams, wetlands, lakes, and coastal
waterways from toxic pollution, all of our Nation's waters would be
less safe to swim in, to fish in, and, especially, to drink.
Mr. President, we are talking about the health of the people of this
country--the Clean Water Act. We are talking about the health of our
streams which people live next to. We are talking about families
depending upon clean safe water when they turn their taps on so they
can have water to give their families. We are talking about our
environment.
I am pretty aggressive on this because I have the honor of
representing one of the States that is part of the Chesapeake Bay
watershed. The Presiding Officer also represents a State--West
Virginia--that is part of the Chesapeake Bay, as is Pennsylvania and
Delaware and Virginia and the District of Columbia. My point is there
are over 100,000 streams and rivers that feed into the Chesapeake Bay.
The Chesapeake Bay is the largest estuary in North America and has
thousands of species. The life of the Chesapeake Bay depends upon the
waters that flow into it, and the Barrasso amendment would deny the
effectiveness of regulating the health of the waters leading into the
bay. It would inject into the Clean Water Act a way in which we would
be denying the protection of the Clean Water Act to the public.
I urge my colleagues to reject this amendment. It is anti-
environment. There is no question about that. But let me cite another
reason. I hear my colleagues on both sides of the aisle talk about
predictability and we need to know what the rules are. We thought we
knew what the rules were on the Clean Water Act, but then the Supreme
Court came through with some cases that are, quite frankly, baffling to
us because they change the long-standing tradition of the regulations
on the Clean Water Act. We thought we understood what it was all about.
So there is a great deal of uncertainty today, and the Barrasso
amendment takes us back to that uncertainty.
The Obama administration, through its regulatory process, has given
us the predictability we need so everyone can plan their activities,
knowing full well what the responsibilities are for clean water. I
don't think we want to return to that time of uncertainty, and the
Barrasso amendment would lead us back down that path.
There are many other reasons why this is wrong to do. When we take a
look at how many wetlands and how many streams and brooks we have lost
across this country, do we want to turn back the clock on the
regulation of clean water on the streams, the brooks, and the wetlands
that are involved in our water supply? It is literally because of the
protections of the Clean Water Act that we know we are going to have a
safe supply of drinking water. It is because of the Clean Water Act we
know we can go to our beaches this summer and enjoy the recreational
activities along the water. The Barrasso amendment would take us to a
point where we could lose the effectiveness of the Clean Water Act in
protecting the public health of the people of this Nation.
We have a good bill before us. It is well balanced. I do again
applaud the chairman and ranking member. There are provisions in this
bill, quite frankly, I would like to see written in a different way,
but it was done with full bipartisan cooperation, and so the Barrasso
amendment should be rejected by this body, and I urge my colleagues to
reject the amendment.
With that, 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. HOEVEN. Mr. President, I ask unanimous consent the order for the
quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HOEVEN. Mr. President, I rise to speak on legislation in regard
to surplus water fees. I call it the States Water Rights Act, the
States water rights legislation, and I introduced this legislation as
an amendment to the Water Resources Development Act. Essentially what
it does is it would prevent the Corps of Engineers from unlawfully and
unfairly imposing water usage fees on the Missouri River States.
Joining me in this bipartisan legislation is Senator John Thune of
South Dakota, Senator Heidi Heitkamp of North Dakota, Senator Max
Baucus of Montana, and also Senator Tim Johnson of South Dakota. It is
bipartisan legislation. In fact, I expect Senator Thune will be joining
me here on the floor very shortly, and also Senator Heitkamp, so we can
engage in a colloquy in regard to the legislation.
The Missouri River, of course, flows through the State of North
Dakota and the other Missouri River States. We have seven States the
Missouri River flows through. In 1944, through the Pick-Sloan Act,
waters in those States were dammed to create large-scale reservoirs.
There are six mainstream reservoirs. Of course the primary purpose for
the dams and reservoirs was to provide flood protection downstream,
which we have been doing now for more than 50 years--actually, over 60
years.
At the same time, just as we are providing that flood protection with
these reservoirs, at the same time the upper basin States, States
throughout the basin, have withdrawn water from those reservoirs for a
whole variety of uses--municipalities, tribes, business and
industrial--the whole gamut of uses. In all that time, more than 60
years, the Corps of Engineers has never charged the respective States--
Montana, North Dakota, South Dakota, Nebraska--any of them--has not
charged them for using the water. That makes sense because if they draw
the water out of the river--I mean every one of the States has water
rights. Tribes have water rights. If they draw the water out of the
river, of course, there is no charge.
Likewise, because the States gave up the land for flood protection in
order to create those reservoirs, the corps has never charged for
drawing water out of the reservoirs either.
That has changed now. Now the corps is saying we are undertaking a
study and in our study we are going to look and decide whether we are
going to charge a fee if you take water out of the reservoir; even
though we never have, now we think maybe we are going to charge a fee.
This amendment blocks that. It says you can't do that. The States
have water rights. Just as if you take it out of the river you can't
charge us for that water, you certainly can't flood our land and then
charge us for it. It doesn't make any sense.
Furthermore, because States have water rights, they would never be
able to do it. If in fact the corps were to proceed and impose those
fees, we would sue them and we would win under the law because the
respective States are entitled to those water rights. That makes this
kind of an unusual situation.
We have put this legislation forward, frankly, to avoid the cost of
litigation,
[[Page S3413]]
the cost to the respective States and the cost to the Federal
Government. So the reality is without this legislation we are offering,
it would actually cost the Federal Government money because they would
have to undertake litigation against the States to impose fees on the
States in violation of their water rights which are well established at
law. This amendment, in fact, in actuality saves the Federal Government
money.
But the CBO, under their scoring regime, says no, wait a minute.
Somehow we are going to look beyond that. I guess they would pretend
that wouldn't really happen. So we are going to assign a cost to this
legislation because the corps might get some fees down the road
somewhere; in spite of all these things, they might get a fee. So they
have assigned a $5 million cost to the legislation over the 10-year
scoring window; $5 million over the 10-year scoring window.
We have managed to address that by saying no, we have also added--in
addition to the fact that under this legislation the corps can't impose
the fees, we have also said you have to find $5 million in savings over
the next 10 years out of your operating budget. Since just their
operations alone are $2 billion a year, obviously that would be a very
simple matter. The fact is it is, frankly, a technicality anyway
because they are offsetting money they are never going to get so there
is no cost to it. But from an accounting standpoint we do that so the
CBO does not assign any score to this legislation.
That is kind of some of the nuts and bolts of the legislation. But
the key is this: This is about States that have given up fertile
farmland, hundreds of thousands of acres, in order to provide flood
protection for other States farther downstream. They were able to not
only use the land but they were able to draw water from the river as
they wanted to without being charged. So here comes the corps and says
now that we have flooded your land, now that you have provided that
flood protection, oh, golly, we are going to charge you for flooding
your land. We are going to charge small towns, we are going to charge
tribes, we are going to charge business and industries, farmers--
whomever.
It absolutely makes no sense. That is what this act does. It
addresses that and makes sure they do not impose those fees in clear
violation of States' water rights. In fact, the legislation, even
though scored by CBO as having no cost, will save not only the Federal
Government money but the respective States money as well.
I am very pleased to note that my distinguished colleague from South
Dakota, Senator John Thune, is here. I wish to ask if he, as cosponsor
of this legislation, would express some of his thoughts as well.
Mr. THUNE. I ask the Senator from North Dakota if he will yield for a
question?
Mr. HOEVEN. Yes.
Mr. THUNE. This is an issue that is important to both his State and
my State for many reasons, not the least of which is we have basically
flooded 1.6 million acres of prime bottom land, some of the richest
agricultural land in our States, in order to prevent flooding
downstream. Then of course there were also stated other various uses of
the water that would be allowed for the States that were impacted when
this occurred.
But I wonder if my colleague from North Dakota--he has already
touched upon many of the reasons why this should not happen, but he is
a former Governor of his State. I know our Governor and our attorney
general have made it abundantly clear that if the corps moves forward,
they intend to file a lawsuit and they will litigate this. As a former
Governor, if the now-Senator from North Dakota could respond to how his
State of North Dakota might act in the event this actually were
implemented by the corps?
It strikes me at least that this is without precedent. This is
something that--the Flood Control Act was passed in 1944 and the dams
were built subsequent to that. For the past 50 years our States have
had access to this water and it is something that is a State right.
There is no legal or statutory--there is no historical precedent for
doing this. I am wondering how the former Governor of North Dakota
might view this as a Governor, as to what his action might be in the
event the Corps of Engineers were to move forward with this. Because it
certainly would impact a lot of the industrial users, water users in
the State, businesses, tribes--a lot of folks are going to be impacted
if the corps moves forward with this proposal. If the Senator from
North Dakota might tell me as former Governor how he might view this
and what he would intend to do and what our Governor and attorney
general would intend to do in the event the corps moves forward.
Mr. HOEVEN. I thank the distinguished Senator from South Dakota for
joining me, and for his question. Of course, he is anticipating exactly
what would happen. The States will initiate litigation against the
corps if in fact the corps decides to impose a fee. They are
undertaking a year-long study and at the end they are going to come
back and say: Oh, they are not going to charge a fee. Or they are not
going to impose a fee. If they do impose a fee, here is what it would
be. At that point they would be sued by the States. In fact, in the
case of North Dakota, the legislature has already set aside moneys to
fund the lawsuit.
As when I was the Governor, the current Governor and the attorney
general have already said very clearly they will commence litigation.
It would be multistate litigation. As I said, they have already set
aside funds.
That is the point I am making. We can talk about the CBO score--which
we have now squared away so it doesn't score--the reality is we are
saving both the Federal Government and the States money with this
legislation because there will absolutely be litigation.
Mr. THUNE. Will the Senator yield for another question, if I might?
Mr. HOEVEN. I will.
Mr. THUNE. Our attorney general wrote a letter and said:
This proposal, whether disguised as a reallocation or
surplus water, exceeds the Corps' regulatory authority and
violates basic principles of federalism.
It went on to lay out the reasons why they, our State, would
obviously enter into litigation if it comes to that, if it is necessary
in order to protect the rights of South Dakotans to the water that is
rightfully theirs.
I would be interested in knowing as well from the Senator from North
Dakota if in fact, during the course of the last many years, his
amendment would change anything, if his amendment would change anything
that is happening today? In other words, today what happens if the
State wants to use water in one of the mainstream dams--and there are
six mainstream dams, one in Montana, a big one in North Dakota, and
then we have four in South Dakota, all of which were created by the
Flood Control Act or authorized. These were dams built to protect from
flooding downstream and then also authorized various uses of that
water.
I might point out what some of those uses are. They were to be for
enhanced navigation, cheap hydro power, irrigation, programs to
increase public recreation facilities, municipal-industrial water
supplies, and fish and wildlife populations. Those are some of the
things that are stated that the water is to be used for.
The Senator's amendment, which would prevent the corps from charging
for this water, as I understand it, doesn't change anything, the
practice as it exists today, because a water user would request an
easement from the corps, and then essentially the State would have to
issue the water. That is my understanding of how it works today.
Does any of that change--if it is passed--as far as the amendment of
the Senator from North Dakota?
Mr. HOEVEN. Mr. President, in response to the Senator's question,
absolutely not. It doesn't change any of the authorized purposes for
the reservoirs and for the system. This does not impact in any way any
of the authorized uses for the mainstem dams, the mainstem breviaries
or the Missouri River system.
I want to emphasize that because we have the seven Missouri River
States, and sometimes we get the upstream and downstream interests.
This does not change any of those authorized purposes or how they are
utilized or how the respective States interact with them--or even the
amount of water usage.
So to try to bring in any of the other issues which have typically
been concerns for the Missouri River does not
[[Page S3414]]
apply here. This is about whether the respective States--this is one
where we can come together. This is upstream or downstream and whether
any States will be charged for water that is rightfully theirs. That
makes this very much a States rights issue about which all of the
States should be concerned.
How can we allow Federal agencies to come in and simply impose a fee
because they want to and then impose whatever fee they want? We will do
a study and we will impose a fee of whatever size we determine we
believe is appropriate.
It is a clear violation of States rights, and on a very important
issue, water rights.
If I could, I want to also invite the good Senator from North Dakota,
Ms. Heitkamp, to join us as well in this colloquy. She also brings
expertise as the former attorney general in North Dakota and can
certainly comment on the legal issues as well.
Before I do that, I will turn it over, Mr. President, to the Senator
from South Dakota, who I think had another question and/or comment.
Mr. THUNE. Mr. President, I want to welcome our other colleague from
North Dakota who also has experience as a litigator in protecting the
interests of her State. Perhaps she could also comment on what actions
the States might take if the corps moves forward.
I want to point out to my colleagues, and perhaps the Senator is
already aware of this, but I am looking at some things that are
proposed charges that the corps would make under this proposal,
although I don't think they have stated explicitly what that might be.
But it ends up being a significant amount.
In fact, over the Lewis and Clark leg, which is Gavins Point--or I
should say, Lewis and Clark Dam--they are talking about $174 per acre
foot of yield from Lewis and Clark Lake. We are talking about
businesses, individuals, tribes, and industrial users having access to
water they believe--and I think we all believe--is something that was
promised to them when this legislation was passed way back in the
1940s.
We have essentially 70 years of precedent where it has been the case
that the States have access and can rightfully use that water for those
various purposes as authorized under the legislation. This would move
away from that and start to impose these fees, which I think over time
get to be quite excessive.
I appreciate the work that has been done by the Senator from North
Dakota Mr. Hoeven in terms of trying to get the CBO to evaluate this in
the proper context. For a while they were talking about the scoring
impact that was much larger than many of us believed it would be.
Again, it is a hypothetical situation. It is not happening today.
All the Senator is simply doing is saying we want to keep in place
the rules of the game as they have applied to the mainstem dams for the
past 50 years--70 years since the authorization in the legislation that
created it, but also since the dams were built.
I guess I would say to my colleagues from North Dakota, I appreciate
their good work, and I would simply reiterate--as a South Dakotan,
downstream from North Dakota--that our States, and all the States in
the upper basin, would be dramatically impacted by this because it
would be a precedent that would be entirely new.
Literally, this is something we have not dealt with since we had the
dams and the lakes in our States. Again, this would be at a tremendous
sacrifice in terms of the amount of prime bottom land that was given up
when the dams were built and the land was taken.
I now defer to the former attorney general of North Dakota, Senator
Heitkamp, for some observations she might have with respect to that
issue.
Mr. HOEVEN. I thank the Senator from South Dakota for joining, and he
is absolutely right. The cost to the States is significant. In
actuality, the scoring number is reduced because the probability of
them getting it is so remote. As I mentioned earlier, they are flying
in the face of well-established water rights the States have. So once
they assign the probability they would lend to it, obviously that
reduces the amount that gets scored.
Once again, it shows they are trying to impose a fee where they have
no right to do it, so it did create some scoring issue that it really
never should. The fact is the litigation would far outweigh the score
that CBO has put on it, both to the Federal Government and to the
respective States. In the end there would be no fees because there is
no right to assess those fees.
I think we have someone who as a former attorney general dealt, in
fact, with this very type of issue during her tenure as attorney
general. I turn to my colleague from North Dakota and ask that she
comment on the legality of the issue as well as her thoughts in terms
of the fairness and the States rights aspect, which truly makes this an
issue our colleagues should join and support. This is exactly what
could happen to them, and it could happen to their States.
I turn to Senator Heitkamp for her thoughts in that regard.
The PRESIDING OFFICER. The junior Senator from North Dakota.
Ms. HEITKAMP. I say thank you to my colleagues from North Dakota and
South Dakota. Mr. President, this is not a new issue. This is an
issue--even back in the 1990s--I dealt with as the State's attorney
general. Why do I mention that? I mention it because we were able to
persuade the corps at the time that the intake pipe they were
attempting to charge for surplus water was actually in the original
river bed. I--just tongue-in-cheek--suggested I would charge them for
putting their water on top of our water, and maybe they should pay a
fee to us for the storage we were going to allow them.
In all seriousness, this is not an issue that is going to go away. If
any of our colleagues think this is an issue where we can just let it
go and ride it out, this is an issue that has percolated for a lot of
years. It has culminated right now to this effort to be proactive in
this body to prevent litigation, prevent excess expense, and prevent a
deterioration of a relationship that is essential to making sure we
have flood protection and all of the other good that came out of the
Flood Control Act.
So the time is now to take an immediate step to prevent this issue
from going any further and to address the concerns that upstream States
have.
I want to spend just a few moments talking about this from a legal
perspective and what could happen if, in fact, the Federal Government
engaged in litigation with the States.
We have heard today from both South Dakota and North Dakota Senators.
I am reasonably sure Montana would not allow this precedent to stand
without some pushback and an absolute commitment from a bipartisan
standpoint from all the upstream States for a pushback.
Let's talk about why there are legal problems with the corps
approach. Charging fees for surplus waters, I believe, would violate a
State's right to the water that naturally flows through the boundaries
as historically recognized by the Federal Government and as recognized
by the 10th Amendment.
Charging fees would violate statutory law. Section 1 of the 1944
Flood Control Act provides protection for water resources in Western
States. We have a common law water rights argument, a historic
argument, and we have a statutory argument.
I think charging fees would reverse decades of corps policy on
surplus water and create a precedent which should not be established,
not only in the upper Missouri basin but should not be established
anyplace in this country. That is why this is an issue that is not just
about the Dakotas, it is not just about Montana and the upstream
States, it is an issue that every one of our colleagues has an interest
in reviewing. If they can do it in this case, why can't they do it in
any other reservoir.
Charging fees would penalize Montana, North Dakota, and South Dakota
by charging for water that is freely available in the absence of the
corps reservoir. If there were no reservoir, there would be no issue.
In fact, if they tried to charge, most of our colleagues would find
that absolutely atrocious. This is in the face of what we know we have
sacrificed for flood control in that basin.
I want to mention the unique interest that the Mandan, Hidatsa,
Arikara Nation, along with the Standing Rock Nation have and what they
have sacrificed for flood control, what they have sacrificed in terms
of loss of their
[[Page S3415]]
land, division of their reservation boundaries, and division of their
property. Now, the corps is saying: Yes, we took your land. Yes, we
disrupted your natural boundaries and your natural way of life, and now
we are going to charge you for the water that sits on your historic
homeland.
Mrs. BOXER. Will the Senator yield for a unanimous consent request?
Mr. HOEVEN. Mr. President, I ask unanimous consent for another 5
minutes.
Mrs. BOXER. We have a vote locked in at 5 p.m., so the Senator can
speak up until 5 p.m.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from California.
Mrs. BOXER. I ask unanimous consent that at 5 p.m., the Senate vote
in relation to the Inhofe, Barrasso, and Sanders amendments as provided
under the previous order; that following the vote in relation to the
Sanders amendment, the Senate proceed to a period of morning business
with Senators permitted to speak up to 10 minutes; further, that when
the Senate resumes consideration on S. 601 on Wednesday, May 15, it
resume the voting sequence in the previous order with all after the
first vote being 10 minutes and all other provisions of the previous
order remaining in effect.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
Mrs. BOXER. For the information of all Senators, it is our
expectation that the Inhofe amendment will be the subject of a voice
vote. If that occurs there will be two rollcall votes this evening, and
the remainder of the votes will occur tomorrow.
I yield the floor.
Ms. HEITKEMP. So when we look at water surplus fees and we think
about the fact that we have given our land, we have given our
opportunity to have free access to our water, we have done all of this
with the idea that it is for the better good of this country, to now
charge our citizens and people who have always had historic access to
that water--this fee looks a whole lot like a tax--it is adding insult
to injury.
I can guarantee that this issue will not go away. If we don't
prevail, what we are buying is a lawsuit because the Corps of Engineers
is not going to give up. The Corps of Engineers will continue to
advance and promote this idea until they implement this idea, and then
we are going to be in litigation.
This issue will not go away. The easiest way to resolve this issue in
an amiable way and in a way that is going to maintain the kind of
historic relationship we have with our tribes is to deal with it today.
We need to deal with it within the Water Resources Development Act we
are enacting. We need to support amendment No. 909, the amendment of my
good friend and colleague John Hoeven, the Senator from North Dakota,
and put this idea to bed once and for all that the corps cannot charge
us for water that historically and legally belongs to the States where
that water is located.
I yield the floor.
Mr. HOEVEN. I wish to thank again my colleague for her comments in
regard to the legal aspect; again, she brings a lot of direct
experience working with this issue. So I thank her for her comments
with regard to the legal aspect, but she makes another very important
point. This isn't just about States rights; this would be a taking of
tribal rights too.
I am going to turn to my colleague from South Dakota and ask him a
question on this very same subject. But, in fact, in North Dakota, it
is going to be one of our tribes that is most disenfranchised by this
action of the corps. Because, again, we have made the point we can take
water out of the river. We can continue to do that. They can't charge
us for water coming from the river.
The other place they are trying to charge for water is out of the
reservoir. But most of the reservoir in North Dakota is inside the
tribe reservation, so the people who would be most dramatically
impacted, in fact, would be Native Americans in our State.
I am going to turn to our colleague from South Dakota. I am guessing
that is true in South Dakota as well.
Mr. THUNE. I would just say to both of my colleagues from North
Dakota, that is an absolutely accurate observation.
If we look at who is impacted--and we have the Standing Rock Tribe
that is partly in North Dakota and partly in South Dakota so it crosses
the State border. We have the Cheyenne River Sioux Tribe, the Coal
Creek Sioux Tribe, the Yankton Tribe. We have a whole bunch of
reservations as we go right down that corridor of the Missouri River
that would be profoundly impacted. As we mentioned earlier, when this
land was given up, when the dams were built, this was a lot of not only
private land but tribal-held land which they gave up. This would
directly impact the access they would have to water that is rightfully
theirs.
So in addition to the concerns our States have and our attorneys
general have, we also have a lot of tribes that have a very vested
interest in making sure this doesn't happen. That is why it is so
important that our colleagues support the amendment of the Senator from
North Dakota, because as was pointed out by Senator Heitkamp, this is
precedent setting. If they can do this here, they may try and do it
someplace else.
I also think--and the point was made by both of my colleagues--this
is a very practical consideration. It will cost the Federal Government
and our States a lot more than what they are saying this is going to
achieve in terms of revenues when this goes to court. Both the States
and the Federal Government will be locked up, I would suspect, in
litigation for some time. The amount of revenues that would be raised
by the fees that would be imposed under the various proposals that are
being advanced by the corps simply would pale in comparison to the
litigation costs that would be involved.
So that is a very practical consideration. I concur. I am not a
lawyer, and I certainly am not a former attorney general or former
Governor. I know both of my colleagues have experience with these
issues. But I can tell my colleagues from talking with our Governor and
our attorney general they are highly confident that legally this is a
very open-and-shut situation and a case in which our State would
prevail. So it seems sort of crazy in a way that we would even have to
go down that trail, and I hope we can prevent it from happening by
having our colleagues join us in support of this amendment.
Mr. HOEVEN. Mr. President, I wish to thank my colleague from South
Dakota and turn to my colleague from North Dakota for any final
thoughts before we yield the floor.
Ms. HEITKAMP. Mr. President, my colleagues from North and South
Dakota and I come from practical States. We come from States where we
try to anticipate problems and we solve problems before they turn into
big, expensive pieces of litigation, and that is what that amendment
does. This amendment addresses, in a proactive way, a policy we know
will not be put to bed until this body speaks. Let's do it now. Let's
do it kind of in the way we do it in our States. Let's be proactive.
Let's make sure we aren't wasting money and wasting relationships on
litigation and that we are moving forward to manage the Upper Basin as
best we can and that we do what is right by the people of our State and
the people in our tribal governments and our Native American neighbors.
Amendment No. 909
Mr. HOEVEN. Mr. President, with that, I wish to set aside the pending
amendment and call up the Hoeven amendment No. 909.
I wish to close with a couple other thoughts. Senator Baucus from
Montana wanted to join with us in the colloquy, but the timeline didn't
work out. So I wished to express my appreciation for his support and
sponsorship of this legislation as well.
I wish to again make the point that this isn't about using the water.
Our respective States will still use the water. The issue is about
being charged for it. That is a very important point, so that nobody
tries to confuse this issue in order to try to get opposition to the
issue. We will still use the water; it is just that we will be charged
for it unfairly, except for the fact--as we said, this would be tied up
in litigation creating a bunch of costs for the State and the Federal
Government, so that wouldn't really happen. So what we are doing is
solving a very important problem. It is one that all of the States need
to be cognizant of, because
[[Page S3416]]
if a Federal agency can come in and try to do it to one State, it can
do it to any one of the States. This is a fundamental issue regarding
States rights.
If any of our colleagues have questions or concerns about the
amendment, I encourage them to come to us. We want to talk to them
about it. We truly believe, if they understand the facts, they will be
strongly supportive.
Again, I wish to turn to my colleague from South Dakota.
Mr. THUNE. One final point of clarification and perhaps the Senator
from North Dakota can react and comment on this as well.
My understanding is, of course, that this doesn't have any impact on
the master manual, the way in which the corps manages the reservoir. So
the degree to which there might be concern about whether this is our
water versus their water, which historically has plagued a lot of the
discussions about the Missouri River--upstream-downstream interests. As
the Senator from North Dakota pointed out, the water is going to get
used. It is water that is either stored or used. I think it is a
question of whether we are going to be charged, the users of that water
are going to be charged, and that does, of course, create precedent. If
that is something they can do here, the question is, What is the next
State? Because this violates a principle of federalism, as pointed out
by the attorney general of South Dakota in his letter to the Corps of
Engineers.
But I wanted to say for the record, perhaps to those who are viewing
this as an upstream-downstream battle, that is not the case. This does
not affect the master manual, to my knowledge, and I ask the Senator
from South Dakota to react to that as well.
Mr. HOEVEN. Mr. President, the Senator is absolutely right. I wish to
thank him for emphasizing that point. It is very important. Again, that
is why I encourage any of our colleagues to discuss this issue with us
if they have any concerns whatsoever. It is just a fundamental fairness
issue, and we ask for an affirmative vote from our colleagues.
With that, I yield the floor and note the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant bill clerk proceeded to call the roll.
Mr. HOEVEN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Without objection, the clerk will report the Hoeven amendment.
The assistant bill clerk read as follows:
The Senator from North Dakota [Mr. Hoeven] proposes an
amendment numbered 909.
Mr. HOEVEN. I ask unanimous consent that the reading of the amendment
be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
Amendment No. 909
(Purpose: To restrict charges for certain surplus water)
On page 190, after line 23, add the following:
SEC. 2060. RESTRICTION ON CHARGES FOR CERTAIN SURPLUS WATER.
(a) In General.--No fee for surplus water shall be charged
under a contract for surplus water if the contract is for
surplus water stored on the Missouri River.
(b) Offset.--Of the amounts made available under Public Law
113-6 (127 Stat. 198) for operations and maintenance under
the heading ``Corps of Engineers--Civil'', $5,000,000 is
rescinded.
Mr. HOEVEN. Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from California.
Amendment No. 868
Mrs. BOXER. Mr. President, shortly we are going to vote; I believe it
will be a voice vote on the Inhofe amendment. It is not a controversial
amendment; everybody agrees to it. Then we will proceed to the Barrasso
amendment which I have spoken about before.
I wish to urge my colleagues to be very careful on this one because
it has unintended consequences. The way the Barrasso amendment is
drafted, it tries to say, in advance of a rulemaking, that if the
rulemaking includes any infrastructure from the guidance that has been
put forward by the corps and the EPA--if it even contains anything like
it--``the rule will be considered as having been vacated.'' That is a
quote.
So the bottom line is, the Barrasso amendment is such an overreach
that we will keep the whole issue of waters of the United States in
chaos--and it is in chaos. We received letters from business people
begging us to allow the rulemaking to go forward, but because of the
way the Barrasso amendment is drafted, essentially we are not going to
ever have a rule.
So why is it important to have a rule that is very clear and explains
what waters are covered under the Clean Water Act? Let me tell my
colleagues why. Without protections of a rule, dangerous pollutants
could be put into our waterways. This isn't just hyperbole. We are
talking about toxic heavy metals such as arsenic and lead. We are
talking about toxins that cause cancer and harm the health of infants
and children in particular. Who are the vulnerables? The infants, the
children and the elderly and those who are disabled. They are the ones
who are the victims of filthy, dirty water.
I am not saying my friend Senator Barrasso wants to get people sick.
I am not saying that. But I am saying there is an unintended
consequence of the overreach in this amendment which is pretty clear to
all who read it. It says if the draft guidance that has already been
looked at is included in any way, shape or form into a final rule, then
the whole rule is thrown out on its face and that leaves the situation
in chaos.
Say I come to the Presiding Officer and say: I am going to write a
book about mathematics. The Presiding Officer says: That is very
exciting, but there is only one thing. I am your publisher and you
can't put one single number in the book--not a 1 to a 2 to a 3. You can
write a book on mathematics, but it can't contain any numbers. That is
the most ridiculous situation. But this is the essence of the Barrasso
amendment. It is telling people who are going to write a rule that they
can't take anything that was put in the draft guidance and put it into
that rule. It makes absolutely no sense.
I want to protect people from toxics such as lead and arsenic.
Without these safeguards of the rule, our drinking water supplies would
be more at risk and the laws of these protections would increase the
risks of dangerous floods in downstream communities because it would
eliminate wetlands protections.
One of the things I learned when I was a county supervisor a very
long time ago is that wetlands kept in their natural state and enhanced
are the best way to have flood protection. When I went to Louisiana
after Katrina, I was struck by the fact that the whole community
understood the importance of the wetlands, because they absorb the
floodwaters.
So now, because we are not going to be able to define what is a body
of water that falls under the Clean Water Act, we are going to have a
major problem with our wetlands. We are going to have a major problem
with our rivers. We are going to have a major problem with our streams.
We are talking about enormous bodies of water that are unprotected now
because there is no rule. Under the Barrasso amendment, my opinion is--
and it isn't just my opinion--there will not be any rule because if the
rule picks up anything in the guidance at all--anything substantially
similar to the guidance at all--it will be automatically overturned.
I wish to say to my friend, if he doesn't like a rule, he has the
CRA, the Congressional Review Act. He can wait until he gets the rule.
Don't prejudge it. Don't say the rule is vacated. That is pretty
dictatorial to people who are in charge of protecting our water supply.
Nobody wants our kids to get more cancer. Nobody wants this to
happen. We have to protect streams that provide drinking water for up
to 117 million Americans. We have 20 million acres of wetlands that
provide flood protection, improve water quality, and serve as wildlife
habitat.
So the hour of 5 o'clock is upon us. We are going to vote on the
Inhofe amendment first. Then we will turn to Senator Barrasso for a
moment to make his case, and then I will have 1 minute after that. So
at this time we return to regular order. I note the absence of a
quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant bill clerk proceeded to call the roll.
[[Page S3417]]
Mrs. BOXER. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Amendment No. 797
Mrs. BOXER. Madam President, I call up Inhofe amendment No. 797.
The ACTING PRESIDENT pro tempore. The clerk will report.
The legislative clerk read as follows:
The Senator from California [Mrs. Boxer], for Mr. Inhofe,
proposes an amendment numbered 797.
Mrs. BOXER. I ask unanimous consent to yield back all time.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The question is on agreeing to the amendment.
The amendment (No. 797) was agreed to, as follows:
(Purpose: To authorize a land exchange)
At the end of title XII, add the following:
SEC. 12__. TULSA PORT OF CATOOSA, ROGERS COUNTY, OKLAHOMA
LAND EXCHANGE.
(a) Definitions.--In this section:
(1) Federal land.--The term ``Federal land'' means the
approximately 87 acres of land situated in Rogers County,
Oklahoma, contained within United States Tracts 413 and 427,
and acquired for the McClellan-Kerr Arkansas Navigation
System.
(2) Non-federal land.--The term ``non-Federal land'' means
the approximately 34 acres of land situated in Rogers County,
Oklahoma and owned by the Tulsa Port of Catoosa that lie
immediately south and east of the Federal land.
(b) Land Exchange.--Subject to subsection (c), on
conveyance by the Tulsa Port of Catoosa to the United States
of all right, title, and interest in and to the non-Federal
land, the Secretary shall convey to the Tulsa Port of
Catoosa, all right, title, and interest of the United States
in and to the Federal land.
(c) Conditions.--
(1) Deeds.--
(A) Deed to non-federal land.--The Secretary may only
accept conveyance of the non-Federal land by warranty deed,
as determined acceptable by the Secretary.
(B) Deed to federal land.--The Secretary shall convey the
Federal land to the Tulsa Port of Catoosa by quitclaim deed
and subject to any reservations, terms, and conditions that
the Secretary determines necessary to--
(i) allow the United States to operate and maintain the
McClellan-Kerr Arkansas River Navigation System; and
(ii) protect the interests of the United States.
(2) Legal descriptions.--The exact acreage and legal
descriptions of the Federal land and the non-Federal land
shall be determined by surveys acceptable to the Secretary.
(3) Payment of costs.--The Tulsa Port of Catoosa shall be
responsible for all costs associated with the land exchange
authorized by this section, including any costs that the
Secretary determines necessary and reasonable in the interest
of the United States, including surveys, appraisals, real
estate transaction fees, administrative costs, and
environmental documentation.
(4) Cash payment.--If the appraised fair market value of
the Federal land, as determined by the Secretary, exceeds the
appraised fair market value of the non-Federal land, as
determined by the Secretary, the Tulsa Port of Catoosa shall
make a cash payment to the United States reflecting the
difference in the appraised fair market values.
(5) Liability.--The Tulsa Port of Catoosa shall hold and
save the United States free from damages arising from
activities carried out under this section, except for damages
due to the fault or negligence of the United States or a
contractor of the United States.
Mrs. BOXER. I move to reconsider the vote and move to lay that motion
on the table.
The motion to lay on the table was agreed to.
Mrs. BOXER. Madam President, what is the order at this time?
Amendment No. 868
The ACTING PRESIDENT pro tempore. Under the previous order, there
will now be 2 minutes of debate equally divided prior to the vote on
amendment No. 868 offered by the Senator from Wyoming, Mr. Barrasso.
The Senator from Wyoming.
Mr. BARRASSO. Madam President, this amendment restricts the expansion
of Federal authority to encompass all wet areas of farms, ranches, and
suburban homes across the United States. They want to do it through
guidance, this proposed guidance that is used by Federal agencies. It
seems that they are preparing to expand the definition of waters of the
United States to include ditches and other dry areas where water flows
only for a short duration after a rainfall.
This guidance is going to have a huge impact on farmers, ranchers,
and small businesses that need to put a shovel in the ground to make a
living. This guidance will, in fact, trump States rights by preempting
State and local governments from making local land and water use
decisions.
I have always believed the State and local governments, not
Washington, know best how to protect their communities from
environmental harm. The guidance does exactly the opposite and puts the
power of these decisions in the hands of bureaucrats in Washington.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from California.
Mrs. BOXER. Madam President, the way my colleague and friend has
drafted his amendment is very dangerous to the process because he wants
to say if, in the rulemaking where we will define the waters of the
United States, if they even so much as refer to the guidance that has
been put forward, the draft guidance, there will be no rule.
The problem of not having a rule is we leave in place chaos. States
cannot go ahead and handle this themselves. Local governments cannot.
Under the law, according to all the rules of the Court and everybody
else, we have to have a definition. No one I know wants to classify a
ditch or a puddle as a water of the United States. That is always
brought up, but that is just a red herring.
We need to make sure we have a Clean Water Act that protects the
people, protects their drinking water, and makes sure they are safe
when they swim in a lake. If we do not move forward with a rule, at the
end of the day this amendment will not allow that to happen, and we are
in chaos. It does not protect our people from arsenic, from lead, from
whatever objects there may be in a body of water. So I hope we will
reject this. I thank my friend for offering it, but I think it is
misguided.
I yield the floor.
Mr. BARRASSO. I ask for the yeas and nays.
The ACTING PRESIDENT pro tempore. Is there a sufficient second?
There is a sufficient second.
The question is on agreeing to the amendment.
The clerk will call the roll.
The assistant bill clerk called the roll.
Mr. DURBIN. I announce that the Senator from New Jersey (Mr.
Lautenberg), the Senator from Washington (Mrs. Murray), and the Senator
from Florida (Mr. Nelson) are necessarily absent.
Mr. CORNYN. The following Senator is necessarily absent: the Senator
from Alaska (Ms. Murkowski).
The ACTING PRESIDENT pro tempore. Are there any other Senators in the
Chamber desiring to vote?
The result was announced--yeas 52, nays 44, as follows:
[Rollcall Vote No. 119 Leg.]
YEAS--52
Alexander
Ayotte
Barrasso
Begich
Blunt
Boozman
Burr
Chambliss
Coats
Coburn
Cochran
Collins
Corker
Cornyn
Crapo
Cruz
Donnelly
Enzi
Fischer
Flake
Graham
Grassley
Hagan
Hatch
Heitkamp
Heller
Hoeven
Inhofe
Isakson
Johanns
Johnson (WI)
Kirk
Landrieu
Lee
Manchin
McCain
McCaskill
McConnell
Moran
Paul
Portman
Pryor
Risch
Roberts
Rubio
Scott
Sessions
Shelby
Thune
Toomey
Vitter
Wicker
NAYS--44
Baldwin
Baucus
Bennet
Blumenthal
Boxer
Brown
Cantwell
Cardin
Carper
Casey
Coons
Cowan
Durbin
Feinstein
Franken
Gillibrand
Harkin
Heinrich
Hirono
Johnson (SD)
Kaine
King
Klobuchar
Leahy
Levin
Menendez
Merkley
Mikulski
Murphy
Reed
Reid
Rockefeller
Sanders
Schatz
Schumer
Shaheen
Stabenow
Tester
Udall (CO)
Udall (NM)
Warner
Warren
Whitehouse
Wyden
NOT VOTING--4
Lautenberg
Murkowski
Murray
Nelson
The ACTING PRESIDENT pro tempore. Under the previous order requiring
60 votes for the adoption of this amendment, the amendment is rejected.
Mrs. BOXER. I move to reconsider the vote and to lay that motion on
the table.
The motion to lay on the table was agreed to.
[[Page S3418]]
The ACTING PRESIDENT pro tempore. The Senator from California.
Mrs. BOXER. I want to tell my colleagues what the plan is for tonight
and tomorrow on the WRDA bill and thank everyone so much on both sides
of the aisle for their cooperation. Senator Vitter and I are so happy
we are able to have this open process, and we will finish this bill
tomorrow. This will be the last vote this evening. We will continue
late morning and complete our work. Right now we are going to have the
Sanders amendment, with 2 minutes equally divided, and both Senators
from Vermont would like to be heard.
Amendment No. 889
The ACTING PRESIDENT pro tempore. Under the previous order, there
will now be 2 minutes of debate equally divided prior to a vote in
relation to amendment No. 889, offered by the Senator from Vermont, Mr.
Sanders.
The Senator from Vermont.
Mr. SANDERS. This amendment impacts Vermont today, but it can impact
any and every State in this country if it experiences a major flood or
a natural disaster.
We all know FEMA compensates communities for rebuilding bridges and
culverts damaged during storms such as Irene, but what is not widely
known is that FEMA insists that local communities, in order to get
reimbursed, must build culverts and bridges to the same standards that
already failed and are likely to fail again. It is not terribly
sensible. That is what this amendment deals with.
I yield to my colleague from Vermont, Senator Leahy.
The ACTING PRESIDENT pro tempore. The Senator from Vermont, Mr.
Leahy.
Mr. LEAHY. Madam President, all we are saying is that if you are
going to be getting relief from the Federal Government but you have a
better way to rebuild your culverts, you can do it that way rather than
to have the ones that failed before.
I am sure there are a whole lot of States here that will be affected
by this amendment, and I hope it will be approved.
The ACTING PRESIDENT pro tempore. The Senator from Oklahoma.
Mr. COBURN. Madam President, as ranking member on the Homeland
Security and Governmental Affairs Committee, I know there are a lot of
problems with FEMA and the Stafford grant, but this is essentially an
earmark for an improvement before FEMA has even determined whether it
is going to give mitigation grant money to the State of Vermont.
We need to do a lot in the way of changes with FEMA and grants and
the Stafford grant monies. We know that, and we are working on that in
Homeland Security. But this starts a process that sets a precedent that
will be terrible. This is nothing right now but an earmark for one
area, to benefit one State, when we need to make improvements in the
whole process.
I hope my colleagues will look at the big picture rather than the
small picture, and I ask for the yeas and nays.
The ACTING PRESIDENT pro tempore. Is there a sufficient second?
There appears to be a sufficient second.
The question is on agreeing to the amendment.
The clerk will call the roll.
The assistant legislative clerk called the roll.
The ACTING PRESIDENT pro tempore. Are there any other Senators in the
Chamber desiring to vote?
Mr. DURBIN. I announce that the Senator from New Jersey (Mr.
Lautenberg), the Senator from Washington (Mrs. Murray), and the Senator
from Florida (Mr. Nelson) are necessarily absent.
Mr. CORNYN. The following Senator is necessarily absent: the Senator
from Alaska (Ms. Murkowski).
The result was announced--yeas 56, nays 40, as follows:
[Rollcall Vote No. 120 Leg.]
YEAS--56
Baldwin
Baucus
Begich
Bennet
Blumenthal
Boxer
Brown
Cantwell
Cardin
Carper
Casey
Cochran
Collins
Coons
Cowan
Donnelly
Durbin
Feinstein
Franken
Gillibrand
Hagan
Harkin
Heinrich
Heitkamp
Hirono
Johnson (SD)
Kaine
King
Klobuchar
Landrieu
Leahy
Levin
Manchin
McCaskill
Menendez
Merkley
Mikulski
Murphy
Pryor
Reed
Reid
Rockefeller
Sanders
Schatz
Schumer
Shaheen
Stabenow
Tester
Udall (CO)
Udall (NM)
Vitter
Warner
Warren
Whitehouse
Wicker
Wyden
NAYS--40
Alexander
Ayotte
Barrasso
Blunt
Boozman
Burr
Chambliss
Coats
Coburn
Corker
Cornyn
Crapo
Cruz
Enzi
Fischer
Flake
Graham
Grassley
Hatch
Heller
Hoeven
Inhofe
Isakson
Johanns
Johnson (WI)
Kirk
Lee
McCain
McConnell
Moran
Paul
Portman
Risch
Roberts
Rubio
Scott
Sessions
Shelby
Thune
Toomey
NOT VOTING--4
Lautenberg
Murkowski
Murray
Nelson
The ACTING PRESIDENT pro tempore. Under the previous order requiring
60 votes for the adoption of this amendment, the amendment is rejected.
Mrs. FISCHER. Madam President, I rise today to speak on S. 601, the
Water Resources Development Act, WRDA. I would like to focus on Senate
Amendment No. 801, a bipartisan provision to provide regulatory relief
to our country's farmers and ranchers. Senate Amendment No. 801 is
based on S. 496, the Farmers Undertake Environmental Stewardship Act,
FUELS Act.
The FUELS Act was introduced by Senator Mark Pryor and has 10
cosponsors from both sides of the aisle including Senators John
Boozman, Saxby Chambliss, Thad Cochran, John Cornyn, Heidi Heitkamp,
James Inhofe, Johnny Isakson, Mike Johanns, Mary Landrieu, and myself.
It was referred to the Senate Environment & Public Works Committee, of
which I am a member.
I filed the FUELS Act as an amendment to WRDA when it was considered
earlier this year by the Senate Environment & Public Works Committee.
The amendment was not considered at that time.
The House version of the FUELS Act, H.R. 311, was introduced by
Congressman Rick Crawford and has 69 cosponsors. In the 112th Congress,
the FUELS Act, H.R. 3158, was reported by the House Transportation and
Infrastructure Committee and passed the House by voice vote. The House
Committee Report for H.R. 3158 (Report 112-643) provides background and
discusses the need for legislation:
The EPA mandated Oil Spill Prevention, Control and
Countermeasures program, or SPCC, requires that oil storage
facilities with a capacity of over 1,320 gallons must make
infrastructure improvements to reduce the possibility of oil
spills. The regulations require farmers to construct a
containment facility, like a dike or a basin, which must
retain 110 percent of the fuel in the container. These
mandated infrastructure improvements--along with the
necessary inspection and certification by a specially
licensed Professional Engineer will cost many farmers tens of
thousands of dollars. Sometimes compliance costs reach higher
than $60,000.
The SPCC program dates back to 1973, shortly after the
Clean Water Act was signed into law. In the last decade, it
has been rigorously applied to agriculture lands, and has
been amended, delayed, and extended dozens of times. The
Obama administration updated the rule in 2009 to expand
regulation under the SPCC program--applying it to nearly all
farms, and lifting a 2006 rule that suspended compliance
requirements for small farms with oil storage of 10,000
gallons or less. It applied to crop oil, vegetable oil,
animal fat, and even milk. Further revisions came during
April of 2011 when the EPA decided to exempt milk.
The 2009 rule--minus regulating milk spills was scheduled
to go into effect in November 2011. A few weeks before the
November deadline, EPA issued a statement saying they would
not begin enforcement until May of 2013. While enforcement
has been delayed until 2013, the underlying regulation has
not been fixed.
The FUELS Act requires that EPA revise the SPCC regulations
to be reflective of a producer's spill risk and financial
resources. The exemption level would be adjusted upward from
1,320 gallons of oil storage to an amount that would protect
small farms: 10,000 gallons. The proposal would also place a
greater degree of responsibility on farmers and ranchers to
self-certify compliance if their oil storage facilities
exceed the exemption level. If the amount exceeds 42,000
gallons, a professional engineer must certify the SPCC plans
for a farm. The bill provides another layer of protection by
requiring the producer to be able to demonstrate that he or
she has no history of oil spills, or to fully comply with the
SPCC regulations.
The University of Arkansas, Division of Agriculture did a
study that concluded that, for the entire country, H.R. 3158
would save farmers and ranchers up to $3.36 billion.
[[Page S3419]]
Agricultural production is an energy-intensive endeavor. Farmers need
fuel to power machinery, equipment, and irrigation pumps. Because these
operations are in rural areas where regular access to fuel supplies is
limited, producers rely upon on-farm fuel storage capacity to provide
the supply we need at the times we need it.
My family operates a cattle ranch in the Nebraska Sandhills, so I can
tell you firsthand that farmers and ranchers take great pride in the
work we do. Our success is the direct result of careful stewardship of
our natural resources, which we depend upon for our livelihoods. In
agriculture, we know the value of clean water, and we work hard to
protect the quality of our streams and aquifers. When it comes to
preventing spills from our on-farm fuel storage, farmers already have
every incentive to do so--not the least of which is the high cost of
diesel and gasoline.
I receive calls and letters every day from Nebraska farmers concerned
about the compliance challenges associated with the SPCC rule for on-
farm fuel storage, a regulation originally designed for oil refineries.
Allow me to share a portion of one such constituent email I recently
received on this issue:
We just became aware of this regulation yesterday through
an email from Farm Bureau. Since we have a large quantity of
on-farm storage capacity, we are not able to self-certify and
must hire a professional engineer to create a plan. In order
to find a qualified engineer, I first called the EPA, who
then told me to call the Region 7 office out of Kansas City,
who then told me to call the Nebraska Board of Engineers, who
then told me to call the Nebraska Society of Professional
Engineers, but the number on their website is no longer in
service. When I asked the gentleman from the Nebraska Board
of Engineers how much it would cost, he said anywhere from
$1500-$4800, depending on the complexity and the engineer's
ability to charge more due to high demand due to the
approaching deadline. When I asked the gentleman from the EPA
Region 7 office why we hadn't heard about it before now, he
said the ruling was in place for a long time but they haven't
done a good job of getting the word out.
When I shared these frustrations with Gina McCarthy, the nominee for
EPA Administrator, she acknowledged at her nomination hearing on April
11, 2013, that ``the agency has bridges to build with the agriculture
community.'' The fact is that good stewardship on farms and ranches and
environmental improvements are achieved because of producers'
application of new technology, best practices, and conservation
measures.
Centralized management and mandates are all too often arbitrary,
ineffectual, or even counterproductive, lacking the insight of local
stakeholders. I ask unanimous consent to have printed in the Record a
letter from the stakeholder groups on this issue that illustrates this
point, July 25, 2012 letter to the House Committee on Transportation
and Infrastructure. This letter from national agriculture groups--
including the American Farm Bureau Federation, American Soybean
Association, National Association of Wheat Growers, National
Cattlemen's Beef Association, National Chicken Council, National Corn
Growers Association, National Cotton Council, National Council of
Farmer Cooperatives, National Milk Producers Federation, National
Turkey Federation, and USA Rice Federation explains the arbitrary
nature of the current regulation: ``EPA's unusual threshold number of
1,320 gallons has no basis in science or in normal tank sizes for
agriculture.''
WRDA will require EPA, in consultation with the U.S. Department of
Agriculture, USDA, to conduct a study to determine the appropriate
exemption level ``to not more than 6,000 gallons and not less than
2,500 gallons, based on a significant risk of discharge to water.'' The
intent of this provision is to ensure that EPA is not unnecessarily
regulating on-farm fuel storage at capacities that do not pose a
significant risk to harming water quality. If there is not a
significant risk, then regulation is not justified. Compliance costs
should not be imposed where there is not a significant risk.
A March 2005 USDA report, Fuel/Oil Storage for Farmers and
Cooperatives, states, ``The SPCC rule will have a substantial cost of
compliance for the nation's farmers. A total compliance cost of almost
$4.5 billion is projected. There is very little evidence of fuel/oil
spill by farms.'' The report goes on to state that ``the 1,320 gallons
aggregated storage trigger is not supported by the survey data.
Compliance at this level not only ignores the physical layouts of farm
fuel storage but it also imposes a broad and extreme impact on the
majority of farms. Nearly 70 percent of all farms would have to comply,
at an average aggregated tank cost of $9,215 and a total compliance
cost of $4.5 billion.''
I also ask unanimous consent to have printed in the Record other
letters of support for the FUELS Act from agricultural stakeholders,
including letters from the American Farm Bureau Federation, USA Rice,
National Corn Growers Association, American Soybean Association,
National Cotton Council, National Association of Wheat Growers,
National Cattlemen's Beef Association, and National Council of Farmer
Cooperatives, NCFC.
This quote from the NCFC letter illustrates the points I have made,
further explains the need for the legislation, and emphasizes the
importance of the EPA-USDA study in ensuring that we are not
unnecessarily regulating capacity levels at which no significant risk
of oil spills has been demonstrated.
Without question the members of the agricultural sector who
grow the nation's food and rely on surface and well water to
meet their families' and agricultural operations' needs are
highly motivated to ensure that their environmental practices
are sound. These producers work daily to ensure a safe
environment for their children and the communities in which
they live. As such, they can and do take very seriously their
responsibility, consistent with the intent and spirit of the
SPCC provisions, to properly manage the oil resources used on
their operations.
Row crop farms, ranches, livestock operations, farmer
cooperatives and other agribusinesses pose low risks for
spills and are often seasonal in nature. In fact, data on oil
spill on farms, cooperatives, and other agribusinesses is
almost nonexistent. The Agency has failed to provide data or
even anecdotal evidence of agricultural spills to justify
such a resource-intensive rulemaking for America's farmers
and ranchers. The risk of such spills from agriculture is
extremely low and there is little to no evidence that
providing greater flexibility through S. 496 will harm the
environment.
The Senate's approval of WRDA will be a huge victory for farmers
throughout Nebraska and across America, who should not face unnecessary
regulations. The bipartisan provision regarding on-farm fuel storage
raises the exemption levels for fuel storage capacity to better reflect
the spill risk and financial resources of farms. I appreciate my
colleagues' support and cooperation on this issue.
There being no objection, the material was ordered to be printed in
the Record, as follows:
July 25, 2012.
Hon. John Mica,
Chairman, House Committee on Transportation and
Infrastructure, Rayburn House Office Building,
Washington, DC.
Hon. Nick Rahall,
Ranking Member, House Committee on Transportation and
Infrastructure,, Rayburn House Office Building,
Washington, DC.
Dear Chairman Mica and Ranking Member Rahall: The
undersigned organizations would like to express our strong
support for H.R. 3158, the Farmers Undertake Environmental
Land Stewardship (FUELS) Act, H.R. 3158 would bring some much
needed clarity to agriculture on the confusing requirements
of the EPA's Spill Prevention, Control, and Countermeasure
(SPCC) rule.
As you are aware, farming is an energy-intensive
profession. Producers need fuels stored on-farm for
everything from fueling mobile equipment to running
irrigation pumps. Many of these tanks are seasonal use and
stay empty much of the year due to the high cost of fuel and
the possibility of theft. Furthermore, EPA's unusual
threshold number of 1,320 gallons has no basis in science or
in normal tank sizes for agriculture.
In addition, EPA's bifurcation of the rule date (before and
after August 16, 2002) has brought immense, unneeded
confusion to the farming community as they try to determine
whether their current business model is the same that was in
operation prior to the 2002 date. The requirement to have
Professional Engineers (PEs) sign off on many SPCC plans adds
significant costs to the producer as well as the time spent
trying to find the limited number of PE's willing to work on
this rule in agricultural areas. It has already led to PEs
telling producers many things that aren't in the rule as they
try to oversell their product.
While the undersigned organizations welcome EPA's extension
of the deadline to May 10, 2013, that extension only applies
to farms in operation after August 16, 2002, further
confusing the industry. Furthermore, farms are still under
the costly requirements of providing secondary containment to
many seasonal-use tanks and developing complicated `spill
plans'. Despite pleas to the agency for compliance
assistance, they have been slow to respond, and despite
invitations
[[Page S3420]]
to grower meetings, they have little funding for travel.
Thankfully, this Congress has the opportunity to ease this
burden on rural America. H.R. 3158 would provide realistic
threshold sizes for tank regulation at the farm level and
allow more farms to self-certify thus saving time and money
that would otherwise be spent in hiring PE's to sign the SPCC
plans.
H.R. 3158 is common sense legislation that the undersigned
strongly support. We urge the Committee and Congress to pass
the bill to help relieve undue regulation on farmers and
rural America.
Sincerely,
American Farm Bureau Federation, American Soybean
Association, Arkansas Farm Bureau Federation, Montana
Grain Growers Association, National Association of
Wheat Growers, National Cattlemen's Beef Association,
National Chicken Council, National Corn Growers
Association, National Cotton Council, National Council
of Farmer Cooperatives, National Milk Producers
Federation, National Turkey Federation, Pennsylvania
Farm Bureau Federation, USA Rice Federation.
____
National Cotton
Council of America,
Washington, DC, May 1, 2013.
Hon. Mark Pryor,
U.S. Senate,
Washington, DC.
Hon. James Inhofe,
U.S. Senate,
Washington, DC.
Dear Senators Pryor and Inhofe. The National Cotton Council
(NCC) supports your efforts to advance S. 496, the FUELS Act.
Your bill will alleviate the costly regulatory burden on
farmers resulting from EPA's Spill Prevention, Control, and
Countermeasure (SPCC) Rule. EPA's unusual threshold number of
1,320 gallons has no basis in science or in normal tank sizes
for agriculture. S. 496 will raise that threshold to a more
realistic and practical level. Your bill will also allow more
farms to self-certify rather than hiring a qualified
professional engineer.
NCC is the central organization of the U.S. cotton industry
representing producers, ginners, merchants, cooperatives,
textile manufacturers, and cottonseed processors and
merchandisers in 17 states stretching from California to the
Carolinas. NCC represents producers who historically
cultivate between 10 and 14 million acres of cotton. Annual
cotton production, averaging approximately 20 million 480-lb
bales, is valued at more than $5 billion at the farm gate.
While a majority of the industry is concentrated in the 17
cotton-producing states, the down-stream manufacturers of
cotton apparel and home-furnishings are located in virtually
every state. The industry and its suppliers, together with
the cotton product manufacturers, account for more than
230,000 jobs in the U.S. In addition to the cotton fiber,
cottonseed products are used for livestock feed and
cottonseed oil is used for food products ranging from
margarine to salad dressing. Taken collectively, the annual
economic activity generated by cotton and its products in the
U.S. economy is estimated to be in excess of $120 billion.
Again, the Council supports and appreciates your efforts on
this issue.
Sincerely,
E. Keith Menchey,
Manager, Science & Environmental Issues.
____
May 6, 2013.
Hon. Mark Pryor,
U.S. Senate,
Washington, DC.
Hon. James Inhofe,
U.S. Senate,
Washington, DC.
Dear Senators Pryor and Inhofe, On behalf of the National
Association of Wheat Growers (NAWG), we appreciate your
efforts to advance S. 496, the Farmers Undertake
Environmental Land Stewardship (FUELS) Act, and would urge
its inclusion in the Water Resources Development Act (WRDA)
in the Senate. NAWG and its 22 affiliated state associations
work together to help protect and advance wheat growers'
interests.
As you are aware, farming is an energy-intensive
profession. Producers need fuels stored on-farm for
everything from fueling tractors to running irrigation pumps.
EPA's unusual 1,320 gallon regulatory threshold under the
Spill Prevention, Control, and Countermeasure (SPCC) rule has
no basis in science or in normal tank sizes for agriculture.
S. 496 would raise the exemption threshold to 10,000 gallons,
which is a more reasonable level. It would also allow more
farms with aggregate storage capacity between 10,000--42,000
gallons to self-certify rather than hiring a professional
engineer.
This common sense amendment to WRDA would ease the burden
on smaller producers, and we strongly encourage its adoption.
Thank you for your support on this important issue.
Sincerely,
Bing Von Bergen,
President,
National Association of Wheat Growers.
____
American Soybean Association,
St. Louis, MO, May 2, 2013.
Hon. James Inhofe,
U.S. Senate,
Washington, DC.
Dear Senator Inhofe: I am writing on behalf of the American
Soybean Association in support of your efforts to include S.
496, the FUELS Act, during Senate consideration of the Water
Resources Development Act (WRDA). ASA represents all U.S.
soybean farmers on domestic and international issues of
importance to the soybean industry. ASA's advocacy efforts
are made possible through the voluntary membership in ASA by
over 21,000 farmers in 31 states where soybeans are grown.
New rules will take effect at the end of this fiscal year
that will require that oil storage facilities with a capacity
of over 1,320 gallons make structural improvements to reduce
the possibility of oil spills. The plan requires farmers to
construct a containment facility, like a dike or a basin,
which must retain 110 percent of the fuel in the container.
Most soybean farmers find these threshold levels to be
unacceptably low. Your amendment would raise the exemption
level to a more reasonable 10,000 gallons for a single
container, with farmers able to self-certify compliance if
aggregate storage capacity is between 10,000 to 42,000
gallons.
ASA supports this amendment, and urges the Senate to adopt
it.
Thank you for your leadership.
Sincerely,
Danny Murphy,
ASA President.
____
May 2, 2013.
U.S. Senator Mark Pryor,
Dirksen Senate Building,
Washington, DC.
U.S. Senator James Inhofe,
Russell Senate Building,
Washington, DC.
U.S. Senator Deb Fischer,
Hart Building,
Washington, DC.
Dear Senators, The National Cattlemen's Beef Association
(NCBA) thanks you for your support of the Farmers Undertake
Environmental Land Stewardship (FUELS) Act (S. 496). The
FUELS Act eases the burden on farmers and ranchers in
implementing the Spill Prevention, Control and Countermeasure
(SPCC) rule for farms. NCBA represents over 100,000 cattle
producers across the country as the nation's oldest and
largest trade association representing cattle ranchers. Our
members believe the FUELS Act is a common-sense measure that
balances environmental concerns with the burden and cost of
the regulation.
U.S. cattle ranchers are proud of their tradition as
stewards of our country's natural resources. Our members take
very seriously their commitment to protecting water quality
from events like fuel spills. They also believe however that
the economic burdens of developing spill plans certified by a
profession engineer outweigh the marginal benefit that would
come with requiring these plans on all farms. Compliance with
the rule will cost producers thousands of dollars at a time
when their budgets are very limited due to historic drought
and other economic factors. In addition, in the rural areas
there is an inadequate number of Professional Engineers
(P.E.S) to do the engineering work required. The FUELS Act
takes into account these considerations. It raises the
threshold for fuel storage capacity from a mere 1,320 gallons
to 10,000 gallons, which eases the burden on many smaller
operations. It also allows more operations to self-certify
their plans, eliminating the need for more P.E.s and the
increased cost.
The SPCC rule for farms will take effect October 1, 2013
and therefore it is imperative that Congress act to prevent
this regulation from creating unnecessary financial burdens
on many farmers and ranchers. Thank you for your leadership
on this important issue.
Sincerely,
Scott George,
President,
National Cattlemen's Beef Association.
____
American Farm Bureau Federation,
Washington, DC.
Senator,
U.S. Senate,
Washington, DC.
Dear Senator: On behalf of the American Farm Bureau
Federation, I would like to commend you for introducing
S.496, the Farmers Undertake Environmental Land Stewardship
Act. This legislation will help clarify the uncertainty
created by existing regulations and the Environmental
Protection Agency's (EPA) confusing and potentially costly
compliance assistance efforts. AFBF supports the legislation
and hopes it will receive strong bipartisan support.
Modern agricultural equipment requires a lot of energy.
EPA's current regulatory requirements for farms appear to
have little basis in science nor alignment with tank sizes
currently in use in agriculture. Equally confusing is EPA's
inability to provide clarity with regard to language that
asks farmers and ranchers to comply with Spill Prevention,
Control and Countermeasure (SPCC) regulations if the
operation could reasonably be expected to discharge oil to
waters of the U.S. As it stands, this ambiguous term might
[[Page S3421]]
apply to features that farmers and ranchers would more likely
associate with dry land than water. It is therefore not
reasonable for EPA to include such an expectation if it has
done nothing to clarify a reasonable understanding of
jurisdiction waters that is consistent with congressional
intent and judicial case law
S. 496 is common-sense legislation that the Farm Bureau
strongly supports. We urge the Senate to pass this amendment
to help relieve undue regulation on farmers and rural
America.
Sincerely yours,
Dale Moore.
____
Senator Mark Pryor,
Dirksen Senate Office Building,
Washington, DC.
Senator Jim Inhofe,
Russell Senate Office Building,
Washington, DC.
Dear Senators Pryor and Inhofe: The USA Rice Federation
would like to express our strong support for S. 496, the
Farmers Undertake Environmental Land Stewardship Act (FUELS
Act), as an amendment to WRDA, the Water Resources
Development Act. This bill would bring some much needed
clarity to agriculture on the confusing requirements of the
EPA's Spill Prevention, Control, and Countermeasure (SPCC)
rule.
As you are aware, farming is an energy-intensive
profession. Producers need fuels stored on-farm for
everything from fueling mobile equipment to running
irrigation pumps. Many of these tanks are in use seasonally
and stay empty much of the year due to the high cost of fuel
and the possibility of theft. Furthermore, EPA's threshold
number of 1,320 gallons has no basis in science or in normal
tank sizes for agriculture.
In addition, EPA's bifurcation of the rule date (before and
after August 16, 2002) has brought immense, unneeded
confusion to the farming community as they try to determine
whether their current business model is the same that was in
operation prior to the 2002 date. The requirement to have
Professional Engineers (PEs) sign off on many SPCC plans adds
significant costs to the producer as well as the time spent
trying to find the limited number of PE's willing to work on
this rule in agricultural areas.
The USA Rice Federation has joined other groups in our
support of EPA's extension of the deadline to May 10, 2013,
but that quickly approaching extension only applies to farms
in operation after August 16, 2002, further confusing the
industry. Furthermore, farms are still under the costly
requirements of providing secondary containment to many
seasonal-use tanks and developing complicated and expensive
`spill plans'. Despite pleas to the agency for compliance
assistance, they have been slow to respond, and despite
invitations to grower meetings, they have little funding for
travel.
Thankfully, the Senate has the opportunity to ease this
burden on rural America. S. 496 would provide realistic
threshold sizes for tank regulation at the farm level and
allow more farms to self-certify thus saving time and money
that would otherwise be spent in hiring PE's to sign the SPCC
plans. S. 496 is a piece of common sense legislation that we
strongly support. We urge the Senate to pass the bill to help
relieve undue regulation on farmers and rural America as a
part of the Water Resources Development Act.
Sincerely,
Linda C. Raun,
Chairwoman,
USA Rice Producers' Group.
____
May 3, 2013.
Hon. Mark Pryor,
U.S. Senate,
Washington, DC.
Hon. James Inhofe,
U.S. Senate,
Washington, DC.
Dear Senators Pryor and Inhofe, On behalf of the National
Corn Growers Association (NCGA), we appreciate your efforts
to advance S. 496, the Farmers Undertake Environmental Land
Stewardship (FUELS) Act, and would urge its inclusion in the
Water Resources Development Act (WRDA) in the Senate. Founded
in 1957, NCGA represents approximately 38,000 dues-paying
corn growers and the interests of more than 300,000 farmers
who contribute through corn checkoff programs in their
states. NCGA and its 48 affiliated state associations and
checkoff organizations work together to help protect and
advance corn growers' interests.
As you are aware, farming is an energy-intensive
profession. Producers need fuels stored on-farm for
everything from fueling tractors to running irrigation pumps.
EPA's unusual 1,320 gallon regulatory threshold under the
Spill Prevention, Control, and Countermeasure (SPCC) rule has
no basis in science or in normal tank sizes for agriculture.
S. 496 would raise the threshold the exemption threshold to
10,000 gallons, which is a more reasonable level. It would
also allow more farms with aggregate storage capacity between
10,000-42,000 gallons to self-certify rather than hiring a
professional engineer.
This common sense amendment to WRDA would ease the burden
on smaller producers, and we strongly encourage its adoption.
Thank you for your support on this important issue.
Sincerely,
Pam Johnson,
President,
National Corn Growers Association.
____
National Council of
Farmer Cooperatives,
Washington, DC, May 6, 2013.
Hon. Mark Pryor,
U.S. Senate, Dirksen Senate Office Building,
Washington, DC.
Hon. James Inhofe,
U.S. Senate, Russell Senate Office Building,
Washington, DC.
Dear Senators Pryor and Inhofe: On behalf of the more than
two million farmers and ranchers who belong to farmer
cooperatives, the National Council of Farmer Cooperatives
(NCFC) applauds your outstanding work to create sound
policies that maintain the economic and environmental health
of farms, ranches, and the rural communities where they
operate. This commitment is evident in S. 496, the Farmers
Undertake Environmental Land Stewardship Act (FUELS Act).
The SPCC rule was originally promulgated on December 11,
1973. In 1991, a proposed rule was initiated but floundered
for more than 11 years. In a move that caught many off guard,
the Agency published a final rule on July 17, 2002, amending
the SPCC regulations. This new rule became effective on
August 16, 2002, and applied to any facility--including
farms--with an aggregate of 1,320 gallons of oil on their
property in aboveground tanks of 55 gallons or greater, where
the spill might eventually reach navigable waters. That
rulemaking showed a lack of understanding of production
agriculture and as a result, required multiple revisions and
compliance deadline extensions that spanned over decade.
While we welcomed the extension of the compliance deadline
to May 10, 2013, that extension only applied to those
agricultural operations that currently have an SPCC plan or
new facilities that came into operation after the rule was
effective. Specifically, if a farm was in existence prior to
August 16, 2002, the compliance extension was not applicable
as these farms were supposed to be in compliance with the
SPCC rule and have a plan in place. EPA's bifurcation of the
rule date (before and after August 16, 2002) has brought
immense, unneeded confusion to the farming community as they
try to determine whether their current business structure was
in place prior to the 2002 date.
At the same time, the Agency has unfortunately struggled
with efforts to prepare guidance and mobilize specific
outreach activities in a timely manner in order to provide
the farming community with the understanding and necessary
tools to comply with the final rule.
Throughout the history and evolution of the SPCC rule, NCFC
has strived to maintain a constructive dialogue with EPA to
ensure that any agency action regulating oil spill prevention
and response take into account the uniqueness of the
agricultural industry; be based on sound science, need, and
identified risk; and that final regulations be clear and
allow time for education and implementation. While the Agency
has shown good faith in working to improve the SPCC rule for
agriculture, these efforts have proceeded in fits and starts.
Without question the members of the agricultural sector who
grow the nation's food and rely on surface and well water to
meet their families' and agricultural operations' needs are
highly motivated to ensure that their environmental practices
are sound. These producers work daily to ensure a safe
environment for their children and the communities in which
they live. As such, they can and do take very seriously their
responsibility, consistent with the intent and spirit of the
SPCC provisions, to properly manage the oil resources used on
their operations.
Row crop farms, ranches, livestock operations, farmer
cooperatives and other agribusinesses pose low risks for
spills and are often seasonal in nature. In fact, data on oil
spill on farms, cooperatives, and other agribusinesses is
almost nonexistent. The Agency has failed to provide data or
even anecdotal evidence of agricultural spills to justify
such a resource-intensive rulemaking for America's farmers
and ranchers. The risk of such spills from agriculture is
extremely low and there is little to no evidence that
providing greater flexibility through S. 496 will harm the
environment.
We strongly believe S. 496 will bring much needed clarity
to agriculture on the confusing requirements of the SPCC
rule. Specifically, it would provide realistic threshold
sizes for tank regulation at the farm level and allow more
farms to self-certify thus saving time and money that would
otherwise be spent in hiring Professional Engineers to
develop and sign the SPCC plans.
The FUELS Act is common-sense legislation and we strongly
encourage the Senate to support its passage as part of the
Water Resources Development Act.
Sincerely,
Charles F. Conner,
President & CEO.
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