[Congressional Record Volume 160, Number 86 (Wednesday, June 4, 2014)]
[Senate]
[Pages S3389-S3390]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      WATERS OF THE UNITED STATES

  Mr. JOHANNS. Mr. President, I rise today to discuss EPA's joint 
proposed rule redefining waters of the United States.
  Claims to the contrary notwithstanding, EPA has once again thrown 
down the gauntlet with this massive expansion of Federal jurisdiction. 
This new rule in its essence declares almost every body of water to be 
within Federal regulatory jurisdiction. By conjuring up even the most 
remote connection to a navigable body of water, EPA is now claiming 
they can regulate ponds, ditches, and even low-lying areas that are 
actually dry during most of the year. EPA seems to think it has 
jurisdiction if there is just a chance that a speck of dirt can travel 
through a stream, a pond, or even a field to traditional navigable 
water, and that is clearly not what Congress intended. But the EPA, the 
Army Corps of Engineers, and even the USDA are touting that they 
listened to agriculture and that farmers' and ranchers' concerns were, 
in fact, reflected in this proposal. But if this 370-page rule actually 
provides certainty and maintains exemptions for farmers, as EPA claims, 
then why are most farm groups so opposed to it?
  We have seen EPA become better and better at messaging to farmers, 
but unfortunately the actual language of the regulations--their very 
aggressive approach--really hasn't changed one bit. While EPA has shown 
a willingness to meet and to listen, the reality is that the words on 
paper really are what matter.
  When Administrator McCarthy came before an appropriations 
subcommittee a few weeks ago, I pushed her on this issue. Not 
surprisingly, she told me they are really trying to get this right and 
listen to agriculture's concerns across the country. But as it stands 
right now, folks in farm country are justifiably alarmed.
  EPA will point to a few exclusions in the rule, but if you look 
closely, these exemptions are so very narrowly crafted that very few 
waters actually would escape EPA's regulatory grasp and overreach. For 
example, under the proposed rule, waters that are perennial, 
intermittent, or ephemeral can be subject to EPA regulation. That is 
right--EPA is trying to regulate bodies of water that only have water 
in them when it is raining. That is just one of the many examples in 
this rule where it is clear that EPA is trying to push the envelope--
and push it as far as they can.
  In its so-called fact sheet on the benefits of the rule for 
agriculture, EPA touts that exemptions are, in fact, preserved for 
agriculture. Not only that, but according to the fact sheet, EPA will 
now exempt 56 conservation practices from permitting requirements. It 
says this will provide certainty and predictability. That all sounds 
good as messaging until you actually examine the claims. These 
exemptions only apply to dredge and fill permitting. All other Clean 
Water Act permitting requirements do not have exemptions for 
agriculture. So whether a permit is required for other provisions of 
the act is simply a function of whether the related waters are Federal 
waters. Thus, because EPA vastly expanded the definition of Federal 
waters, farmers are going to get a rude awakening when they are told 
they need a 402 permit before applying pesticides or when they realize 
this rule may require them to have a spill prevention, control, and 
countermeasure plan in place or when they realize their farm pond is 
not exempt simply because they allow livestock to drink from it. 
Imagine the dismay of farmers when they realize that the much-touted 
exemptions are essentially meaningless and that they are subject to 
fines of tens of thousands of dollars per day.
  Nonetheless, the Obama administration continues to tout this list of 
56 conservation practices that they are proposing to exempt as if 
farmers should fall silent in gratitude. It is the classic smoke and 
mirror approach that has led to the tremendous mistrust of this 
administration. They say one thing while putting policies in place that 
dictate something entirely different.
  Consider this: Even these narrow conservation exemptions are wrapped 
in fine print and redtape. EPA also says that in order to be exempt, a 
conservation practice must specifically comply with USDA standards. 
Again, it sounds reasonable, except that these standards, which were 
developed for voluntary conservation programs, were never intended to 
be the only means of avoiding a regulatory hammer. These are gold-
plated standards. They are also very prescriptive. That may be fine for 
voluntary programs that come with compensation for compliance. It is 
not fine if farmers must follow them or face huge fines. There is 
nothing voluntary about that.
  Can these farmers be sued because they didn't follow supposedly 
voluntary USDA standards? Can EPA take action against these farm 
families? Who will enforce compliance with those conservation 
practices? Will it be the USDA or will it be the EPA? Farmers generally 
trust USDA's voluntary approach to conservation efforts, but what 
happens to that trust if USDA is suddenly thrust into the business of 
enforcing EPA regulations on the farm? Conversely, is EPA going to hold 
any sway over USDA's voluntary conservation standards? Since they are 
planning to use those standards to regulate farms, this is a great 
concern.
  Let me mention one additional cause for concern. These supposedly 
exempt practices are not even in the proposed rule; they are in a 
separate document from the rule, and that document can change on the 
whim of the EPA without warning and with no opportunity whatsoever for 
public comment. So ranchers doing a practice consistent with the list 
may get the rug pulled out from under them.
  EPA claims this rule will provide certainty and predictability, and 
in one respect they are right. As a constituent of mine from Ogallala 
rightly put it, ``The only clarity the proposed rule provides is to put 
me on notice that everything is a water of the U.S. and that I need a 
permit to do anything.''
  So it appears that in an effort to provide clarity, EPA has very much 
done

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the opposite. And I have just scratched the surface here today. But EPA 
still has an opportunity to fix this mess. While the tendency of this 
administration has been to overregulate from day one, there is still an 
opportunity to pull back the rule and admit they went too far.
  I had high hopes when Administrator McCarthy took the reins and 
expressed a desire to build trust with the ag community. In fact, she 
called it a priority. This rule, though, delivers the opposite message. 
If Administrator McCarthy is serious about having a relationship with 
the people I represent--ag producers--it would send such a powerful 
signal to say: Hold on. Let's withdraw the rule. Let's not follow this 
misguided direction. Call a timeout, and people would see that and say: 
I am going to listen. People would receive that so positively. This 
would certainly get the attention of the ag community and really begin 
to build bridges instead of outlining rhetorical wishes.
  The window of opportunity is still open, and I hope the Administrator 
seizes it by withdrawing the rule.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Missouri.

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