[Congressional Record Volume 160, Number 122 (Thursday, July 31, 2014)]
[Senate]
[Pages S5302-S5303]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          MUDDYING THE WATERS

  Mr. BARRASSO. Madam President, I ask unanimous consent to have 
printed in the Record a column written by Mr. Dennis Sun, Publisher of 
the Wyoming Livestock Roundup, entitled ``Muddying the Waters.'' The 
article was published on June 21 of this year.
  Through this recently proposed Clean Water Act jurisdictional rule, 
Federal agencies are attempting to expand the definition of ``waters of 
the United States'' to include ditches and other dry areas where water 
flows only for a

[[Page S5303]]

short duration after rainfall. Federal regulations have never defined 
ditches and other upland drainage features as waters of the United 
States. But this proposed rule does, 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.
  Dennis knows what the true impact of this rule will be to rural 
communities. He is a fourth-generation rancher from Central, WY. Mr. 
Sun stated in his column that ``according to the EPA, the proposed 
definition of waters of the U.S. would increase predictability and 
consistency for CWA programs, and as a lot of folks see it--that's 
right--we know we would go out of business instead of just maybe.'''
  Dennis goes on to say that ``our government has run amuck, and we 
shouldn't like it. . .'' He is right. This proposed rule by the 
administration is circumventing Congress by effectively writing 
navigable out of the Clean Water Act, thus allowing the EPA and Army 
Corps of Engineers to seize all wet areas of the States. Just as 
troubling as ignoring congressional intent, the proposed rule 
disregards the fundamental tenet embodied in two landmark cases decided 
by the U.S. Supreme Court that there are limits to Federal 
jurisdiction.
  This unprecedented exercise of power will allow Environmental 
Protection Agency to trump States' rights and wipe out the authority of 
State and local governments to make local land and water use decisions. 
This is particularly troubling when we have seen no evidence that the 
States are misusing or otherwise failing to meet their 
responsibilities.
  The uncertainty this rule creates only delays economic investment and 
job creation. It defies logic to think this proposed rule will benefit 
anybody but bureaucrats in Washington who are far removed from the 
communities between the coasts.
  Mr. President, I urge my colleagues to stand with ranchers like 
Dennis Sun. Stand with those who understand the land best and not with 
extremists outside and within this administration who do not know how 
to run a farm, a ranch, or a small business.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

          [From the Wyoming Livestock Roundup, June 21, 2014]

                          Muddying the Waters

                            (By Dennis Sun)

       As we all realized on April 21, the Environmental 
     Protection Agency (EPA) and the U.S. Army Corps of Engineers 
     posted their proposed definition for ``waters of the U.S.'' 
     protected under the Clean Water Act (CWA) in the Federal 
     Register, and that triggered a 90-day public comment period.
       EPA Administrator Gina McCarthy said during a Senate 
     Appropriations Subcommittee hearing that current exemptions 
     for the CWA permitting for normal farming, ranching and 
     agricultural practices are kept intact in the proposal.
       She added, ``If a farmer was not legally required to have a 
     permit before, this rule does not change that status. The 
     proposal does not add or expand the scope of waters protected 
     under the CWA.''
       Well, after those words, the fight was on by those in the 
     farming and ranching industry, along with local governments 
     and the nation's business community. According to the EPA, 
     the proposed definition of waters of the U.S. would increase 
     predictability and consistency for CWA programs, and as a lot 
     of folks see it--that's right--we know we would go out of 
     business instead of just ``maybe.''
       At the same time, 231 U.S. Representatives sent a letter to 
     the EPA and Corp of Engineers asking them to back off this 
     proposed rule to expand federal control under the CWA. They 
     said the proposed rule would redefine waters of the U.S. 
     under the CWA based on a narrow opinion by Justice Anthony 
     Kennedy in a 2006 Supreme Court decision that said an 
     isolated water, like a stock pond or a ditch, doesn't have to 
     have a surface water connection to a downstream navigable 
     water to be considered a ``waters of the United States.''
       Justice Antonin Scalia wrote the plurality opinion on the 
     case, and his opinion differed from Kennedy's by saying that 
     waters of the U.S. include only those relatively permanent, 
     standing or continuously flowing bodies of water like 
     streams, rivers and lakes. Justice Scalia specifically noted 
     that waters of the U.S. do not include channels that only 
     hold water periodically and are only wetlands with a 
     continuous surface connection to bodies of water that are 
     waters of the U.S.
       The EPA and Corps chose to base the final rule on the 
     Kennedy opinion. That was a concern that the Congressmen 
     raised in their letter, which read, ``Contrary to your 
     agencies' claims this would directly contract prior U.S. 
     Supreme Court decisions which imposed limits on the extent of 
     federal CWA authority. Based on legally and scientifically 
     unsound view of the significant nexus concept espoused by 
     Justice Kennedy, the rule would place features such as 
     ditches, ephemeral drainages, ponds, natural and manmade, 
     seeps, prairie potholes, flood plains and other occasionally 
     or seasonally wet areas under federal control.''
       There lies the fight. Congressman Chris Collins (R-N.Y.) 
     said, ``Enough is enough with regard to federal overreach on 
     U.S. farms and ranches. When the bureaucrats at the EPA 
     decide to call a divot in the ground that fills with rain a 
     navigable waterway under the CWA, we know that our federal 
     government has run amuck.''
       Well, our government has run amuck, and we shouldn't like 
     it--that is all the reason to get your comments in before the 
     Oct. 20 deadline. This deadline extension gives us a valuable 
     opportunity so take advantage of it. If you're wondering just 
     how to submit your comments, read more in this week's 
     Roundup.

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