[Congressional Record Volume 161, Number 6 (Tuesday, January 13, 2015)]
[Senate]
[Pages S197-S198]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               PROPOSED WATERS OF THE UNITED STATES RULE

  Mr. GRASSLEY. Mr. President, I rise to speak about the issue of EPA 
regulation of waters of the United States rule. I see it as one of the 
biggest power grabs by an agency in a long time--particularly the EPA.
  Before I speak on that issue, I wish to bring attention to some 
headlines that appeared both in Iowa and nationally on this issue. I 
will quote the Wall Street Journal: ``Watch Out For That Puddle, Soon 
It Could Be Federally Regulated.''
  The next quote is from an Iowa Farm Bureau spokesman: ``Water rule is 
really about control of land.''
  The next quote is from a Farm Bureau spokesman: ``Water rule intrudes 
on property rights, hurts conservation.''
  Farm Bureau spokesman said: ``EPA proposal would regulate all water 
wherever it flows.''
  Farm Bureau spokesman: ``Water rule threatens U.S. agriculture.''
  The last quote is also from the a Farm Bureau spokesman: ``Rule is 
threat to conservation momentum . . . a flood of red tape.''
  Last spring the EPA and Army Corps of Engineers published a proposed 
rule to define ``waters of the United States.'' This is part of a long 
history of attempts to determine the scope of the Federal Government's 
jurisdiction under the Clean Water Act. The latest proposal has 
generated no shortage of rhetoric from those concerned about the rule 
as well as those defending the rule. However, you would be hard pressed 
to call it a true debate.
  Rather than making a serious attempt to address the numerous 
legitimate concerns with the rule, the Environmental Protection Agency 
and their allies in the professional advocacy community have attempted 
to push a narrative that tries to portray critics of the rule as 
misinformed, nutty or in favor of water pollution.
  They, the advocacy community, claim the rule simply clarifies the 
jurisdiction of Federal agencies, and they also claim it does not 
expand that jurisdiction in any way. The EPA also promises that it will 
not interfere with the farmer's routine use of their own land.
  Given its history of ignorance and indifference toward the needs of 
rural America, it is no wonder EPA's assurances are met with skepticism 
by many in America, but it is particularly met with skepticism by 
America's farmers.
  The EPA will have another chance to consider the concerns of farmers 
and many other Americans as it reviews the formal comments it collected 
before issuing the final rule. Still, given the fact that EPA 
officials--starting with Administrator McCarthy--went out of their way 
to be dismissive of legitimate criticisms even while the comment period 
was still open, I am not going to hold my breath hoping for a change of 
heart on the part of the EPA.
  First, it is important to understand that this debate is not about 
whether we should have clean water protections but which level of 
government is in the best position under our laws, and the intent of 
those laws, to manage which bodies of water.
  Despite what some interest groups would have you believe, no one is 
arguing that farmers or anybody else should be allowed to dump 
pollutants in the waterway. There is also no question that there is a 
very important role for the Federal Clean Water Act to protect 
interstate bodies of water.
  However, the Clean Water Act itself clearly states:

       It is the policy of Congress to recognize, preserve, and 
     protect the primary responsibilities and rights of States to 
     prevent, reduce, and eliminate pollution, to plan the 
     development and use (including restoration, preservation, and 
     enhancement) of land and water resources, and to consult with 
     the Administrator in the exercise of his authority under this 
     chapter.

  That is in the law right now, and it has been there a long time. The 
complicated Federal clean water permitting process is appropriate if a 
factory is looking to discharge waste into a river, but does it make 
sense to require a farmer to apply for a Federal permit to build a 
fence on his own land?
  There is clearly a limit to where Federal regulation is appropriate, 
where Federal regulation is effective, and where Federal regulation is 
legal. In fact, expanding the cumbersome Federal permitting process to 
cover lands it was not designed for would actually be counterproductive 
in my State of Iowa and probably a lot of other States as well.
  Forcing farmers to file for a Federal permit would add significant 
redtape for Iowa farmers as they make routine decisions about how best 
to use their land. Ironically, that could delay or deter farmers from 
undertaking projects to improve water quality, and that is why I quoted 
some members of the Farm Bureau earlier.

  There was one story that very specifically said farmers in Iowa were 
willing to spend a lot of their own money to do some conservation 
practices that everybody would be very happy with, but they are not 
going to spend their own money because they cannot even get an answer 
from the Corps and the EPA on whether they even need a permit. They are 
not going to pursue their conservation practices and invest all of 
their money if they could be violating a law, so you can see why they 
are very upset. Under the existing law, the EPA cannot even tell a 
farmer whether they need a permit, and they want to assume a lot more 
responsibility. It is kind of concerning considering that they cannot 
do their job right now.
  Having to constantly apply for Federal permits just to farm their 
land would be unnecessarily burdensome to farmers, a waste of Federal 
resources, and an intrusion on State and local land use regulations. 
What about the EPA's assertion that its proposed rule simply clarifies 
its existing jurisdiction and restores it to what it used to be? The 
fact is that in the past, the EPA has attempted to claim nearly 
unlimited jurisdiction well beyond what the law says and well beyond 
even an expansive reading of the Federal Government's constitutional 
authority to regulate interstate commerce. However, those attempts were 
repeatedly struck down by our U.S. Supreme Court.
  The Court decisions in 2001 and 2006 made very clear that the Federal 
Government does not have unlimited authority over all bodies of water 
but left the precise division between State and Federal or local 
jurisdictions somewhat unclear.
  In response, the U.S. Army Corps of Engineers and the EPA issued 
guidance in December 2008 in an attempt to comply with the Supreme 
Court's rulings but did not engage in any formal rulemaking. 
Significantly, legislation was routinely proposed in Congress by those 
who wanted to push aside the Supreme Court rulings and give the EPA 
unlimited jurisdiction, but it never garnered enough support.
  While legislation would not have resolved the constitutional 
limitations to the EPA's authority, it is important to know Congress 
passed on several opportunities to amend the Clean Water Act to expand 
Federal jurisdiction.

[[Page S198]]

Nevertheless, in April 2011, the Obama administration proposed to 
replace the existing guidance with revised guidance that provided a 
very expansive reading of Federal authority, leaving very little land 
under State and local control.
  This unilateral reassertion of expansive authority--in defiance of 
the other two branches of government--was made even more egregious by 
being proposed through guidance outside of the formal rulemaking 
process. Fortunately, the outcry from the Republican Congress against 
this power grab caused the administration to scrap guidance and pursue 
a formal rule with public comment.
  I do believe we need clarity about what is and is not covered by the 
Clean Water Act, and particularly its permitting process, and that a 
formal rule with public comments is the best route.
  However, the proposed rule that was formally published in April of 
2014 once again asserted an extremely expansive view of Federal 
authority. This would increase the Federal Government's jurisdiction to 
regulate waters that had previously been the sole jurisdiction of 
States and local governments. Moreover, rather than clarifying points 
of uncertainty remaining from original guidance, court decisions, and 
precedents, the proposed rule would create a whole new definition of 
waters of the United States that opens new areas of uncertainty and 
confusion.
  Rather than fixing the problem, this rule would make it much worse. 
It would lead to another round of court cases and overwhelm the Federal 
agencies with requests for jurisdictional determinations, diverting 
scarce Federal resources away from enforcement in more critical areas.
  The EPA and the Corps should withdraw the proposed rule and work 
collaboratively with the States and other stakeholders to craft a 
sensible rule that will ensure clean water and provide much needed 
clarity about the scope of the Federal Clean Water Act jurisdiction.

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