[Congressional Record Volume 160, Number 100 (Wednesday, June 25, 2014)]
[Senate]
[Pages S3952-S3955]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EPA OVERREGULATION

  Mr. THUNE. Mr. President, as I mentioned previously, my colleagues 
and I intend to enter into a colloquy on the floor of the Senate to 
talk about an issue that is important to many of our States. The 
Senator from Wyoming, the Senator from North Dakota, and the Senator 
from Kansas are all very much impacted, as are our constituents, by the 
EPA's pursuing and being particularly active in issuing misguided and 
ill-conceived proposals that will do little more than overregulate and 
burden hard-working Americans, businesses, and families. One of the 
worst of these overreaches is the Obama EPA's proposal to significantly 
expand its authority to regulate small wetlands, creeks, stock ponds, 
and ditches under the Clean Water Act.
  If the EPA's proposal goes through, the Federal Government could 
expand its regulatory authority from navigable waters such as lakes and 
rivers to the ditches on your grandfather's property or the dry creek 
bed behind your house. That is what we are talking about. This could 
lead to untold compliance costs and bureaucratic wrangling for ordinary 
families and literally cripple farmers and businesses.
  The EPA and the Army Corps of Engineers proposed Clean Water Act 
jurisdictional rule seeks to redefine ``waters of the United States'' 
which would effectively eliminate the Clean Water Act's ``navigable 
waters'' provision. Congress specifically referenced ``navigable 
waters'' in the Clean Water Act to guarantee limits to Federal 
authority.
  Bodies of water currently deemed ``waters of the United States'' are 
subject to multiple regulatory requirements under the Clean Water Act, 
including permitting and reporting, enforcement, mitigation, and 
citizen suits. Despite strong bipartisan opposition in Congress, the 
EPA and the Corps have relentlessly pursued an expansion of the 
definition of ``waters of the United States.''

       Additionally, the EPA is pressing forward despite two 
     recent Supreme Court cases that expressly rejected the 
     Agency's broad assertions of regulatory authority and made it 
     clear that not all bodies of water are subject to Federal 
     jurisdiction under the Clean Water Act.

  -If the EPA's power grab is left unchecked, few bodies of water will 
be able to escape the regulatory reach of the Obama EPA.
  This proposed new definition could apply to a countless number of 
small wetlands and creeks that are typically regulated at the State 
level. More specifically, the proposed rule extends the reach of 
Federal regulatory authority by adding ``interstate wetlands'' and all 
``adjacent waters'' to the definition of ``Waters of the United 
States.''
  It also deems all tributaries to be categorically jurisdictional, and 
for the first time ever ditches--ditches--are defined as jurisdictional 
tributaries. This is cause for concern. This should be disturbing and 
troubling to all Americans--subjecting roadside, irrigation, and storm 
water ditches to regulation under the Clean Water Act, which would have 
practical consequences not fully evaluated by the EPA.
  These bodies of water are hardly navigable and are, in many cases, 
seasonal or sporadic depending on the weather. The proposal also states 
that the EPA could regulate water on a case-by-case basis--dangerous 
development for a regulatory agency. The American public is right to be 
wary of the EPA granting itself such discretion. A case-by-case 
approach is confusing and will inevitably lead to even more litigation.
  This proposal exceeds the established authority of the EPA by 
infringing upon what has long been a State responsibility under the 
Clean Water Act. All States--my State of South Dakota, Senator Roberts' 
State of Kansas, Senator Hoeven's State of North Dakota--have an 
inherent interest in providing for the well-being of their citizens and 
businesses and ensuring safe and enduring water resources that play a 
large role in achieving that end.
  My home State of South Dakota's No. 1 industry is agriculture. We 
help to feed the world. This cannot be done without clean and 
dependable sources of water for our farmers and ranchers. This 
expansion of the EPA's regulatory authority would have significant 
economic impact for property owners who would likely be hit with new 
Federal

[[Page S3953]]

permits, compliance costs, and threats of significant fines.
  Agriculture is a time-sensitive business, and the burdens this 
proposal would place on South Dakota farmers would strain the ability 
of producers to fertilize, to plant, and to irrigate when the seasons 
and weather conditions dictate. Rather, permits and regulations would 
bind the ability of producers to get their crops in when they need to 
and limit what they could do to ensure successful yields.
  Tourism is also a vital industry in my State of South Dakota. The 
Black Hills, which are home to Mount Rushmore, draw nearly 3 million 
visitors each year. The rugged beauty of the Black Hills depends upon 
the responsible water management of the State and county governments. 
According to a letter I just received from the Pennington County Board 
of Commissioners, which includes much of the Black Hills, their ability 
to manage the water resources in the Black Hills area is greatly 
threatened by the EPA's proposed rule.
  Similarly, South Dakota's thriving hunting industry is sustained in 
part by practical and responsible water management, allowing ducks and 
pheasants to thrive in prairie potholes and creeks. These are connected 
to waters already responsibly managed by the State of South Dakota. 
Another layer of Federal regulation will only add needless costs to 
protecting these waters.
  Additionally, cities in my State are already struggling to grow under 
new taxes and regulations imposed by the Obama administration. The 
EPA's latest overreach would provide environmental groups with yet 
another powerful tool to delay and prevent development and interfere 
with land use activities on property owned by homeowners, small 
businesses, and municipalities.
  I have heard from South Dakotans in nearly every industry, and the 
common consensus is this: This rule is bad for business--certainly in 
places such as South Dakota and Kansas and North Dakota and Wyoming 
but, I would argue, all across this country.
  So I am proud to stand with my colleagues on the floor today in 
support of legislation that would stop the EPA's proposed Clean Water 
Act jurisdictional rule and protect farmers, ranchers, and homeowners 
across the country from the latest regulatory overreach by the Obama 
administration.
  Mr. President, the Senator from North Dakota, I think, will carry on 
with the colloquy between our colleagues from the Midwestern part of 
the country and speak to the impacts of this ill-proposed rule on the 
people they represent in their respective States.
  I yield for the Senator from North Dakota.
  The ACTING PRESIDENT pro tempore. The Senator form North Dakota.
  Mr. HOEVEN. Mr. President, I ask unanimous consent that we be allowed 
until 10:28 a.m. for the purposes of the colloquy.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Without objection, it is so ordered.
  Mr. HOEVEN. Mr. President, I am pleased to be here this morning with 
the distinguished Senator from South Dakota, as well as the esteemed 
Senators from both Kansas and Wyoming, to talk about this regulation 
that is clearly an overreach by the EPA. It needs to be addressed. We 
have measures to address it.
  As the Senator from South Dakota said so well, this is a regulation 
that is a huge problem for our farmers and ranchers, but really, as he 
said, we have been hearing from almost every industry sector that this 
is a big-time problem that needs to be addressed, and needs to be 
addressed now.
  So, as I said, we have legislation both in committee--I have 
legislation in the Appropriations Committee, in the Energy and Water 
Subcommittee, that would address it--and the good Senator from Wyoming 
has legislation that he has filed, and he is requesting a floor vote.
  But in both cases, whether it is in committee or here on the floor, 
what we are saying is give us a chance to vote on this issue. This is 
an important issue for the American people and Senators need to 
indicate where they stand. I do not know why everybody should not be 
proud to do that--to vote on this regulatory overreach and to address 
this challenge for the American people. It is a very straightforward 
issue.

  That is what we are here to discuss and debate this morning, and we 
sincerely hope, as we continue to highlight this very important 
problem, the leadership of this body is going to step up on behalf of 
the American people and allow--allow--the Senate to address it through 
its rightful duty, which is to vote on issues important to the American 
people.
  To continue this important dialog, I turn to the Senator from Kansas 
and ask for his comments on behalf of his constituents in his State in 
terms of what he is hearing and the problems this waters of the U.S. 
proposed regulation put forward by the EPA creates in the great State 
of Kansas.
  The ACTING PRESIDENT pro tempore. The Senator from Kansas.
  Mr. ROBERTS. Mr. President, I thank the distinguished Senator for 
yielding. I thank Senator Hoeven for his leadership on this issue and 
for bringing this issue to the attention of all Members, more 
especially those of us in our conference, but this should be a 
bipartisan effort.
  I rise today to join my colleagues in discussing yet another--yet 
another--job-stifling and unjustified regulation proposed by this 
administration.
  The EPA, the Army Corps of Engineers, and the Department of 
Agriculture--what? the three horsemen of the regulatory apocalypse--
have proposed a rule that after careful review and study we believe 
would allow the EPA to further expand its control of private property--
control of private property--under the guise of the Clean Water Act.
  They claim that the proposed ``Waters of the United States'' rule 
``simply clarifies their scope of jurisdiction.'' Well, here is the 
catch: The ``clarification'' is from categorically classifying so-
called ``other waters'' as regulated, even if the water cannot be 
navigated and was previously outside of their authority.
  This proposal is another example of why many Kansans, many farmers 
and ranchers from Wyoming, South Dakota, North Dakota, feel their way 
of life is under attack by the Federal Government's overreach and 
overregulation.
  To date, the Kansas associations of grain and feed, agribusiness 
retailers, ethanol producers, soybeans, wheat growers, pork producers, 
livestock, watersheds, golf course superintendents, and the Kansas 
Cooperative Council all have opposed this rule. Similar organizations 
in Wyoming and North Dakota and South Dakota and all across farm 
country have also been in contact with their Senators. These 
organizations and their members fear the EPA will use this rule to 
further regulate farmers and ranchers, as well as other normal land 
uses, such as building homes.
  If finalized, this rule could have the EPA requiring a permit for 
ordinary fieldwork or for the construction of a fence or for even 
planting crops near certain waters.
  Kansans are justifiably worried that the permits would be time-
consuming, costly, and that the EPA could ultimately deny the permits, 
even for longstanding and normal practices--even practices that help 
the environment.
  A friend of mine, Kansas farmer Jim Sipes--he is out there in Manter, 
KS; that is way out there; that is way out there by the Colorado 
border; he still has not gotten much rain after 3 years--he explains 
his view and said: ``The only thing that is clear and certain is that, 
under this rule, it will be more difficult to farm and ranch, or make 
changes to the land--even if those changes would benefit the 
environment.'' He knows what he is talking about.
  For the folks back home, the issue of the EPA trying to control more 
water, whether it is actually ``navigable,'' is not new. We have had 
this before. We have been down a similar road before with the agency 
wanting to regulate all of the water in the country, even small farm 
ponds, I would tell my colleagues, that no self-respecting duck would 
ever land on.
  Now, I think maybe there is a file, I say to Senator Hoeven--I think 
there is a file down there in the basement of the EPA. It must be a big 
one: rural fugitive dust; the navigable waters situation; endangered 
species, so there is the taking of farmers' ground to force

[[Page S3954]]

them to plant native prairie grass to save the lesser prairie chicken, 
which we cannot even find; and on and on and on and on. I think it must 
be labeled: What Drives Farmers and Ranchers Crazy. And about every 
second foggy night, why, somebody pulls open that file and we go 
through the whole thing again. It is not as though we have not done 
this before on this issue.
  After personally calling on the EPA and Army Corps to withdraw the 
proposed rule, I want to make sure the expansion of regulatory 
jurisdiction over ``Waters of the United States''--let's shelve it for 
good. Let's shelve it for good.
  Last week I joined the distinguished Senator from Wyoming Mr. 
Barrasso and the majority of our caucus in introducing straightforward 
legislation that prohibits the Administrator of the EPA and the 
Secretary of the Army--the Secretary of the Army, for goodness sakes--
from finalizing the rule or trying a similar regulation in the future. 
Put the file back. Just file it away. Maybe put it somewhere where the 
hard drive is that Lois Lerner lost.
  We will continue working here in the Senate, as well as the House, to 
either convince the administration to back off of this proposal or, if 
necessary, to block the agencies from moving forward. We have stopped 
this type of foolishness before, and I expect we will be successful 
again.
  I thank my colleagues for their arduous efforts.
  I say to Senator Hoeven, thank you for leading this effort.
  The ACTING PRESIDENT pro tempore. The Senator from North Dakota.
  Mr. HOEVEN. Mr. President, I would like to thank, again, the Senator 
from Kansas. He is somebody who has been involved in agriculture for--
well, he is still a very young man--he is somebody who has been 
involved in agriculture for a long time and certainly understands what 
goes into farming.
  Think about it. Farmers and ranchers work the land, but that is also 
their home. Who knows the land better? Who knows the streams and the 
potholes and the ditches and the roads, who knows their land better 
than a farmer or a rancher? And who is more concerned about it? Really. 
Who is more concerned about it? That farmer or somebody who works at 
the EPA here in Washington, DC? That is important to think about as we 
look at this kind of regulatory overreach that goes to the very private 
property rights that are the foundation of this country.
  I thank the Senator from Wyoming for his leadership and for the 
legislation he has put together that he has filed and that we should be 
voting on right now that I am very pleased to cosponsor.
  I would ask the Senator from Wyoming for his comments on this issue 
and his legislation.
  The ACTING PRESIDENT pro tempore. The Senator from Wyoming.
  Mr. BARRASSO. Mr. President, I would like to thank my friend and 
colleague, the former Governor of North Dakota, now the Senator from 
North Dakota, who knows these issues very well. And I would like to 
thank the Senator from Kansas, who talked about the administration's 
overreach and overregulations and the impact it has on the economy of 
the United States.
  There is very disturbing news out this morning reported by Reuters. 
The headline: ``Bad to worse: US economy shrank more than expected in 
Q1 [of this year].'' U.S. economy shrank more than expected in Q1 of 
this year.

  The U.S. economy contracted, not grew, not stayed the same but 
contracted at a much steeper pace than previously estimated in the 
first quarter. The Commerce Department said on Wednesday that gross 
domestic product fell at a 2.9-percent annual rate, the economy's worst 
performance in 5 years--worst performance in 5 years.
  It is because of the overreach, the overregulation that is coming out 
of this administration. That is why I rise in support with my 
colleagues and my colleagues who have very serious concerns about the 
EPA's proposed Clean Water Act jurisdictional rule.
  Many if not all of these colleagues recently joined me in introducing 
the Protecting Water and Property Rights of 2014 Act. In fact, 34 
Senators have cosponsored this bill. More continue to join the 
important effort. They have joined this effort because this important 
and consequential legislation restricts the expansion of Federal 
authority by this EPA, which the EPA is trying to use to encompass all 
wet areas of farms, of ranches, suburban homes all across America.
  More specifically, this bill eliminates the administration's proposed 
rule to implement the expansion of such Federal authority. Through this 
recently proposed rule, Federal agencies are attempting to expand the 
definitions of waters of the United States. They want to include 
ditches and other dry areas where water flows only for a short duration 
after a rainfall, but the government wants to control even that.
  Federal regulations have never defined ditches and other upland 
drainage features as waters of the United States, but this proposed 
rule does. It will have a huge impact on farmers, on ranchers, on small 
businesses that need to put a shovel in the ground to make a living. 
The rule amounts to a Federal user fee for farmers and ranchers to use 
their own land after it rains.
  It forces suburban homeowners to pay the EPA and Army Corps to use 
their backyards after a storm. Let's be clear what is proposed in this 
rule. It takes money away from family farmers and ranchers who just 
want to grow crops, raise cattle, and it taxes suburban middle-class 
families who just want to recreate in their own backyard without Uncle 
Sam bankrupting them for the privilege.
  This is the worst thing I think we can do to Americans in this 
economy, an economy, as I say, that is shrinking--a shrinking economy, 
not just stagnant, not just sitting there but actually shrinking. That 
is why my legislation is endorsed by the American Farm Bureau, as well 
as the American Land Rights Association. It is because they know how 
devastating this rule is to farmers, to ranchers, to homeowners, and to 
other small businesses.
  Despite what this administration may say and has said about providing 
``flexibility''--they use that word--for farmers and ranchers in the 
proposed rule, the farmers and ranchers of America are not deceived. 
They will not be misled by this administration. According to the June 
edition of the publication National Cattlemen, an article entitled: 
``EPA's Ag Exemptions for WOTUS''--waters of the United States.
  Let me point out that the National Cattlemen--it is the trusted 
leader and definitive voice of the beef industry, the trusted leader 
and definitive voice of the beef industry, and the official publication 
of the National Cattlemen's Beef Association. What that front page 
article says is:

       Although agriculture exemptions are briefly included, they 
     do not come close--

  Do not come close--

     to meeting the needs of the cattlemen and women across the 
     country.

  The president of the National Cattlemen's Beef Association, McCan, 
stated in the article:

       For example, wet spots or areas in a pasture that have 
     standing water, under this rule could potentially be 
     affected. We now need permission to travel and move cattle 
     across these types of areas.

  The article lists some other major areas of agriculture not exempted 
by the EPA's proposed rule:

       Activities not covered by the exemptions include 
     introduction of new cultivation techniques, planting 
     different crops, changing crops to pasture, changing pasture 
     to crops, changing cropland to orchards and to vineyards and 
     changing crop land to nurseries.

  Congress never intended the Clean Water Act to be used this way. The 
Senate, under Democratic control, never brought legislation such as the 
Clean Water Restoration Act to the floor that would have removed the 
word ``navigable'' from the Clean Water Act. Why? Because they knew it 
would have been defeated.
  In fact, 52 bipartisan Members, a bipartisan group, a majority of the 
Senators voted for the Barrasso amendment that rejected the EPA's 
proposed guidance to seize all State waters during the Water Resources 
Development Act. Yet this proposed rule by the administration is 
circumventing Congress by effectively writing ``navigable'' out of the 
Clean Water Act.
  Just as troubling as ignoring Congressional intent, the proposed rule 
disregards the fundamental tenet embodied in two decisions of the U.S. 
Supreme Court. Those are decisions that limit Federal jurisdiction. It 
is particularly troubling that the proposed rule allows the Army Corps 
and EPA to

[[Page S3955]]

regulate waters now considered entirely under State jurisdiction.
  This unprecedented exercise of power will allow the EPA to trump 
States rights and wipe out the authority of State and local governments 
to meet local land and water use decisions. It is particularly 
troubling when we have seen no evidence--no evidence at all--that the 
States are misusing or otherwise failing to meet their 
responsibilities. Enormous resources will be needed to expand the Clean 
Water Act Federal Regulatory Program.
  Not only will there be a host of landowners and project proponents 
who will now be subject to the Clean Water Act's mandates and the cost 
of obtaining permits, but an increase in the number of permits needed 
will lead to longer delays in actually getting the permits. Increased 
delays in securing permits will impede a host of economic activities in 
50 States, cost thousands of American jobs.
  Farming and ranching, commercial and residential real estate 
development, electric transmission, transportation projects, bridge 
repairs, energy development, and mining will all be negatively 
affected. This is at a time when the United States has seen our economy 
shrink. The Reuters story today talks about shrinkage much more than 
predicted previously. Regulations such as this continue to damage 
America, damage our country, damage our families, damage our 
communities, damage the hard-working men and woman who want to go to 
work, put food on the table for their kids, raise their families, and 
go to work, but yet we have an administration that does not seem to 
see, is blinded by a role of big government. They are blinded from 
seeing the impact these onerous, expensive, burdensome regulations are 
having on the American public and certainly on our economy, as pointed 
out today in this news release from Reuters about the shrinking of the 
American economy.
  The PRESIDING OFFICER. The Senator from North Dakota.
  Mr. HOEVEN. Mr. President, I thank the Senator from Wyoming for his 
leadership on this important issue and pick up on a point he just 
expressed: Why are we not demanding in this body that we vote on 
legislation to address this proposed regulation?
  As he said so clearly and eloquently, this is an issue this Congress 
rejected. So now when one of the agencies, the EPA, goes around 
Congress to set up a proposed regulation that does something the 
Congress expressly rejected, why in the world are we not voting? It is 
our responsibility and our right to do so.
  America's farmers and ranchers and entrepreneurs go to work every day 
to build a stronger nation. Thanks to those hard-working men and women, 
we live in a country where there is affordable food at the grocery 
store, where a dynamic private sector offers Americans the opportunity 
to achieve a brighter future. In these difficult economic times, the 
Federal Government should be doing all it can to empower those who grow 
our food and those who create jobs. Yet instead regulators are stifling 
growth with burdensome regulations that generate cost and uncertainty.
  Look at the economic data, as the Senator from Wyoming said, that 
came out this morning. What are we doing stifling that entrepreneurial 
activity, that entrepreneurship, that creativity that makes the 
American economy go? This proposed regulation is an example of that. It 
touches almost every industry.
  We are talking about our farmers and ranchers, but it goes across all 
industry sectors. The proposed rule by the Army Corps of Engineers and 
the Environmental Protection Agency to regulate the waters of the 
United States is exactly the type of regulation that is hurting our 
economy, hurting our entrepreneurs, hurting our farmers, and our 
ranchers.
  The waters of the United States rule greatly expands the scope of the 
Clean Water Act, regulations over America's streams and wetlands. If we 
take a look at a chart I brought, I know it is a little hard to see, 
but it demonstrates the incredible reach of this proposed regulation.
  If we look at the chart, we can see it is a real power grab that will 
enable the EPA to stretch its tentacles far into the countryside and 
far beyond.
  It is not just our farmers and ranchers and water in a ditch or water 
in a field that is there for maybe 1 week when it rains and the rest of 
the time it is dry, it affects construction, it affects powerplants, it 
affects stormwater drainage. I cannot think of anything it is not going 
to affect.
  Is that how our country works now? Instead of the people who are duly 
elected to pass laws for this country, we stand here and we do not get 
to vote on any of these issues we were elected to vote on, and someone 
who is not elected at the EPA or the Corps, they put regulations in 
place that affect virtually every single American. Is that how this 
works now? Is that what it has come to?
  Because that is exactly what is happening. That is exactly what is 
going on. The Supreme Court has found that Federal jurisdiction under 
the Clean Water Act extends to navigable waters. I do not think anyone 
is arguing about the EPA's ability to regulate the Missouri River or 
other navigable bodies of water--rivers, lakes--but the Supreme Court 
also made clear that not all bodies of water are under the EPA's 
jurisdiction.
  So under a significant nexus determination, the EPA has decided: We 
do not care what the Supreme Court said. We are going to make sure they 
are all under our jurisdiction, not pursuant to any law. We are going 
to put a regulation in place that enables us to do whatever we want 
with any body of water, not just navigable bodies of water.
  Again, that is what I have tried to show on this chart. Ephemeral 
streams, tributaries, all waters deemed adjacent to any navigable body, 
including dry ditches, including water in fields that may be there for 
a short period of time, runoff from storm sewers, you name it.
  That is not the intent of the law. That is not the intent of the 
Supreme Court ruling. That is why it is so important that we address 
it. That is what we propose to do. In the legislation we put forward, 
both on the floor, in the bill filed by the Senator from Wyoming, the 
legislation I have offered in Energy and Water, we straightforwardly, 
we simply and straightforwardly address this regulation.
  How much time is remaining?
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. HOEVEN. I ask unanimous consent for 2 additional minutes.
  The PRESIDING OFFICER. Is there objection?
  Mr. CARDIN. Mr. President, I would have no objection as long as equal 
time is added to the block that follows for the Democrats.
  The PRESIDING OFFICER. Is there objection to the modification?
  Mr. HOEVEN. I have no objection.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HOEVEN. Mr. President, that is our point. We understand that 
people bring different points of view to this deliberative body, but 
the point is this: This is an important issue that affects virtually 
all Americans, that affects our economy, that affects our farmers, our 
ranchers, our businesses, the energy sector. You name it.
  When we have something of this importance, we have an absolute 
responsibility to the people of this country to show where we stand on 
the issue, meaning we have a responsibility to vote on this and the 
other important issues before this body. That is what we are asking 
for.
  We are saying everybody has a right to bring their point of view and 
their opinion, but we all have a right and a responsibility to vote on 
these important issues. That is what we are asking for, a vote on this 
important issue for the benefit of the American people.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Maryland.
  Mr. CARDIN. Mr. President, it is our understanding that Democrats 
control the next 32 minutes.
  The ACTING PRESIDENT pro tempore. Democrats control the next 30 
minutes.

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