[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call be rescinded.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.

                          ____________________