[Congressional Record Volume 161, Number 163 (Tuesday, November 3, 2015)]
[Senate]
[Pages S7679-S7695]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FEDERAL WATER QUALITY PROTECTION ACT--MOTION TO PROCEED
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will resume consideration of the motion to proceed to S. 1140,
which the clerk will report.
The legislative clerk read as follows:
Motion to proceed to Calendar No. 153, S. 1140, a bill to
require the Secretary of the Army and the Administrator of
the Environmental Protection Agency to propose a regulation
revising the definition of the term ``waters of the United
States,'' and for other purposes.
The PRESIDENT pro tempore. Under the previous order, the time until
12:30 p.m. will be equally divided between the two leaders or their
designees.
The Senator from Vermont.
Mr. LEAHY. Mr. President, I ask unanimous consent to speak as in
morning business.
The PRESIDENT pro tempore. Without objection, it is so ordered.
Tribute to Senator Charles Grassley's 12,000th Vote
Mr. LEAHY. Mr. President, I have had the privilege of serving with
several hundred Senators in this body over the years I have been here,
and Senator Grassley has been a very special friend during that time.
He has represented the voices of Iowans for nearly three and a half
decades. I think we have been friends for that three and a half
decades.
When I think of Senator Grassley--12,000 votes, hundreds of hearings,
countless tweets, and probably four dozen sweater vests later--he is
the same down to earth Iowa farmer who visits every one of the State's
99 counties every year. He is also the Iowa farmer who, when Vermont
was hit with terrible flooding a few years back, was the first person
to contact me to say, ``Vermont stood with Iowa when we were hit with a
natural disaster. Iowa now stands with Vermont.''
He and I have worked together, and we have had a productive
relationship that spans those decades. On the Judiciary Committee, we
take our leadership responsibilities seriously. We have both made sure
that, both as chairman and ranking members, that every Senator has a
chance to be heard. We have found ways to come together on meaningful
legislation. We enjoy each other's company. We are able to kid each
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other, as I did on his recent birthday. But more importantly, we do
what I was told to do when I first came to the Senate, and I am sure
what Senator Grassley was told when he did--we keep our word. We have
always kept our word to each other.
It also helps that we both married above ourselves. His wonderful
wife, Barbara, and my wife, Marcelle, are very close friends. They
sometimes say that they belong to that special club that nobody wants
to join, that of cancer survivors.
Senator Grassley's willingness to listen and hard work was most
recently on display in the Judiciary Committee, as we hammered out an
important compromise on sentencing reform which brought the left and
the right together--both parties together. I think every single Senator
complimented his leadership.
And I must admit I was grateful for Senator Grassley's comments last
week when I, too, crossed a voting milestone. He said we have been good
friends and hoped we could cast many more votes together. I share that
hope and congratulate my friend on this achievement.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Iowa.
Mrs. ERNST. Mr. President, I rise today to congratulate my friend,
colleague, and Iowa's outstanding senior Senator on casting his
12,000th vote in the wee early hours of this last Friday morning. In
fact, there are only 17 other Senators in history who have cast more
votes than Senator Chuck Grassley. On top of that, he has the longest
existing voting streak in Congress.
This farmer from Iowa serves as the chairman of the Senate Judiciary
Committee and is one of the highest ranking members in the Senate. But
that has not gone to his head--not for Chuck Grassley. Back home in
Iowa, he travels all 99 counties every single year, and he has done
this every year for 35 wonderful years. Today his travels across the
State to all 99 counties have a name. It is called ``the full
Grassley.'' It is something that now our elected officials and even the
Presidential candidates who visit Iowa try to complete as well. Senator
Grassley has set a high bar, and I am very glad that he has.
Over the years I have learned quite a bit about my friend Senator
Chuck Grassley. He is extremely thrifty. Because of that, he is always
looking out for our taxpayer dollars. He fights tirelessly for
accountability and transparency in Washington. I can always count on
Senator Grassley to stop by my office for doughnuts and coffee and to
meet all of our wonderful Iowa constituents who happen to be visiting
Washington, DC. He says he comes to visit the constituents. I actually
think it is for the free doughnuts, but we are glad he stops by.
Senator Grassley is the epitome of the Iowa way, and he has
faithfully upheld these values in the Senate. He is a workhorse and has
dedicated his entire career to serving Iowans. Iowa has no greater
friend than Senator Chuck Grassley.
Congratulations, Senator, on your 12,000th vote. Congratulations to
Barbara, also. Get your Twitter ready because at noon we are going to
celebrate.
I thank the Acting President pro tempore.
The ACTING PRESIDENT pro tempore. The Senator from Iowa.
Mr. GRASSLEY. Mr. President, I thank all my colleagues, in particular
my colleague from Iowa but also the people who are very senior leaders
of this body: Senator McConnell, Senator Reid, and my friend on the
Judiciary Committee, Senator Leahy, whom I have served with for 35
years. I thank them for their kind words and for what they said about
my service to the people of Iowa as an elected representative.
I have interacted with tens of thousands of Iowans as their Senator,
so I have a feeling that I know each Iowan personally at this point. Of
course, I don't. I know that is technically impossible, but one of the
benefits of a State that is not especially big geographically is that I
have enough planning that I can get to every county every year, as has
been said several times by my colleagues.
Every year, Iowans in each county host me at a question-and-answer
session at their factories, schools, or their service clubs. Most of
these are my own town meetings that I set up. At each stop, I might get
a dozen or so questions on any topic under the Sun, and that is as it
should be in representative government because that is a two-way
street. The electorate's job is to ask the questions and my job is to
answer them. If people are satisfied that I have answered their
questions or that at least I have tried to answer them, then I hope I
have demonstrated how much their participation means to the process of
representative government and to casting my votes in Washington because
I bring the benefits of every comment, question, and criticism heard
from Iowans to that vote.
With these 12,000 votes, I think of the many conversations and pieces
of correspondence behind each vote. Whether I am meeting with Iowans in
the Hart Building in Washington or at the University of Northern Iowa
volleyball matches near my farm in New Hartford, the time that people
take to visit with me is well spent for me, and I hope they consider it
a time well spent for them.
People ask me if I have any hobbies. I cannot say that I do, at least
not in the way people usually think of hobbies. Spending time with the
people of Iowa is part of my work. I get paid to listen and make sure
that is what I do. It is my pleasure to spend time with Iowans. When
someone stops me at the Village Inn in Cedar Falls, where I go for
Sunday brunch after church, to talk about cyber security or sentencing
reform, I am glad to do it.
What is important to the people of Iowa is my vocation. I am grateful
for the opportunity to cast 12,000 votes. Thanks to the people of Iowa,
thanks to my wife Barbara and the rest of my family who share my regard
for what is important, representing the people of Iowa.
Mr. ALEXANDER. Mr. President, I thank the people of Iowa for sending
us Chuck Grassley and want to say he does not just represent Iowa, he
personifies it. I know of no Senator who better personifies his State
than the Senator from Iowa.
Mr. President, I ask unanimous consent that I be recognized to say a
few words about our departed colleague Fred Thompson and that following
my remarks Senator Corker be recognized.
The PRESIDING OFFICER. Without objection, it is so ordered.
Remembering Fred Thompson
Mr. ALEXANDER. Mr. President, it is my sad duty, as was mentioned by
our leaders this morning, to report that Fred Dalton Thompson, who
served in this body from 1995 to 2003, representing our State of
Tennessee, died in Nashville on Sunday. My wife, Honey, and I and the
members of our family--every one of whom valued our friendship with
Fred--as well as Members of the Senate, express to Fred's family--his
wife Jeri, their children, Hayden and Sammy, and his sons by his
earlier marriage to Sarah, Tony and Dan, and his brother Ken--our pride
in Fred's life and our sympathy for his death.
Very few people can light up the room the way Fred Thompson did. The
truth is, most public figures have always been a little jealous of Fred
Thompson. His personality had a streak of magic that none of the rest
of us have. That magic was on display when he was minority counsel to
the Senate Watergate Committee in 1973, asking former White House aide
Alexander Butterfield the famous question: ``Mr. Butterfield, are you
aware of the installation of any listening devices in the Oval Office
of the President?'' thereby publicly revealing the existence of tape-
recorded conversations within the White House. National Public Radio
later called that session and the discovery of the Watergate tapes ``a
turning point in the investigation.''
The Thompson magic was evident again in 1985, when Fred was asked to
play himself in the movie ``Marie.'' In real life, Fred had been the
attorney for Marie Ragghianti, the truth-telling chairman of the
Tennessee Pardon and Parole Board during a scandal in our State when
pardons were sold for cash.
After that, Fred was cast in a number of movie roles as CIA Director,
the head of Dulles Airport, an admiral, the President of NASCAR, three
Presidents of the United States, and District Attorney Arthur Branch in
the television
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series ``Law and Order''. That same magic served him well when he ran
for the United States Senate in 1994 for the last 2 years of Vice
President Gore's unexpired term. It was a good Republican year and
Fred's red pickup truck attracted attention, but he defeated a strong
opponent by more than 20 percentage points, mostly because when he
appeared on television, Tennesseans liked him, trusted him, and voted
for him. Fred took on some big assignments during his time in the
Senate, but sometimes he would become impatient with some of the
foolishness around here. A Washington reporter once asked him if he
missed making movies: ``Yes,'' he said, ``Sometimes I miss the
sincerity of Hollywood.''
People ask me sometimes: How could an actor accomplish so much? In
addition to those things I have already mentioned, during the 1980s
Fred was invited twice to be special counsel to Senate investigative
committees. When he retired from the Senate, he took over Paul Harvey's
radio show. In 2008, he was a frontrunner for the Presidency of the
United States. For the last several years, it has been hard to turn on
the television without seeing Fred Thompson urging you to buy a reverse
mortgage.
I believe there are three reasons his career was so extraordinary and
so diverse. First, he was authentic, genuine, and bona fide. So far as
I know, he never had an acting lesson. As he did in ``Marie'' and as he
did in most of his movie roles, he played himself. There was no
pretense in Fred Thompson on or off the stage. Second, he was
purposeful. In 1992, when I was Education Secretary, I invited Fred to
lunch in the White House lunchroom. For years I had urged him to be a
candidate for public office. I hoped he might run in 1994. What struck
me during our entire luncheon conversation was that not once did he
raise any political concerns. His only question was: If I were to be
elected, what do you suppose I could accomplish?
When he was elected, he was serious and principled. He was a strict
Federalist, never a fan of Washington telling Americans what to do,
even if he thought it was something Americans should be doing. He was
not afraid to cast votes that were unpopular with his constituents if
he was convinced he was right. The third reason for Fred Thompson's
success was he worked hard. Saying that will come as something of a
surprise to many.
He was notoriously easygoing. He grew up in modest circumstances in
Lawrenceburg, Tennessee. His father Fletch was a car salesman. He was a
double major in philosophy and political science at the University of
Memphis. He did well enough to earn scholarships to Tulane and
Vanderbilt law schools. To pay for school he worked at a bicycle plant,
a post office, and a motel.
Before he was Watergate counsel, he was assistant U.S. attorney. The
remainder of his busy life was filled with law practice, stage, and
radio shows, counsel to Senate investigating committees, more than 20
movies, television commercials, and 8 years as a Senator. I have
attended a number of memorial services for prominent figures. As a
result, I have added a rule to ``Lamar Alexander's Little Plaid Book.''
It is this: ``When invited to speak at a funeral, be sure to mention
the deceased as often as yourself.''
I mentioned this rule last year when I spoke at Howard Baker's
funeral because there came a point in my remarks when I could not
continue without mentioning my relationship with Senator Baker, and I
therefore had to break my own rule. The same is true with Fred
Thompson. We were friends for nearly 50 years.
In the late 1960s, both of us fresh out of law school were inspired
by Senator Howard Baker to help build a two-party political system in
Tennessee. Fred's political debut was campaign manager for John
Williams for Congress, against Ray Blanton in 1968. My first political
foray was Howard Baker's successful Senate campaign in 1966.
When Senator Baker ran for reelection in 1972, I recruited Fred to be
the Senator's Middle Tennessee campaign manager. In 1973, Senator Baker
asked me to be minority counsel to the Watergate Committee. I suggested
he ask Fred instead because as a former U.S. attorney Fred was much
better equipped for the job. When I lost the Governor's race in 1974,
the Thompsons were one of two couples Honey and I invited to go to
Florida to lick our wounds.
When I was sworn in as Governor in 1979, even without asking him, I
announced that Fred Thompson would fly back to Nashville from
Washington, DC, to review more than 60 pardons and paroles that had
allegedly been issued because someone had paid cash for them. I wanted
the celebrated Watergate personality to help restore confidence in
Tennessee's system of justice. In the spring of 2002, Fred telephoned
to say he would not run for reelection. So I sought and won the Senate
seat both he and Howard Baker had held. I have the same phone number
today that both of them had when they were here.
During my general election campaign in 2002, an opponent said: ``Why,
Fred and Lamar are both in Howard Baker's stable.'' Fred replied:
``Stable hell, we are in the same stall.''
Several times I got a dose of Fred Thompson's magic during those
humbling experiences when I asked him to campaign with me. Campaigning
with Fred Thompson was a little like going to Dollywood with Dolly
Parton. You can be sure no one is there to see you.
We have a tradition of scratching our names in the drawers of the
desks that we occupy on the floor of the Senate. When I arrived in
2003, I searched high and low until I found what I wanted: a desk
occupied by two predecessors, my friend Fred Thompson and our mentor
Howard Baker. During one of those late-night Senate budget sessions a
few years ago, I scratched my name after theirs. I am proud it will
remain there as long as this desk does: Baker, Thompson, Alexander.
Tennesseans and our country have been fortunate that public service
attracted Fred Dalton Thompson. We will miss his common sense, his
conservative principles, and his big booming voice. We have lost one of
our most able and attractive public servants, and my wife Honey and I
have lost a dear friend.
The PRESIDING OFFICER. The Senator from Tennessee
Mr. CORKER. Mr. President, I rise to share my voice with Lamar
Alexander's at the loss of a great Tennessean and a great American. I
appreciate so much Senator Alexander's chronologically going through
much of the great Senator Thompson's life and talking about the
personal experiences. Elizabeth and I, too, want to share our
condolences with Jeri, Hayden, and Sammy, along with Tony and Dan, his
sons by his first marriage with Sarah, and his brother Ken.
I was able to talk to Tony last week as Fred was in hospice care. As
you would expect, with Fred being the kind of person he was, never
forgetting where he came from, they wanted to spend those last days
together in quiet and didn't want a lot of phone calls or a lot
happening to make people aware of what was happening. Fred had reached
his end. No doubt, again, Tennessee has lost a great son as has our
Nation.
Fred was one of those people, as Lamar just mentioned, who had
extraordinary talent. To me, what was so unique about him having that
extraordinary talent is he also had the gift of knowing when and how to
use it, from his extraordinary ability as a lawyer, as has been
chronicled, to his ability when faced with a case that became something
of national notoriety, to himself becoming an actor and playing a role
that in this case he was in real life, and then to serving in the
Senate in the way that he did.
I, too, had the extraordinary privilege to also know Fred, as I have
had in knowing someone like Lamar Alexander, who I think is one of the
great public servants of our State, and Howard Baker, who has been a
mentor to all of us and had such an impact on me, Lamar, and Fred. Back
in 1994, as I was telling some Tennesseans earlier today, I was also
running for the Senate in a race that no one remembers because of the
results. As Lamar mentioned, everywhere you went, people wanted to see
Fred.
Fred had this extraordinary ability to capture people's imaginations.
Fred was unabashedly proud of our Nation and never an apologist for
what our Nation has done around the world to make the world a better
place. I was
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able to drive around and see hordes of people gather around Fred.
People would pat Bill Frist, me, and the other folks running in the
other primary on the head and say: Someday you, too, might be a
Senator.
Fred was somewhat criticized that year because of the way he was
going about the race. Again, it reminds me of how much talent he had
and his ability to know how to use it. He told people: Look, the first
time I run a television ad, this race will be over.
He did, and it was. As Lamar mentioned, he went on to win by 20
points because of the way the people felt about him, not only around
our State but around our country.
Fred was very impatient with serving in the Senate, and I had
multiple conversations with him about that. Actually, serving here, one
can understand with someone like Fred, who constantly wanted to make
something happen, how that was a frustration. But I know for a fact
from watching his early days--coming in, heading the homeland security
committee, and doing the many things he did--that he affected our State
and country in a very positive way, which is something all of us would
hope to emulate.
We will miss him. He was a rare talent. He was one of those people
who made you want to do better when you were around him.
I thank him for his tremendous service to our country, I thank him
for the tremendous and deep friendships he created all around our
State, and I thank him for causing all of us to constantly remember
where we came from.
With that, I join Senator Alexander in again expressing our deep
condolences to his family and all who were around him, especially when
the end came.
With that, I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from California.
Mrs. BOXER. Mr. President, first, I ask unanimous consent that
Senator Cardin manage our side.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mrs. BOXER. Mr. President, I am going to make a statement about S.
1140, which is before us.
Senator Barrasso, may I make my statement, due to a hectic schedule?
I won't go very long. Is that all right with you.
Thank you, my friend.
I thank Senator Barrasso.
It is kind of commonplace here that it is another day and another
attack on the environment. Today is no exception. Today it is an attack
on the Clean Water Act. That is what I believe S. 1140 does.
The name of this bill is the Federal Water Quality Protection Act. I
tell you, if we could sue for false advertising, we would have a great
case because this bill doesn't protect anything. It allows for
pollution of many bodies of water that provide drinking water to 117
million Americans, 1 in 3 Americans. Their drinking water will be at
risk if my friend's bill passes. That is why I feel so strongly about
it.
We see it on this poster: 117 million Americans are served by public
drinking water systems. That is 94 percent of public drinking water
systems that rely on these headwater streams. It affects 1 in 3
Americans in 48 States.
We are talking about a bill that is called the Federal Water Quality
Protection Act, but it is about pollution, not protection. In a way,
when we name these bills the opposite of what they are--remember, this
is called the Federal Water Quality Protection Act when in fact it is
going to lead to contamination of waterways. It reminds me of the book
``1984'' in which the government is making sure people believe
different things, and they have slogans like ``war is peace,'' and you
think about it, and finally you cannot tell the difference between war
and peace.
Pollution is not protection, and this bill will lead to pollution
because S. 1140 blocks the final clean water rule that clearly protects
these waters while exempting ditches and storm water collection and
treatment systems, artificial ponds, water-filled depressions, puddles,
and recycled water facilities.
What you will hear from the other side is, oh, the Obama
administration has written a rule that is protecting puddles. That is
nonsense. The fact is, the clean water rule is going to bring certainty
to the Clean Water Act, and it is going to protect the drinking water
of 117 million Americans. Yet my Republican friends want to stop it.
The exemptions that are in there would be gone, not only the exemption
from ditches, storm water collection, artificial ponds, water-filled
depressions, and recycled water facilities, but also the exemptions for
agriculture and forestry. So we are going to have a situation where
there is more chaos surrounding our water laws. It is going to lead to
confusion for businesses and landowners, and it is going to take us
back to square one to figure out a whole other rule. Following two
Supreme Court decisions, we shouldn't pass legislation that would
create even more uncertainty and invite years of new litigation.
The other thing you hear from the other side is, oh, this clean water
rule the Obama administration wrote--they didn't listen to the public.
Well, more than 1 million comments were received during a comment
period that lasted over 200 days, and over 400 outreach meetings with
stakeholders and State and local governments were conducted. So this
bill--by sending us back to square one--ignores this robust outreach,
and it will wind up wasting millions of taxpayer dollars, forcing EPA
to go right back to square one. How many more comments do these friends
of mine on the other side of the aisle want? My God, there were 400
outreach meetings over 200 days and more than 1 million comments. It
makes no sense to me.
Nothing is more important than protecting the lives of the American
people, and when we weaken the Clean Water Act, that is what we do.
I will show a photograph. This was the Cuyahoga River in Cleveland,
OH, decades ago. It caught on fire. It caught on fire because there was
no regulation and there were all kinds of toxic substances on the
waterway. Our lakes were dying. And this one--when the people saw it on
fire, they said enough is enough. They demanded the Clean Water Act. We
passed it--I wasn't here then; it was 1972--by an overwhelmingly
bipartisan majority. We have made tremendous progress. Today our
rivers, lakes, and streams are far cleaner than they were, and the
Clean Water Act has been one of our most successful laws.
Let's look at the support for the Clean Water Act. This is
unbelievable, when you see this. This is overwhelming public support
for the clean water rule that my friends on the other side of the
aisle, the Republicans, want to stop in its tracks.
Seventy-nine percent of voters think Congress should allow the clean
water rule to move forward, and 80 percent of small business owners
support protections for upstream headwaters in the EPA's new clean
water rule. So somebody has to explain to me--and I am sure my friends
will try to, and I look forward to hearing their reasoning--why they
are going against 79 percent of the voters and 80 percent of small
businesses. It makes no sense.
The bill takes us in the wrong direction. That is why over 80
scientists with expertise in the importance of streams and wetlands, as
well as the Society for Freshwater Science, oppose this bill. I have
received opposition letters from so many groups, I am going to read
them to you. And think about these groups. These are objective groups.
These are nonpartisan groups.
Under public health, there is the American Public Health Association,
the Physicians for Social Responsibility, and the Trust for America's
Health.
Under scientists and legal experts, there are 82 scientists, 44 law
professors, and the American Fisheries Society.
Under business, there is the American Sustainable Business Council
representing 200,000 businesses that oppose this bill, and there are 35
U.S. breweries. That is kind of interesting. The breweries count on
clean water. They are very upset about the Barrasso bill. They oppose
it.
Under sportsmen, there is the American Fly Fishing Trade Association.
I thought my Republican friends support outdoor recreation. The
Backcountry Hunters and Anglers, the Illinois Council of Trout
Unlimited, the International Federation of Fly Fishers, the Izaak
Walton League of America, the
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Florida Wildlife Federation, the National Wildlife Federation, the
Theodore Roosevelt Conservation Partnership, and Trout Unlimited oppose
this bill.
Under environmental, there is the Alliance for the Great Lakes,
American Canoe Association, American Rivers, and the BlueGreen
Alliance.
Mr. President, I am not going to go on that much longer. I am just
going to finish reading this list because when I speak--OK, you know I
am a strong environmentalist. I am wearing my green today on purpose.
These groups are very concerned about the Barrasso bill, as are 79
percent of voters.
Here are the other groups that weighed in: BlueStream Communications,
California River Watch, and Central Ohio Watershed Council. They know
because they have algae blooms coming to their lakes. Continuing, there
is Clean Water Action, Clean Up the River Environment, Coastal
Environmental Rights Foundation, Defenders of Wildlife, Earthjustice,
Endangered Habitats League, Environment America, Evangelical
Environmental Network. Do you want to know why the Evangelical
Environmental Network is here? Because they believe that with this bill
we are harming God's creation. That is why they are involved.
Continuing, Greenpeace, Gulf Restoration Network, Kentucky Waterways
Alliance, Lake Champlain International, League of Conservation Voters,
Massachusetts River Alliance, National Parks Conservation Association,
Natural Resources Defense Council, Nature Coast Conservation, New
Jersey Audubon Society, Northwest Environmental Advocates, Ohio
Environmental Council, Ohio River Foundation, Prairie Rivers Network,
River Network, Roots & Shoots, University of Tampa, Sierra Club,
Southern Environmental Law Center, Surfrider Foundation.
Under rural development, there is the Center for Rural Affairs.
There are reasons all these groups--scientists and biologists--have
come together. They want to protect the waterways of the United States
of America. This bill will take us back to square one. This bill goes
against the most incredible group of opponents. This bill ignores the
will of the people. So I am very hopeful that we will have enough votes
to stop the special interests that want to keep dumping toxic material
and dangerous material into our waterways.
I know Senator Barrasso and Senator Inhofe would like time.
With that, I yield the floor.
Mr. President, I ask unanimous consent that when the first Republican
speaker is done, it goes back to a Democrat, then back to a Republican,
if that is OK with everybody.
The ACTING PRESIDENT pro tempore. Is there objection?
Without objection, it is so ordered.
The Senator from Oklahoma.
Mr. INHOFE. Mr. President, I wish to do three things quickly. One is
a request, one is an apology, and one is the truth. The privileges of
the floor request will appear in another section of the Record.
Secondly, I have an apology. I am very fortunate I have had the same
staff for 21 years in the Senate. They have never made a mistake. My
staff never made a mistake until last Friday. Last Friday I was
informed by my staff that we had two votes starting at 1 o'clock in the
morning--two votes, and yet there were three. So I am the guy who came
down, thinking I had already voted. So I apologize to the leader, I
apologize to the staff who was working, and more than anything else, I
apologize to the young people on the front row, our pages, who had to
stay up another 15 minutes at 4 o'clock in the morning because of me. I
apologize.
On the truth side, first, let me put in the Record--my good friend
from California was talking about all of the groups. I have five times
as many groups now on record, many of which are from the State of
California. I have a long list. I wish to make those 44 groups from
California a part of the Record. And then there are the 480 very
thoughtful groups nationally that are opposed to this rule.
I ask unanimous consent to have printed in the Record the two lists
of supporters.
There being no objection, the material was ordered to be printed in
the Record, as follows:
California Entities Supporting S. 1140
California Cattlemen's Association; California Chamber of
Commerce; California Cotton Ginners Association; California
Farm Bureau; Camarillo Chamber of Commerce; Central
California Golf Course Superintendents Association; Chambers
of Commerce Alliance of Ventura & Santa Barbara Counties;
Corona Chamber of Commerce; County of San Joaquin,
California; Elk Grove Chamber of Commerce; Fresno Chamber of
Commerce; Fullerton Chamber of Commerce; Goleta Valley
Chamber of Commerce.
Golf Course Superintendents Association of Southern
California; Greater Bakersfield Chamber of Commerce; Greater
Conejo Valley Chamber of Commerce; Greater Grass Valley
Chamber of Commerce; Hi-Lo Desert Golf Course Superintendent
Association; Inland Empire Golf Course Superintendents
Association; Inland Empire Regional Chamber of Commerce; Long
Beach Area Chamber of Commerce; Los Angeles Area Chamber of
Commerce; Murrieta Chamber of Commerce; Oceanside Chamber of
Commerce; Orange County Business Council; Oxnard Chamber of
Commerce.
Rancho Cordova Chamber of Commerce; Redondo Beach Chamber
of Commerce; Roseville Chamber of Commerce; Rural County
Representatives of California; Sacramento Metropolitan
Chamber of Commerce; San Diego Regional Chamber of Commerce;
San Gabriel Valley Economic Partnership; San Joaquin Valley
Quality Cotton Growers Association; Santa Clara Chamber of
Commerce and Convention-Visitors Bureau; Santa Clarita Valley
Chamber of Commerce; Santa Maria Valley Chamber of Commerce;
South Bay Association of Chambers of Commerce; South Orange
County Economic Coalition; Torrance Area Chamber of Commerce;
Trinity Expanded Shale & Clay; Tuolumne County Chamber of
Commerce; Western Agricultural Processors Association;
Willows Chamber of Commerce.
Supporters of the Federal Water Quality Protection Act
U.S. Conference of Mayors; National Association of
Counties; National League of Cities; National Association of
Regional Councils; Patrick Morrisey, West Virginia Attorney
General; Doug Peterson, Nebraska Attorney General; Tim Fox,
Montana Attorney General; Wayne Stenehjem, North Dakota
Attorney General; Scott Pruitt, Oklahoma Attorney General;
Michael DeWine, Ohio Attorney General; Peter Michael, Wyoming
Attorney General; Alan Wilson, South Carolina Attorney
General; Luther Strange, Alabama Attorney General; Brad
Schimel, Wisconsin Attorney General; Mark Brnovich, Arizona
Attorney General; Terry Branstad, Iowa Governor; Leslie
Rutledge, Arkansas Attorney General; Phil Bryant, Mississippi
Governor; Agricultural Council of Arkansas; Agricultural
Retailers Association; Agri-Mark, Inc.; Alabama Cattlemen's
Association; Alabama Chapter of Golf Course Superintendents
Association; Alaska; Alaska State Chamber of Commerce;
Albany-Colonie Regional Chamber of Commerce; American Agri-
Women.
American Exploration & Mining Association; American Farm
Bureau Federation; American Forest & Paper Association;
American Gas Association; American Horse Council; American
Petroleum Institute; American Public Power Association;
American Public Works Association; American Road &
Transportation Builders Association; American Society of Golf
Course Architects; American Soybean Association; American
Sugar Alliance; AmericanHort; Ames Chamber of Commerce;
Annapolis and Anne Arundel County Chamber of Commerce; Arctic
Slope Regional Corporation; Area Development Partnership--
Greater Hattiesburg; Arizona Cattle Feeders' Association;
Arizona Cattle Growers' Association; Arizona Chamber of
Commerce and Industry; Arizona Farm Bureau Federation;
Arizona Mining Association; Arizona Rock Products
Association; Arkansas Cattlemen's Association; Arkansas Pork
Producers Association; Arkansas State Chamber of Commerce;
Associated Builders & Contractors Associated Builders &
Contractors Delaware Chapter.
Associated Builders & Contractors Empire State Chapter;
Associated Builders & Contractors Florida East Coast Chapter;
Associated Builders & Contractors Heart of America Chapter;
Associated Builders & Contractors Illinois Chapter;
Associated Builders & Contractors Mississippi Chapter;
Associated Builders & Contractors New Orleans/Bayou Chapter;
Associated Builders & Contractors Pelican Chapter; Associated
Builders & Contractors Rocky Mountain Chapter; Associated
Builders & Contractors Western Michigan Chapter; Associated
Builders and Contractors; Associated Industries of Arkansas,
Inc.; Association of American Railroads; Association of
American Railroads; Association of Equipment Manufacturers
(AEM); Association of Oil Pipe Lines; Association of Texas
Soil and Water; Baltimore Washington Corridor Chamber;
Billings Chamber of Commerce; Birmingham Business Alliance;
Bismarck-Mandan Chamber of Commerce; Buckeye Valley Chamber
of Commerce; Buffalo Niagara Partnership; Bullhead Area
Chamber of Commerce; Business Council of Alabama; Cactus &
Pine Golf Course Superintendents Association; California
Cattlemen's Association; California Chamber of Commerce.
California Cotton Ginners Association; California Farm
Bureau; Calusa Golf Course Superintendents Association;
Camarillo Chamber of Commerce; Carson Valley Chamber of
Commerce; Central California Golf
[[Page S7684]]
Course Superintendents Association; Central Delaware Chamber
of Commerce; Central Florida Golf Course Superintendents
Association; Central New York Golf Course Superintendents
Association; Chamber of Reno, Sparks, and Northern Nevada;
Chamber Southwest Louisiana; Chambers of Commerce Alliance of
Ventura & Santa Barbara Counties; Chicago Southland Chamber
of Commerce; Cincinnati USA Regional Chamber; City of Central
Chamber of Commerce; Cleveland-Bolivar County Chamber of
Commerce; Club Managers Association of America; Coeur d'Alene
Chamber of Commerce; Colorado Association of Commerce &
Industry; Colorado Cattlemen's Association; Colorado
Competitive Council; Colorado Livestock Association; Colorado
Nursery and Greenhouse Association; Colorado Pork Producers
Council.
Columbia County Chamber of Commerce; Connecticut
Association of Golf Superintendents; Conservation Districts;
Corn Refiners Association; Corona Chamber of Commerce; County
of San Joaquin, California; CropLife America; Crowley Chamber
of Commerce; Dairy Producers of New Mexico; Dairy Producers
of Utah; Dakota County Regional Chamber of Commerce; Darke
County Chamber of Commerce; Dauphin Island Chamber of
Commerce; Delaware State Chamber of Commerce; Delta Council;
Denver Metro Chamber of Commerce; Development Association;
Distribution Contractors Association; Dubuque Area Chamber of
Commerce; Durango Chamber of Commerce; Earthmoving
Contractors Association of Texas; Economic Progress (FEEP);
Edison Electric Institute; Elk Grove Chamber of Commerce;
Energy Piping Systems Division; Everglades Golf Course
Superintendents Association; Exotic Wildlife Association.
Fall River Area Chamber of Commerce & Industry; Federal
Forest Resources Coalition; Florida Cattlemen's Association;
Florida Chamber of Commerce; Florida Golf Course
Superintendents Association; Florida Sugar Cane League;
Florida West Coast Golf Course Superintendents Association;
Fort Collins Area Chamber of Commerce; Foundation for
Environmental and; Fred Weber, Inc.; Fresno Chamber of
Commerce; Fullerton Chamber of Commerce; Georgia Agribusiness
Council; Georgia Cattlemen's Association; Georgia Chamber of
Commerce; Georgia Cotton Commission; Georgia Golf Course
Superintendents Association; Georgia Green Industry
Association; Georgia Pork Producers Association; Glendale
Chamber of Commerce; Goleta Valley Chamber of Commerce; Golf
Course Builders Association of America; Golf Course
Superintendents Association of America.
Golf Course Superintendents Association of Cape Cod; Golf
Course Superintendents Association of New Jersey; Golf Course
Superintendents Association of Southern California; Grand
Junction Area Chamber of Commerce; Grand Rapids Area Chamber
of Commerce; Grant County Chamber of Commerce & Tourism;
Greater Bakersfield Chamber of Commerce; Greater Casa Grande
Chamber of Commerce; Greater Cedar Valley Alliance & Chamber;
Greater Conejo Valley Chamber of Commerce; Greater Elkhart
Chamber of Commerce; Greater Fairbanks Chamber of Commerce;
Greater Flagstaff Chamber of Commerce; Greater Grass Valley
Chamber of Commerce; Greater Hall Chamber of Commerce;
Greater Hernando County Chamber of Commerce; Greater Hyde
County Chamber of Commerce; Greater Louisville Inc.; Greater
North Dakota Chamber of Commerce; Greater Oak Brook Chamber
of Commerce and Economic Development Partnership; Greater
Oklahoma City Chamber.
Greater Omaha Chamber of Commerce; Greater Phoenix Chamber
of Commerce; Greater Raleigh Chamber of Commerce; Greater
Rome Chamber of Commerce; Green Valley Sahuarita Chamber of
Commerce & Visitor Center; GROWMARK, Inc. Gulf County Chamber
of Commerce; Hastings Area Chamber of Commerce; Hawaii
Cattlemen's Council; Heart of America Golf Course
Superintendents Association; Hi-Lo Desert Golf Course
Superintendent Association; Holmes County Development
Commission; Horseshoe Bend Area Chamber of Commerce; Houma-
Terrebonne Chamber of Commerce; Idaho Association of Commerce
& Industry; Idaho Cattle Association; Idaho Dairymen's
Association; Idaho Golf Course Superintendents Association;
Illinois Association of Aggregate Producers; Illinois Beef
Association; Illinois Chamber of Commerce; Illinois Pork
Producers Association; Independent Cattlemen's Association of
Texas; Indiana Beef Cattle Association.
Indiana Chamber of Commerce; Indiana Pork Producers
Association; Indianapolis Chamber of Commerce; Industrial
Minerals Association--North America; Inland Empire Golf
Course Superintendents Association; Inland Empire Regional
Chamber of Commerce; International Council of Shopping
Centers; International Council of Shopping Centers (ICSC);
International Liquid Terminals Association (ILTA); Interstate
Natural Gas Association of America (INGAA); Iowa Association
of Business and Industry; Iowa Cattlemen's Association; Iowa
Cattlemen's Association; Iowa Chamber Alliance; Iowa Golf
Course Superintendent Association; Iowa Pork Producers
Association; Iowa Seed Association; Irrigation Association;
JAX Chamber; Jeff Davis Chamber of Commerce; Juneau Chamber
of Commerce; Kalispell Chamber of Commerce; Kansas
Agribusiness Retailers Association; Kansas Agribusiness
Retailers Association; Kansas Chamber of Commerce.
Kansas Farm Bureau; Kansas Grain and Feed Association;
Kansas Livestock Association; Kansas Livestock Association;
Kansas Pork Association; Kentucky Cattlemen's Association;
Kentucky Chamber of Commerce; Kentucky Pork Producers
Association; Lafourche Chamber of Commerce; Lake Havasu Area
Chamber of Commerce; Leading Builders of America; Lima/Allen
County Chamber of Commerce; Lincoln Chamber of Commerce;
Litchfield Area Chamber of Commerce; Long Beach Area Chamber
of Commerce; Los Angeles Area Chamber of Commerce; Louisiana
Association of Business and Industry; Louisiana Cattlemen's
Association; Louisiana/Mississippi; Louisiana/Mississippi
Golf Course Superintendents Association; Maine Arborist
Association; Maine Landscape & Nursery Association; Marana
Chamber of Commerce; McLean County Chamber of Commerce.
Mesa Chamber of Commerce; Metro Atlanta Chamber of
Commerce; Metro Denver Economic Development Corporation;
Michigan Cattlemen's Association; Michigan Cattlemen's
Association; Michigan Chamber of Commerce; Michigan Golf
Course Superintendents Association; Michigan Pork Producers
Association; Mid-Atlantic Association of Golf Course
Superintendents; MIDJersey Chamber of Commerce; Milk
Producers Council; Minden-South Webster Chamber of Commerce;
Minnesota AgriGrowth Council; Minnesota Agri-Women; Minnesota
Crop Production Retailers; Minnesota Golf Course
Superintendents Association; Minnesota Pork Producers
Association; Minnesota State Cattlemen's Association;
Minnesota State Cattlemen's Association; Mississippi
Cattlemen's Association; Missouri Agribusiness Association;
Missouri Cattlemen's Association; Missouri Cattlemen's
Association; Missouri Cattlemen's Association.
Missouri Corn Growers Association; Missouri Dairy
Association; Missouri Pork Association; Missouri Soybean
Association; Mobile Area Chamber of Commerce; Molokai Chamber
of Commerce; Monroe County Chamber of Commerce; Montana
Chamber of Commerce; Montana Stockgrowers Association; Morris
County Chamber of Commerce; Moultrie-Colquitt County Chamber
of Commerce; Mulzer Crushed Stone, Inc.; Municipal and
Industrial Division; Murrieta Chamber of Commerce; NAIOP, the
Commercial Real Estate; Naperville Chamber of Commerce;
Natchitoches Area Chamber of Commerce; National All-Jersey;
National Association of Home Builders; National Association
of Manufacturers; National Association of
REALTORSR; National Association of State
Departments of Agriculture; National Association of Wheat
Growers; National Black Chamber of Commerce; National
Cattlemen's Beef Association.
National Chicken Council; National Club Association;
National Corn Growers Association; National Cotton Council;
National Council of Farmer Cooperatives; National Federation
of Independent Business; National Golf Course Owners
Association of America; National Industrial Sand Association;
National Mining Association; National Multifamily Housing
Council; National Oilseed Processors Association; National
Pork Producers Council; National Rural Electric Cooperative
Association; National Sorghum Producers; National Stone, Sand
and Gravel Association (NSSGA); National Turkey Federation;
National Water Resources Association; Nebraska Cattlemen;
Nebraska Cattlemen Association; Nebraska Chamber of Commerce
and Industry; Nebraska Golf Course Superintendents
Association; Nebraska Pork Producers Association, Inc; Nevada
Cattlemen's Association; New Hampshire Business and Industry
Association; New Jersey State Chamber of Commerce.
New Mexico Association of Commerce & Industry; New Mexico
Cattle Growers Association; New York Beef Producers'
Association; New York State Turfgrass Association; Norfolk
Area Chamber of Commerce; North Carolina Aggregates
Association; North Carolina Cattlemen's Association; North
Carolina Cattlemen's Association; North Carolina Chamber;
North Carolina Pork Council; North Country Chamber of
Commerce; North Dakota Stockmen's Association; North Dakota
Stockmen's Association; North Florida Golf Course
Superintendents Association; North Western Illinois Course
Superintendents Association; Northeast Dairy Farmers
Cooperatives; Northeastern Golf Course Superintendents
Association; Northern Colorado Legislative Alliance; Northern
Kentucky Chamber of Commerce; Northern Ohio Golf Course
Superintendents Association; Oceanside Chamber of Commerce;
Ohio Aggregates & Industrial Minerals Association; Ohio
AgriBusiness Association.
Ohio Cattlemen's Association; Ohio Cattlemen's Association;
Ohio Chamber of Commerce; Oklahoma Cattlemen's Association;
Oklahoma Farm Bureau; Oklahoma Pork Council; Olive Branch
Chamber of Commerce; Opelika Chamber of Commerce; Orange
County Business Council; Oregon Cattlemen's Association;
Oregon Dairy Farmer's Association; Orlando Regional Chamber
of Commerce; Ottawa Area Chamber of Commerce; Oxnard Chamber
of Commerce; Palm Beach Golf Course Superintendents
Association; Peaks & Prairies Golf Course Superintendents
Association; Pennsylvania Cattlemen's Association; Pike
County Chamber of Commerce; Plastic Pipe Institute;
Pocatello-Chubbuck Chamber of
[[Page S7685]]
Commerce Illinois; Portland Cement Association; Power and
Communications Contractors Association; Public Lands Council;
Quad Cities Chamber of Commerce.
Rancho Cordova Chamber of Commerce; Redondo Beach Chamber
of Commerce; Rehoboth Beach-Dewey Beach Chamber of Commerce
Florida; Responsible Industry for a Sound Environment (RISE);
Richland Chamber of Commerce; Ridge Golf Course
Superintendents Association; Riverside & Landowners
Protection Coalition; Roanoke Valley Chamber of Commerce;
Rochester Area Chamber of Commerce; Rochester Business
Alliance; Rocky Mountain Golf Course Superintendents
Association; Rogers-Lowell Area Chamber of Commerce;
Roseville Chamber of Commerce; Sacramento Metropolitan
Chamber of Commerce; San Diego Regional Chamber of Commerce;
San Gabriel Valley Economic Partnership; San Joaquin Valley
Quality Cotton Growers Association; Santa Clara Chamber of
Commerce and Convention-Visitors Bureau; Santa Clarita Valley
Chamber of Commerce; Santa Maria Valley Chamber of Commerce;
Savannah Area Chamber of Commerce; Scottsdale Area Chamber of
Commerce.
Select Milk Producers, Inc.; Shoals Chamber of Commerce;
Silver City Grant County Chamber of Commerce; South Baldwin
Chamber of Commerce; South Bay Association of Chambers of
Commerce; South Carolina Cattlemen's Association; South
Dakota Cattlemen's Association; South Dakota Pork Producers
Council; South East Dairy Farmers Association; South Florida
Golf Course Superintendents Association; South Orange County
Economic Coalition; South Texans' Property Rights
Association; South Texas Cotton & Grain Association;
Southeastern Lumber Manufacturers Association; Southern
Cotton Growers, Inc.; Southern Crop Production Association;
Southwest Council of Agribusiness; Southwest Indiana Chamber;
Sports Turf Managers Association; Springer Chamber of
Commerce; Springfield Area Chamber of Commerce; St. Albans
Cooperative Creamery Inc.; St. Johns County Chamber of
Commerce.
St. Joseph Chamber of Commerce; St. Joseph County Chamber
of Commerce; Sugar Cane Growers Cooperative of Florida;
Suncoast Golf Course Superintendents Association; Tempe
Chamber of Commerce; Tennessee Cattlemen's Association; Texas
& Southwestern Cattle Raisers Association; Texas Cattle
Feeders Association; Texas Cattle Feeders Association; Texas
Forestry Association; Texas Pork Producers Association; Texas
Pork Producers Association; Texas Poultry Federation; Texas
Seed Trade Association; Texas Sheep & Goat Raisers
Association; Texas Wheat Producers Association; Texas
Wildlife Association; Texas Wine and Grape Growers; The
Associated General Contractors of America; The Business
Council of New York State; The Fertilizer Institute; The
Independent Petroleum Association of America (IPAA); Thompson
Contractors, Inc.; Torrance Area Chamber of Commerce.
Treasure Coast Golf Course Superintendents Association;
Treated Wood Council; Trinity Expanded Shale & Clay; Tucson
Metro Chamber; Tuolumne County Chamber of Commerce; Tuscola
Stone Co.; U.S. Cattlemen's Association; U.S. Chamber of
Commerce; U.S. Poultry & Egg Association; United Egg
Producers; USA Rice Federation; Utah Cattlemen's Association;
Virginia Agribusiness Council; Virginia Cattlemen's
Association; Virginia Pork Council, Inc.; Virginia Poultry
Federation; Virginia State Dairymen's Association; Vocational
Agriculture Teachers Association; Wabash County Chamber of
Commerce; Washington Cattle Feeders Association; Washington
Cattlemen's Association; Washington State Dairy Federation;
Weldon Materials; West Virginia Cattlemen's Association;
Western Agricultural Processors Association; Western DuPage
Chamber of Commerce; Western Peanut Growers Association.
Western United Dairymen; White Pine Chamber of Commerce;
Wickenburg Chamber of Commerce; Willoughby Western Lake
County Chamber of Commerce; Willows Chamber of Commerce;
Wilmington Chamber of Commerce; Wisconsin Cattlemen's
Association; Wisconsin Pork Association; Wyoming Ag-Business
Association; Wyoming Crop Improvement Association; Wyoming
Stock Growers Association; Wyoming Wheat Growers Association;
Yuma County Chamber of Commerce.
Mr. INHOFE. Now, the waters of the United States rule is not just
another example of regulatory overreach. I chair the Committee on
Environment and Public Works. We have jurisdiction over the EPA, yet
they do not want to even come in and testify when requested, and that
is something I don't think has ever happened before.
This rule we are talking about now is illegal. It is not supported by
the science, it is not supported by the technical experience of the
Corps of Engineers, and it is a political power grab. Thirty-one
States--here is the chart--filed lawsuits against the WOTUS rule. If we
don't act to send this rule back, States, local governments, farmers,
and landowners could face years of abuse by the EPA until the courts
inevitably strike the rule down.
Believe me, it is inevitable that the rule will be overturned. I
think we know that. That is not just my opinion. This is the conclusion
of the two courts that have looked at this rule so far.
On August 27, Judge Erickson of the District of North Dakota issued
an injunction that prevented the WOTUS rule from going into effect in
13 States. Oklahoma, my State, was not one of the 13 States. According
to Judge Erickson--and this is her court--``the rule allows EPA
regulation of waters that do not bear any effect on the `chemical,
physical and biological integrity of any navigable-in-fact water.'''
As a result, Judge Erickson concluded this rule is ``likely arbitrary
and capricious.'' That means it violates the law. That is what the
judge said.
Now, on October 9, the Sixth Circuit Court of Appeals reached the
same conclusion and issued a nationwide stay on the WOTUS rule.
My committee has conducted a lot of oversight. I believe we have had
six hearings so far. We have memoranda from the Army Corps of Engineers
that document the fact that EPA is claiming the authority to assert
Federal control wherever they want no matter what the science says or
what the technical or legal experts of the Corps say. So what we have
is a rule that is not developed based on science or technical
expertise. Instead, it is based on a political goal to call everything
a water of the United States.
If we look at the chart that is set up right now, it is imperative we
have to act right away. This is what we have right now around the
country.
Let me make this comment. I am very much concerned about this. The
ones who want this the most are the farmers and the ranchers, and a lot
of other people too, but my State of Oklahoma is a farm State, and I
can remember not too long a guy named Tom Buchanan. He was the chairman
of the Oklahoma Farm Bureau. He said that, historically, it has not
been this way. But as it is right now, the major problem farmers and
ranchers have in my State of Oklahoma is not anything that is found in
the farm bill, it is the overregulation of the EPA. Of all of the
regulations of the EPA that are overregulating and putting farmers out
of business, the one that is the worst is the waters of the United
States rule.
Let me share this with you, Mr. President. Five years ago, the
liberals--those who want all the power in Washington--made an effort to
take the word innavigable out. Historically, this has always been in
the jurisdiction of the States, except for navigable waters. I
understand that, and everyone else does too. So Senator Feingold from
the Senate and Congressman Oberstar from the House got together and
introduced a bill to take the word navigable out and give all the power
to the Federal Government. Not only did we defeat their legislation,
but they were both defeated in the next election.
So this is a huge issue. It is one of regulation. It is one we need
to go ahead with, since the courts have decided what is going to happen
eventually. We need to go ahead and pass this legislation or we are
going to be working in a direction that is contrary to our court
system.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Maryland.
Mr. CARDIN. Mr. President, let me make it clear what this legislation
would do. It is true it would stop the final rule on the waters of the
United States that has been issued, but it would also change the
underlying criteria in the Clean Water Act. So it not only blocks the
rule from going forward, it weakens the Clean Water Act. So let me talk
a little about both.
The final rule on the waters of the United States that has been
issued restores clarity to the enforcement of the Clean Water Act. It
restores it to what was commonly understood before a series of Supreme
Court cases that really raised questions as to which water bodies, in
fact, can be regulated under the Clean Water Act. The worst possible
outcome is the lack of clarity because you don't know. You don't know
what the rules are.
The final rule that has been proposed, and that now is final, would
restore that clarity to what was generally understood to be waters of
the United States. To say it in laymen's terms, it is waters that lead
to, in effect, the water qualities of our streams and our waters and
our lakes in America. It affects public health. It affects
[[Page S7686]]
public health directly by the health of our waters of the United
States, as well as providing the source for safe drinking waters.
So what is at risk? If this final rule is blocked and does not become
law, over half of our Nation's stream miles are at risk of not being
regulated under the Clean Water Act. Twenty million acres of wetlands
are at risk of not being adequately regulated under the Clean Water
Act. The drinking source for water for one out of three Americans would
be at risk.
So this legislation would not only block the implementation of the
final rule, it would also weaken the Clean Water Act. It would
drastically narrow the historic scope of the Clean Water Act,
arbitrarily putting in nonscientific standards for how the rules would
be developed.
Mr. President, since the enactment of the Clean Water Act, every
Congress has tried to strengthen the Clean Water Act, not weaken it.
The Clean Water Act was a piece of bipartisan legislation passed in
1972. As Senator Boxer pointed out, it was in response to rivers
literally catching fire and dead zones being found in our lakes.
In the Chesapeake Bay we had the first marine dead zone that we were
trying to respond to. In San Francisco Bay we had PCBs at unacceptably
high levels. That is why we passed the Clean Water Act. The legacy of
every Congress should be to strengthen the Clean Water Act, to make
sure we do have clean waters in the United States. If this legislation
were to become law, the legacy of this Congress would be to weaken the
Clean Water Act. I don't think we want to do that.
As I pointed out, this legislation not only rescinds the final clean
water rule, but it really changes the goal of the Clean Water Act.
Currently, the goal is to ``restore and maintain the chemical,
physical, and biological integrity of the Nation's waters.'' That is
science based. Instead, it would be changed to protect traditional
navigable waters from pollution, which is a far different standard than
dealing with the health issues of the waters of the United States.
The arbiter of this would be the Department of Agriculture on the
hydrological science. They are not qualified to do that. It is not
their field. As I will point out in detail, the regulatory structure
for agriculture is not changed under this final Clean Water Act. And
the bill would ignore hydrological science by requiring a continuous
flow of water to be regulated, ignoring the fact that there are
seasonal variations where you can have water flows that dry up for a
period of time but which are still critically important to the supply
of clean water in the United States. It ignores the nexus test, which
has been referred to in Supreme Court cases, using adjacent water--next
to navigable waters--without any definition of what ``next to'' means.
It puts public health at risk.
For all of those reasons, we don't want to jeopardize and move
backwards on the Clean Water Act of 1972. We want to add to that. This
piece of legislation would, in fact, move us in the wrong direction.
I just want to, for one moment, talk about the Chesapeake Bay. The
people of Maryland and the people of our region know how important it
is for our economy--the watermen who make their living off it and the
recreational use of the bay. Millions of people every year depend upon
the bay for their recreation. It is a way of life for our State and for
our region. It is a national treasure--the largest estuary in our
hemisphere. And it depends upon receiving clean water supplies that
come in from other States, not just Maryland. You can't regulate the
clean water of the Chesapeake Bay without having a national commitment
to it because it knows no State boundary. That is why we need a strong
Clean Water Act.
I have heard my colleagues talk about agricultural farmers being
against this. Well, farmers will not be harmed by the EPA's final clean
water rule. In fact, it actually is good for farmers because it
provides certainty and clarity. In developing the rule, the EPA and the
Army Corps of Engineers listened carefully to input from the
agricultural community, the U.S. Department of Agriculture, and the
State departments of agriculture. As Senator Boxer pointed out, there
were over 400 meetings with stakeholders across the country.
The act requires a permit if a protected water is going to be
polluted or destroyed. However, agricultural activities such as
planting, harvesting, and moving stock across streams have long been
excluded from permitting, and that won't change under the rule. In
other words, farmers and ranchers won't need a permit for normal
agricultural activities to happen in or around those waters.
The rule does preserve agricultural exemptions from permitting,
including normal farming, silviculture and ranching practices. Those
activities include plowing, seeding, cultivating minor drainage, and
harvesting for production of food, fiber, and forest products. Soil and
water conservation practices in dry land are preserved. As to
agricultural storm water discharges, there are no changes. Return flows
from irrigated agriculture, construction, and maintenance of farm and
stock ponds or irrigation ditches on dry land are not regulated under
this bill. Maintenance of drainage ditches is not regulated.
Construction or maintenance of farm, forest, and temporary mining roads
are not regulated. It ensures that fields flooded for rice are exempt
and can be used for water storage and bird habitat.
The rule also does preserve and expand commonsense exclusions from
jurisdiction, including--this is excluded--prior converted croplands,
waste treatment systems, artificially irrigated areas that are
otherwise dry land, artificial lakes or ponds constructed in dry land,
water-filled depressions created as a result of construction
activities, and the list goes on and on.
The rule does not--does not--protect any types of waters that have
not historically been covered under the Clean Water Act. It does not
add any new requirements for agriculture. It does not interfere with or
change private property rights. It does not change policy on irrigation
or water transfers. It does not address land use. It does not cover
erosional features, such as gullies, rills, and nonwetland swells.
In other words, we have maintained the historic exemptions for
agriculture from the Clean Water Act. They are not expanded under this
rule.
So let me just cite a couple of quotes from people who are directly
impacted by what is being done under the clean water rule and, of
course, would be affected by the legislation before us.
As to the small business community, I quote from David Levine, who is
the CEO of the American Sustainable Business Council:
The Clean Water Rule will give the business community more
confidence that streams and rivers will be protected. This is
good for the economy and vital for businesses that rely on
clean water for their success. . . . Business owners want a
consistent regulatory system based on sound science. That's
what this rule provides.
Ben Rainbolt, executive director of the Rocky Mountain Farmers Union:
Water is critical to the livelihood of family farms and
ranches. The rule employs a commonsense rationale for both
clarifying what bodies of water and activities should fall
under the Clean Water Act, as well as maintaining the
existing exemptions for agriculture. This rule will result in
cleaner, safer water for agriculture, rural communities, and
all who count on healthy streams and rivers.
Andrew Lemley, government affairs representative, New Belgium
Brewing:
Our brewery and our communities depend on clean water. Beer
is, after all, over 90 percent water and if something happens
to our source water the negative affect on our business is
almost unthinkable. . . . We all rely on responsible
regulations that limit pollution and protect water at its
source. Over the past 23 years we've learned that when smart
regulations and clean water exists for all, business thrives.
I particularly like that one because we have all seen the ads on
television about clean water. It affects small businesses. It affects
all of our businesses.
I will conclude with those who depend upon recreation, who strongly
support the clean water rule and oppose the legislation that is before
us.
I will quote from Andy Kurkulis, owner of Chicago Fly Fishing
Outfitters and DuPage Fly Fishing Company:
Anyone who has ever swam in our beautiful Great Lakes, or
fished or boated on our abundant rivers and waters has
benefited immeasurably. Now is the time to raise our voices
in support of clean water--our economy, and future
generations of hunters and anglers, depend on it.
[[Page S7687]]
I think the verdict is clear. The rule which has been proposed will
add to the protections the public deserves for public health and their
drinking water. It is a sensible regulation. It is clearly under the
authority of the Clean Water Act.
I urge my colleagues to reject this legislation and certainly the
cloture motion so that we don't reject the rule and weaken the Clean
Water Act.
I yield the floor.
The PRESIDING OFFICER (Mr. Flake). The Senator from Wyoming.
Mr. BARRASSO. Mr. President, I appreciate the opportunity today to
move this legislation. It is bipartisan, and it protects our
environment and helps small businesses all across the country.
S. 1140, the Federal Water Quality Protection Act, is legislation I
introduced, along with a number of Democratic Senators--Senators
Donnelly, Heitkamp, and Manchin--and many other Senators.
The Senator from California previously spoke. I would point out that
the California Chamber of Commerce supports my legislation and the
California Farm Bureau supports my legislation because this legislation
will protect our Nation's navigable waters and the streams and wetlands
that help our navigable waters stay clean. This bill is a testament to
the hard work both sides of the aisle have done in achieving an
agreement on an environmental protection bill.
Our rivers, our lakes, our wetlands, and all other waterways are
among America's most treasured resources. In my home State of Wyoming,
we have some of the most beautiful rivers in the world--the Snake
River, the Wind River, and dozens of others. People from around the
world come to Wyoming to visit because we have an environmental
landscape that is second to none. Anyone who has come to my State and
experienced Yellowstone National Park, Grand Teton, and the Big Horn
Mountains comes away with a sense that Wyoming is a pristine and
beautiful place. It is what Wyoming sells, and it is what makes Wyoming
so unique.
The people of Wyoming are devoted to keeping our waterways safe. We
want to preserve the water for our children and grandchildren. We
understand there is a right way and a wrong way to do it.
It is possible to have reasonable regulations to help preserve our
waterways while respecting the difference between State waters and
Federal waters. This is the environmental legacy that my constituents
want, and it is a legacy they have earned for their decades of sound
management. It is the people of Wyoming who have kept Wyoming's
waterways pristine and beautiful.
The EPA has now released new rules. The new rule is called the waters
of the United States rule, WOTUS. This rule doesn't work for the people
of Wyoming. It most likely doesn't work for any of your constituents,
either--certainly not for those who have to put a shovel in the ground
to make a living.
The courts have begun to weigh in with their concerns about this
WOTUS rule, and they have actually given Congress and stakeholders a
necessary pause. That is why we are here today.
In August of this year, Judge Erickson of the District of North
Dakota issued an injunction that blocked the waters of the United
States rule in 13 States. He did it because the rulemaking record was,
in the judge's words, ``inexplicable, arbitrary, and devoid of a
reasoned process.'' With regard to the rationale behind the EPA's
threshold for what is and is not Federal water, he stated: ``On the
record before the court, it appears that the standard is the right
standard only because the Agencies say it is.''
The U.S. Sixth Circuit Court of Appeals then put a nationwide stay on
the rule on October 9 of this year. In granting the stay, the court
said, ``The sheer breadth of the ripple effects caused by the Rule's
definitional changes counsel strongly in favor of maintaining the
status quo for the time being.'' So keep it as it is for the time
being. The court added that ``a stay temporarily silences the whirlwind
of confusion that springs from uncertainty about the requirements of
the new Rule and whether they will survive legal testing.''
So what the courts have basically done is said: Let Congress have
time to act.
We don't have to sit on the sidelines and watch this rule slowly
crumble under legal scrutiny. Contrary to some activist groups'
rhetoric, we are not facing an immediate environmental water pollution
crisis. In fact, in granting the stay, the Sixth Court stated that
``neither is there any indication that the integrity of the nation's
water will suffer imminent injury if the new scheme is not immediately
implemented and enforced.'' They even called it a ``scheme.''
We now have the opportunity to do better, and to do better, we must
act now. That is why we must take this opportunity to pass the
legislation before us that will have EPA do a new rule under a specific
set of principles outlined by Congress. These are principles that
protect navigable waters and adjacent wetlands, as well as farmers,
ranchers, and other landowners.
I know some Senators gave the administration the benefit of the doubt
with this rule despite concerns they heard from their constituents, and
those Senators waited for the final result before making a judgment to
see if those concerns would be addressed. I am here to say that
whatever concessions the EPA says they made to address some of these
serious problems raised by their proposed rule, the EPA added new
provisions in the final rule that greatly expand their authority. This
is disappointing because I believe the great majority of Senators
voiced concerns in the process, and those concerns fell on deaf ears.
The EPA has produced a final rule worse than the one originally
proposed.
Here is an example. Instead of clarifying the difference between a
stream and an erosion on the land, the rule defines ``tributaries'' to
include anyplace where EPA thinks--where EPA thinks--it sees an
``ordinary high-water mark.'' What looks like, not what is; what looks
like, what they think is this ordinary high-water mark. Even worse, EPA
proposes to make those decisions from sitting at their desks using
aerial photographs, laser-generated images, claiming that a visit to
the location is not necessary.
Under the rule, the Environmental Protection Agency also has the
power to regulate something as ``waters of the United States'' if it
falls within a 100-year floodplain or if it is within 4,000 feet of a
navigable water or a tributary and the EPA claims there is a
``significant nexus.'' What is a significant nexus? Under this rule, a
``significant nexus'' can mean a water feature that provides ``life
cycle dependent aquatic habitat'' for a species. So if you are drawing
4,000-foot circles around anything the EPA defines or identifies as a
tributary--remember, 4,000 feet, so we are talking over 13 football
fields long, and everywhere there is a potential aquatic habitat. So
essentially almost the entire United States, according to this, would
be underwater. Actually, 100 percent of the State of Virginia is under
this jurisdiction and 99.7 percent of the State of Missouri falls
within this area--underwater, if you will, according to the EPA
guidelines.
I would like to take a moment to talk about puddles because one of
the previous speakers on the other side of the aisle talked about
puddles. People know what they think about when they think about a
puddle--like when it rains. The final rule does exempt puddles defined
as ``very small, shallow, and highly transitory pools of water that
forms on pavement or uplands during or immediately after a rainstorm or
similar precipitation event.'' I guess that would mean like when the
snow melts. The rule specifically does take control over other pools of
water created by rain, like those we have all around Wyoming--prairie
potholes, vernal pools--even if the land where these pools of water
form is far away from any navigable water or even a tributary. Under
this new regulation, nearly all of these pools of water created by rain
will now be considered ``waters of the United States,'' giving the
Environmental Protection Agency the power to regulate what you do on
that land. These provisions are sweeping and will create uncertainty in
communities all across the country.
There is plenty that I have already outlined in the waters of the
United States rule that is bad for agriculture, with the many methods
it provides for federalizing previously State-controlled water. The
States have made these decisions in the past. Now we are
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adding another level of government bureaucracy.
This rule is bad for agriculture, for those people who produce our
food. Farmers, ranchers, and others are used to working with their
States to protect their land and water under their own stewardship.
We heard from the Senator from California about groups opposing this,
but 480 different groups support this bill, and they are major national
groups: the American Farm Bureau, the Agricultural Retailers
Association, the American Soybean Association, the American Sugar
Alliance, the Milk Producers Council, the National Association of Wheat
Growers, the National Cattlemen's Beef Association, the National
Chicken Council, the National Corn Growers Association, the National
Council of Farmer Cooperatives, the National Pork Producers Council,
the National Turkey Federation, the U.S. Poultry and Egg Association,
the United Egg Producers, the USA Rice Federation. I could go on and
on. These are the food producers of America. They support the
legislation in front of the Senate today.
The point is, not one State, not a single State in this country is
out there that doesn't have a strong agriculture presence. We all do.
So I urge all Senators to make sure, as they prepare to vote on this
motion to proceed, that they check with their folks at home.
I would also note that many industries outside of agriculture are
concerned with the rule as well. These include manufacturers,
homebuilders, small businesses--you name it. They are all very
concerned with this rule, and they want Congress to act now.
Action could mean Congress can pass a Congressional Review Act
resolution, which will be considered possibly later in the process, but
that would eliminate the WOTUS rule and prevent a substantially similar
rule from being proposed. That would allow for a new rule as long as it
was not substantially similar to the existing rule. We need to vote on
this resolution.
I believe S. 1140 is a better route, the one we have here today. This
is a bipartisan compromise. This is the bill that has a number of
Senators from the Democratic side of the aisle cosponsoring the
legislation. Most importantly, this piece of legislation on the floor
today allows for Congress to establish the principles--Congress to
establish the principles--of what the new EPA would look like.
I know a number of Democrats have ideas to improve the legislation
that is on the floor today specific for their own States. If my
colleagues vote to proceed to the motion to proceed at 2:30 this
afternoon, we will have an open amendment process that would allow
Members to improve S. 1140 in a bipartisan way. We are willing to work
with anyone who wants to improve this rule in a bipartisan way. But
let's not sit on the sidelines anymore.
Rather than support an EPA final rule that actually makes it worse
and was worse than the proposed rule--a rule that will likely not
survive legal scrutiny based on what we saw from the courts, a rule
that doesn't represent the interests of our farmers, ranchers,
families, small businesses, and communities--let's move forward with
the bipartisan Federal Water Quality Protection Act to ensure the
public that we hear and we understand their concerns.
At the same time, let's give EPA and the Army Corps the certainty
they need to confidently move forward with a new rule--a rule that
truly reflects the needs of the constituents we represent. Let's
protect our Nation's waterways for the long term.
I yield the floor.
The PRESIDING OFFICER. The Senator from Rhode Island.
Mr. WHITEHOUSE: Mr. President, the famous Republican Senator from
Rhode Island John Chafee, who was one of the authors of the Clean Water
Act, would be sorry to see what has become of his party today and what
is being done to the Clean Water Act that so many Republicans worked so
hard on for over so many years. The pretense is that some evil
bureaucratic force at the EPA has leapt out to take over American
farmers and ranchers. That is not what has happened.
The Supreme Court made decisions about what the Clean Water Act says,
defining the navigable waters of the United States, and the EPA had to
follow the Supreme Court's guidance, which they did. I believe they
have been faithful to that Supreme Court guidance. They went through
more than 1,000 peer-reviewed scientific publications. They did 400
public meetings. They had over 1 million comments on the proposed rule.
Guess what. The vast majority of those comments were in support of the
rule.
What we have here is not some DC bureaucratic evil presence against
ranchers and farmers across the country. What we have here is a fight
between upstream and downstream.
As Senator Barrasso very plainly said a moment ago, the big players
in this are the big special interests in agriculture, the big pork
producers with their ginormous manure lagoons, and the big commercial
AG conglomerates. If you want to be with them fine, but let's not
pretend this is about protecting little ranchers and farmers.
This is about upstream versus downstream. I come from Rhode Island. I
am from a downstream State. I have to say that if I were in big
agriculture and I saw this rule, instead of coming in here and whining
and complaining and yanking people's chains in order to get changes
made, I would grab this rule and run like a bank robber because this
bill does so much for upstream agriculture at the expense of downstream
fishermen, downstream aquaculture, and the downstream health of our
rivers and bays. All agricultural exemptions and exclusions from Clean
Water Act requirements that have existed for nearly 40 years have been
retained. We have learned a little bit since then about what goes on.
One place I recently went to was Ohio. I spent the weekend in Ohio
doing one of my climate tours of the difficult States of the Union. In
Ohio, I went to Port Clinton on Lake Erie. I was taken by the folks
from Stone Laboratory and from some of the leading charter captains in
this area off to the Bass Islands just offshore. They told me about the
algal bloom that took place in the Toledo area. Technically, this was
not an algal bloom. Technically, it was cyanotic bacteria; it was a
bacterial bloom. It was so thick that the fishing captains described
how their boats slowed down in the muck. It was like running a
powerboat through pudding.
Toledo had to stop providing freshwater to its citizens and spent
millions of dollars having to import freshwater and provide bottled
water. Lake Erie is 2 percent of the water of all the Great Lakes with
50 percent of the fish. Two percent of the water and 50 percent of the
fish in the Great Lakes are in Lake Erie. It has a robust fishing
economy for walleyes and perch. The folks who go out and make this
their livelihood don't think it is very funny because this whole
watershed feeds down into Lake Erie.
Because of climate change, phosphorous has driven rain bursts. The
rains have powered up in this area. So the phosphorous is washing off
the farmers' fields and is coming down, and that is what is creating
the cyanotic bacterial bloom in Lake Erie.
This upstream stuff makes a big difference to people who are
downstream. Wyoming doesn't have a lot of downstream. Wyoming is a
landlocked State, so I appreciate why the Senator is so enthusiastic
about this. But for those of us who are downstream, this is a rule
that, frankly, is too weak. The fact that we have to stand here and
fight it from getting even weaker--from putting our rivers and our bays
at even more risk--is very unfortunate. It is not just phosphorous.
Phosphorous is what happens to drive the bacteria growth in Lake Erie.
It is insecticides, it is nitrogen, and they are doing immense damage
in our waterways.
I will conclude where I began. If you are Big Agriculture and this is
your special interest bill, you ought to run for it. Don't waste your
time on this. Grab this existing Clean Water Act bill, and go for it
like a bank robber with his money because you got away with being able
to continue to do immense damage to downstream resources without any
regulation at all. To now be here complaining--it is really amazing to
those of us who are representing downstream States, downstream
interests, downstream fisheries, downstream bays, and all the catchment
areas such as Lake Erie that get clobbered as a result of pollutants
that flow into our waters.
I yield the floor.
[[Page S7689]]
Ms. MIKULSKI. Mr. President, I wish to join my colleagues in support
of the clean water rule issued by the Environmental Protection Agency
and the Army Corps of Engineers and in opposition to efforts to derail
this critical rule.
Clean water is the lifeblood of our society and the basic foundation
of good public health. Our rivers, streams, and wetlands connect
communities near and far through a common resource. For decades, the
Clean Water Act has protected our waters from pollution so that
Americans can rely on safe drinking water, can enjoy outdoor
recreation, and can live in an environment that supports wildlife and a
healthy ecosystem.
However, for the last 15 years uncertainty has muddied the Clean
Water Act. The lack of clarity for which bodies of water are federally
regulated has led the Army Corps of Engineers to a backlog of 18,000
requests from landowners seeking help in complying with the Clean Water
Act. The new clean water rule resolves this uncertainty for our local
governments, our businesses, and our farmers by clarifying which waters
should be protected so that all Americans can rely on clean water. The
rule restores historic coverage of the Clean Water Act for streams and
wetlands that provide drinking water for one-third of Americans.
As one who has experienced the many benefits of the Chesapeake Bay my
whole life, I know just how important it is to preserve and protect the
world around us for future generations. The clean water rule would
restore protections for more than half of Maryland's streams and many
of its wetlands. Clean water means healthy families, healthy marine
life to support Maryland watermen, and a healthy environment. The clean
water rule is crucial to the health of the Chesapeake Bay and to
countless other bodies of water in the United States. Let's stand up
for our Nation's clean water and reject these attempts to derail the
clean water rule.
Mr. REED. Mr. President, today I join many of my colleagues in
opposing S. 1140 and S.J. Res. 22.
These measures would block or nullify the clean water rule, which
seeks to safeguard our water and restore protections to drinking water
sources for one in three Americans, according to the EPA, under the
authority of the Clean Water Act.
The clean water rule helps to clarify ambiguities stemming from the
2001 and 2006 Supreme Court decisions that made the scope of the Clean
Water Act uncertain.
This lack of protection has taken its toll, especially for wetlands
and intermittent and headwater streams, slowing permitting decisions
for responsible development, and reducing protections for drinking
water supplies and critical habitat.
According to the National Parks Conservation Association, over 117
million Americans, including many visitors to national parks, get their
drinking water from surface waters.
This includes many Rhode Islanders who get their drinking water from
sources that rely on small streams that are protected by the clean
water rule.
If Congress blocks the clean water rule, Rhode Island's streams and
millions of acres of wetlands nationwide will again be at risk from
pollution and degradation or destruction from development, oil and gas
production, and other industrial activities.
Blocking this rule would potentially imperil drinking water sources,
as well as the small businesses and communities that rely on clean
water.
Thousands of acres of wetlands that provide flood protection,
recharge groundwater supplies, filter pollution, and provide essential
wildlife habitat are safeguarded under the clean water rule, including
many of Rhode Island's streams, wetlands, waterways, and the bay.
Additionally, the clean water rule seeks to protect small streams and
wetlands that support fish, wildlife, and recreational areas.
We depend on clean water to drink, and our economy depends on clean
water from manufacturing to farming to tourism to recreation to energy
production and more to function and flourish.
We must make clean water a priority throughout the nation.
I urge my colleagues to support the clean water rule and vote ``no''
on both S. 1140 and S.J. Res. 22.
The PRESIDING OFFICER. The Senator from North Dakota.
Mr. HOEVEN. Mr. President, I rise today in support of bipartisan
legislation to fix intrusive regulation that will hurt job growth and
that threatens to place a large share of our Nation's farmers,
ranchers, and small businesses in the regulatory grip of the EPA. This
burdensome regulation is the EPA and Army Corps' final rule on the
waters of the United States. The bill to fix it is called the Federal
Water Quality Protection Act. That is the bill we are seeking to
proceed to today so that we can debate it, amend it, and pass it to
deal with this onerous regulation.
The burdensome regulation we are talking about, of course, is the EPA
and Army Corps' final rule on waters of the United States. The Federal
Water Quality Protection Act is legislation to address it. It was
authored by my good friend from Wyoming Senator Barrasso, and I
cosponsored this legislation, along with many others on our side of the
aisle. This is also a bipartisan bill with our colleagues from across
the aisle as well. This is bipartisan legislation. It has had
bipartisan input, and I encourage Members on both sides of the aisle to
proceed to this legislation. Let's have this very important debate on
behalf of our farmers, ranchers, and so many other job creators across
this country. As I say, let's offer amendments and have our votes, but
we need to deal with this very important legislation for the benefit of
the American people.
This waters of the United States final rule greatly expands the scope
of the Clean Water Act regulation over America's streams and wetlands.
It is a real power grab by the EPA, and it exceeds the statutory
authority of the EPA. The Supreme Court has found that Federal
jurisdiction under the Clean Water Act extends the ``navigable
waters.'' I don't think anyone is arguing about the EPA's ability to
regulate navigable bodies of water like the Missouri River, in my
State, but the Supreme Court has also made clear that not all bodies of
water are under the EPA's jurisdiction. Yet, under the administration's
final rule, all water located within 4,000 feet of any other water, or
within the 100-year flood plain, is considered a water of the United
States as long as the EPA or the Army Corps of Engineers decides it has
a ``significant nexus'' to that navigable water in the opinion of
either the Corps or the EPA.
These agencies define significant nexus so that almost any body of
water qualifies. For instance, if an area can hold rainwater or has
water that can seep into ground water, which is almost any water
anywhere, then there is significant nexus, according the EPA or the
Army Corps of Engineers, not to mention the fact that areas like the
Prairie Pothole region in my State of North Dakota are specifically
targeted as waters of the United States. The result is that the vast
majority of the Nation's water features are located within 4,000 feet
of a covered body of water.
If this expansive rule sounds out of bounds to you, you are not
alone. In fact, the waters of the United States rule is such an
overreach by the EPA and the Corps that 31 States are suing to overturn
it, including my State of North Dakota, which has led a lawsuit brought
by 13 of those 31 States.
When granting a preliminary injunction against this rule, the North
Dakota Federal District Court stated that ``the rule allows EPA
regulation of waters that do not bear any effect on the `chemical,
physical and biological integrity' of any navigable-in-fact water.'' It
went further to state that ``the rule asserts jurisdiction over waters
that are remote and intermittent waters. No evidence actually points to
how these intermittent and remote wetlands have any nexus to navigable-
in-fact water.''
Meanwhile, the Sixth Circuit Court in Cincinnati, OH, issued a
nationwide stay of the rule, citing that the EPA and the Corps did not
identify ``specific scientific support substantiating the
reasonableness of the bright-line standards they ultimately chose.''
This waters of the United States rule is clearly flawed from a legal
perspective, but I think it is even more important to take a look at
how this rule, if allowed to be implemented, will affect
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hard-working Americans with excessive regulation.
For those of you who haven't had the opportunity to visit with a
farmer from my State of North Dakota, know that dealing with excess
water is a common issue, a daily issue, to say the least. Those farmers
can tell you that if there is water in a ditch or a field one week, it
doesn't mean there will be water there the next week. It certainly
doesn't make that water worthy of being treated the same as a river.
A field with a low spot that has standing water during a rainy week
and happens to be located near a ditch does not warrant Clean Water Act
regulation from a legal or, more importantly, from a simple commonsense
standpoint.
The Corps and EPA have responded to these concerns by saying they are
exempting dozens of conservation practices, but these exemptions cover
farmers and ranchers only for changes made before 1977 or for changes
that don't disturb any water or land now considered to be a water of
the United States. In other words, if you need a new Clean Water Act
permit, you are not going to qualify for the EPA's exemption under this
rule. Moreover, the exemption does not cover all Clean Water Act
permits.
Because of this rule, the farmer with the low spot in the field next
to a ditch, described above, may now be sued under the Clean Water
Act's Section 402 National Pollutant Discharge Elimination System. This
farmer now faces the risk of litigation costs for the United States of
everyday weed control and fertilizer applicants, among other essential
farming activities.
Farmers and ranchers are far from the only job creators who will
suffer under this rule. In fact, the Small Business Administration
Office of Advocacy has expressed concern about the impact it will have
on other small businesses as well.
I am so concerned about this rule that I have led the effort on our
Appropriations Committee to stop the rule in its tracks. We were
successful in including language in the committee-passed Interior-EPA
Appropriations bill to do just that. The Federal Water Quality
Protection Act, however, offers a long-term solution by vacating the
waters of the United States rule and sending the EPA and the Corps back
to the drawing board to develop a new rule with instructions to consult
with States, local governments, and small businesses.
America's farmers, ranchers, and entrepreneurs go to work every day
to build a stronger nation. Thanks to these hard-working men and women,
we live in a country where there is affordable food at the grocery
store and where a dynamic private sector offers Americans the
opportunity to achieve a brighter future. The Federal Government should
be doing all it can to empower those who grow our food and create jobs.
Yet, instead, regulators are stifling growth with burdensome
regulations that generate cost and uncertainty. The final rule on the
waters of the United States produced by the EPA and the Corps to
regulate virtually every body of water--pretty much water anywhere in
the United States--is not the way to go. Let's stop this regulation.
Please join me in voting to proceed to the Federal Water Quality
Protection Act.
Mr. President, I yield the floor.
The PRESIDING OFFICER (Mr. Barrasso). The Senator from Arizona.
Mr. FLAKE. Mr. President, I come before the Senate to talk about the
waters of the United States rule and the legislation pending before us,
S. 1140. I hope we can proceed to the bill. This is an important issue.
Obviously, the definition of the waters of the United States sets the
rules of the game of who is covered under the Clean Water Act. As has
been stated, several Supreme Court decisions over the past decade and a
half have created a lot of uncertainty for landowners and those who
work the land who aren't sure whether they will be regulated. Regulated
entities need a rule that is consistent and that has some
predictability. That is not what we are getting with this rule.
The rule issued on June 29 defines jurisdiction very broadly, as we
heard, especially when it comes to streams that don't flow year round,
intermittent, ephemeral streams, of which Arizona has many. Several
scientists who have been involved in the rulemaking process have told
my staff that there is a disagreement between what the science says and
what this rule says. Science says that some streams are strongly
connected and others are not. There is a so-called spectrum of
connectivity, but this rule assumes they are all strongly connected.
Let me show a picture of a stream. This is Dan Bell, a rancher in
southern Arizona, near the border of Santa Cruz County, standing on a
streambed or a dry wash or arroyo that will likely be covered under
this rule. Like Dan, I grew up on a ranch in northern Arizona. My whole
life I have ridden through a 7-mile draw, a 9-mile wash. The topography
of the land was named for some of these dry washes, but they only had
water after a good rain which lasted a few minutes and that was it.
Those will likely, under the definition of this new rule, be defined as
waters of the United States.
If you can imagine what ranchers and other agricultural users are
feeling right now, thinking that the Federal Government, in regulating
what goes on with these streambeds or these dry washes, is going to
step in on other State regulations that already exist.
On August 27, a Federal district court judge blocked the
implementation in 13 States, including Arizona, saying that ``it
appears likely that the EPA has violated its congressional grant of
authority in its promulgation of the rule at issue.'' As we know, on
October 9 the Sixth Circuit Court of Appeals stayed the rule
nationwide. There is not consensus, obviously, on what this rule does
or does not do.
In internal memos, the Army Corps of Engineers assistant chief
counsel of environmental and regulatory programs highlighted a number
of ``serious areas of concern'' with the rule, including the
``assertion of jurisdiction over every stream bed,'' which would have
``the effect of asserting Clean Water Act jurisdiction over many
thousands of miles of dry washes and arroyos in the desert southwest.''
When you hear people stand and say that it will not affect dry
washes, that is not what the rule says. We need clarification. We need
to pass this legislation. We need to actually invoke cloture so we can
debate it and ultimately pass it. This is a bipartisan measure that
will address this issue and will ultimately provide a new rule that has
the consistency and uniformity that those who work the land really
need. Arizona will benefit from it, and the entire country will benefit
from it.
With that, I yield back.
The PRESIDING OFFICER (Mr. Flake). The Senator from South Dakota.
Mr. THUNE. Mr. President, Americans have had a tough time during the
Obama administration with a sluggish economic recovery that is barely
worthy of the name, stagnant wages for middle-class families, a health
care law that ripped away millions of Americans' preferred health care
plans, and burdensome regulations that have made it more challenging
for businesses, large and small, to grow and create jobs.
One Agency has done more than its fair share to make things difficult
for Americans, and that is the Obama EPA. During the course of the
Obama administration, this Agency has implemented one damaging rule
after another--from a massive national backdoor energy tax that
threatens hundreds of thousands of jobs to unrealistic new ozone
standards that have the potential to devastate State economies. Reputed
rebukes from various Federal courts have done little to check the EPA's
enthusiasm for crippling, job-destroying regulations.
This week, the Senate is taking up legislation introduced by my
colleague from Wyoming Senator Barrasso to address one of the EPA's
biggest overreaches--the so-called waters of the United States
regulation. The EPA has long had authority under the Clean Water Act to
regulate ``navigable waters,'' such as rivers, lakes, and major
waterways. The inclusion of the term ``navigable'' in the Clean Water
Act was deliberate. It was deliberate. The reason it was put there is
because Congress intended to put limits--real limits--on the Federal
Government's authority to regulate water and to leave the regulation of
smaller bodies of water to the States. Defining the waters to be
regulated as navigable
[[Page S7691]]
waters ensured that the Federal Government's authority would be limited
to bodies of water of substantial size and would not infringe on minor
bodies of water on private land, but over the last few years it became
clear the EPA was eager to expand its reach.
The waters of the United States regulation, which the EPA finalized
this year, expands the EPA's regulatory authority to waters such as
small wetlands, creeks, stock ponds, and ditches--bodies of water that
certainly don't fit the definition of ``navigable.'' It specifically
targets the prairie pothole region, which covers five States, including
nearly all of eastern South Dakota.
If we look at this chart, this is something that is a very normal
landscape in South Dakota. It is a field that one would see in South
Dakota, and of course when it gets some rain, some of the low-lying
areas get a little water in them, but this is basically a puddle. If we
look at what the regulation would do to the way in which farmers and
ranchers manage and are able to use their lands for production
agriculture, it has some profound impacts.
We are not talking about lakes and rivers. We are talking about
small, isolated ponds that ranchers use to water their cattle or
prairie potholes that are dry for most of the year but do collect some
water after heavy rains and snows along the lines of what we see in
this photo. Under this regulation, even dry creekbeds could be subject
to the EPA's regulatory authority. That is how far-reaching this
regulation is.
Let me talk about that authority for just a minute. When we talk
about a body of water coming under the EPA's regulatory authority, we
are not talking about having to follow a couple of basic rules and
regulations. Waters that come under the EPA's jurisdiction under the
Clean Water Act are subject to a complex array of expensive and
burdensome regulatory requirements, including permitting and reporting
requirements, enforcement, mitigation, and citizen suits. Fines for
failing to comply with any of these requirements and regulations, such
as the one that is now being filed by the EPA, can accumulate at the
rate of $37,500 per day.
Under the EPA's new waters of the United States rule, creeks and
ditches would be subject to this complex array of regulations. The
irrigation ditches in a farmer's cornfield, for example--ditches where
the water level rarely exceeds a couple of inches--would be subject to
extensive regulatory requirements, including costly permits and time-
consuming reports. Needless to say, these kinds of requirements will
hit farmers and ranchers hard. Agriculture is a time-sensitive
business, and these types of requirements would strain a farmer's
ability to fertilize, plant, and irrigate their crops when the seasons
and weather conditions dictate.
Farmers can't afford to wait for a Federal permit before carrying out
basic land and resource management decisions. I have received numerous
letters from South Dakota farmers and ranchers, as well as local
governments, expressing their concern with the EPA's new rule. One
constituent writes:
We live in Deuel County, South Dakota, where we raise
cattle and plant wheat, alfalfa, corn, and soybeans. . . .
Our land consists of rolling hills and many shallow low
spots. . . . According to the new rules, our entire farm
would be under the jurisdiction of the EPA. . . .
That same constituent goes on to say:
Mandatory laws by the EPA are just wrong and are often
written and enforced by someone who has never lived or worked
on a farm and doesn't understand how the forces of nature
cannot be dictated. The weather is often extreme, and we must
work with it. . . . 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.
That is from a constituent from my State of South Dakota.
Another constituent, also from my home State, said:
[O]ur business is going to be put into acute peril if the
EPA is not stopped. . . . By removing the word ``navigable''
from the Clean Water Act, they will be in control of EVERY
drop of water in the United States, which is disastrous for
those of us engaged in farming and ranching.
This is from the Pennington County Board of Commissioners in South
Dakota. Pennington County is the second largest county and home to our
second largest city, Rapid City. They wrote:
In addition to tourism, agriculture is a critical piece of
our local economy. . . . This proposal would cause
significant hardships to local farmers and ranchers by taking
away local control of the land uses. The costs to the local
agricultural community would be enormous. This would lead to
food and cattle prices increasing significantly.
The board also warned:
If stormwater costs significantly increased due to this
proposed rule, not only will it impact our ability to focus
our available resources on real, priority water quality
issues, but it may also require funds to be diverted from
other government services that we are required to provide
such as law enforcement, fire protection services, etc.
I have received letter after letter like these from farmers,
ranchers, business owners, and local governments across my State, and
they are not alone. Concern is high across all of the United States.
That is why 31 States have filed lawsuits against the EPA's
regulations, as have a number of industry groups. The courts have
already granted them some temporary relief. Last month, the Sixth
Circuit Court of Appeals expanded an earlier injunction and blocked
implementation of the EPA's rule in all 50 States, but a final decision
of the courts could be years away.
To protect Americans affected by this rule from years of litigation
and uncertainty, this week the Senate is taking up the Federal Water
Quality Protection Act, introduced by Senator Barrasso, which would
require the EPA to return to the drawing board and write a new waters
of the United States rule in consultation with States, local
governments, agricultural producers, and small businesses. It seems
only fitting that you actually ought to consult with the people who are
impacted by this. If that had happened, maybe there wouldn't be 31
States that have already filed lawsuits against the Federal Government,
and maybe we wouldn't have all of these local governments, agricultural
producers, small businesses, homeowners, and developers that are
mortified about the impact this will have on them.
In my time in Washington, I have never seen an issue that has so
galvanized opposition all across the country. Sometimes there might be
an issue that might affect a specific area or industry sector in our
economy, such as agriculture. We talk a lot about those issues in my
State because this is our No. 1 industry, but there is rarely an issue
which generates opposition from so many sectors of our economy. That is
how far-reaching this regulation is. Arguably, this is the largest
Federal land grab in our Nation's history.
What the legislation also does is explicitly prohibits the EPA from
counting things like ditches, isolated ponds, and storm water as
navigable waters that it can regulate under the Clean Water Act. It
takes away these things we are talking about--the stock ponds, ditches,
and frankly the puddles--from areas that the EPA can assert its
jurisdiction in and regulate.
Everybody agrees on the importance of clean water. Farmers in my
State depend on it, and the legislation we are considering today will
ensure that the EPA retains the authority to make sure our lakes and
rivers are clean and pollutant-free. Members of both parties should be
able to agree that allowing the EPA to regulate what frequently amounts
to seasonal puddles is taking things a step too far. The cost of this
rule will be steep, and its burdens will be significant, impacting
those who have an inherent interest in properly managing their water to
protect their livelihoods and health.
Back in March, a bipartisan group of 59 Senators voted to limit the
EPA's waters of the United States power grab, and 3 Democratic Senators
are cosponsors of the legislation before us today. It is my hope that
more will join us to protect farmers, ranchers, small businesses, and
homeowners from the consequences of the EPA's dangerous new rule.
Americans have suffered enough under the Obama EPA. It is time to
start reining in this out-of-control bureaucracy. I hope we will have a
big bipartisan vote today in support of the legislation before the
Senate.
I yield the floor.
The PRESIDING OFFICER. The Senator from Indiana.
Mr. DONNELLY. Mr. President, whether you are a farmer or a small
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business owner, a Republican, a Democrat or someone who works at the
EPA, we all want clean water. If we are going to ensure that our clean
water protections are effective, we need to work together and we need
to use the feedback from the people who work with the land every single
day. Unfortunately, the EPA's waters of the United States rule was
written without sufficient collaboration with some of the people who
care about this rule the most--our farmers, our small business owners,
our cities and States. As a result, the U.S. Court of Appeals for the
Sixth Circuit has blocked the implementation of the waters of the
United States rule, known as WOTUS, nationwide.
This ruling was in line with the concerns we have raised all along.
When you write a rule without significant input from all of those
impacted, including our farmers, ranchers, small business owners, and
local governments, legal challenges are inevitable. Instead of further
lengthy and costly court battles, Congress should act to clarify the
coverage of the Clean Water Act or the courts will do that job instead
of us. It is time to roll up our sleeves and provide to our ag
producers, conservationists, and county and local governments the
regulatory certainty they need to continue efforts to improve water
quality.
That is why I was proud to help author and introduce the Federal
Water Quality Protection Act with a bipartisan group of Senators,
including Senator John Barrasso, a Republican from Wyoming, Senator
Heidi Heitkamp, a Democrat from North Dakota, and Senate Majority
Leader Mitch McConnell, a Republican from Kentucky.
Most Hoosiers believe we can get more accomplished when we work
together, and I have worked across the aisle on what I believe is a
very responsible solution. I hope today we will continue this debate.
It will be difficult, but we have the ability to get this right. If
Congress fails to act, our ag community will be faced with continued
confusion and uncertainty, and we will not have strengthened our
efforts to protect the waters of this country.
The WOTUS rule is a perfect example of the disconnect between
Washington and the Hoosier ag community, farmers and ranchers around
our country, small businesses, and our families. No one wants cleaner
water or healthier land more than the families who live on those farms
and who work on our farms every single day right next to those waters--
the same waters their children play and swim in and with which they
work every day. That is why countless Hoosier farmers are frustrated
that Washington bureaucrats are calling the shots rather than working
together with our ag community and our families to develop sensible
environmental protection. This can be done if it is done the right way.
In Indiana we are already leading in many agricultural conservation
and environmental protection efforts. We have more farmers than ever
before doing things such as planting cover crops and using no-till
farming techniques that keep soil in the fields and keep the inputs in
the fields. We are leading the Nation in cover crop efforts. It is
voluntary, and it is part of a program to make sure our waters--our
rivers and streams--are cleaner. This is being done by people, not by
bureaucrats.
Let's have some faith and confidence in the people of this country
and in the wisdom of our ag community in Indiana and in every other
State. If we work with our friends and our neighbors, we can do even
more to improve water quality.
Listen to farmers such as Mike Shuter and Mark Legan. Mike is an
Indiana Corn Growers Association member from Frankton, IN, who won the
National Corn Growers Association Good Steward Award this year for
sustainable corn farming practices. Mike said:
I want clean drinking water for my wife, kids, and
grandkids. We work hard to reduce the amount of pesticides,
insecticides, and fertilizer on our farm. The EPA is going
too far by attempting to unilaterally claim jurisdiction over
my farmland.
Mark Legan is a farmer who received the American Soybean
Association's Conservation Legacy Award in 2013. Here is what he had to
say:
Farmers have been good stewards of the land for
generations. We have found ways to produce more while using
less pesticides and fertilizers. Waters of the U.S. gives the
EPA one-sided jurisdiction over our ditches and fields, makes
it more difficult to grow crops, and makes it harder to feed
the world.
After hearing these frustrations from Hoosier ag producers and from
local and county governments about this rule, and because I am the
hired help not only for Indiana but for our country, we wrote the
Federal Water Quality Protection Act. The intention is to strike a
reasonable, bipartisan compromise--what a unique concept. It is the
concept that our country has been built on. The legislation is simple:
Focus on common science principles to shape a final rule and to require
straightforward procedures that the EPA skipped the first time. These
are steps the EPA should have done in the first place, such as
reviewing economic and small business impacts.
The bill is not designed to destroy or delay the rule. In fact, our
bill asks the EPA to complete its rule by December 31 of next year.
There is no long hide-the-ball game being played here. We want to have
this done by the end of next year.
The legislation includes explicit protections for waters that almost
everyone agrees should be covered. If a body of water impacts the
quality of the Wabash or Kankakee Rivers, the Great Lakes or anything
similar, our bill protects those waters. It protects commonsense
exemptions for isolated ponds and agricultural or roadside ditches--
most of which the EPA has indicated they never intended to cover.
We require consultation with stakeholders such as States and the ag
community, including soil and water conservation districts. Giving the
EPA principles, procedure, and a clear deadline this bipartisan effort
is meant to be constructive.
I urge my colleagues, Republican and Democrat, to allow us to
consider the bipartisan Federal Water Quality Protection Act. It is our
obligation to debate this important issue. I am confident a bipartisan
majority of my Senate colleagues will support this commonsense
bipartisan bill.
This much I promise: I will continue to push Congress to pass a
permanent solution. We will never stop advocating on behalf of
Indiana's farmers and families, ranchers and small businesses, and
those of the entire country.
I yield back my time.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. MANCHIN. Mr. President, first of all I want to thank my
colleague, who has been working so hard on this. It affects Indiana,
West Virginia, and every State in the Union. I hope people realize what
is going on. This isn't a partisan issue. This is definitely a
bipartisan issue, and it affects everybody in our State.
I want to thank Senator Markey for allowing me to speak for a few
minutes. I have a funeral in Arlington to attend for one of our dear
soldiers.
I have spoken on the Senate floor many times before about the burdens
the EPA has continued to impose on hard-working families and hard-
working people in West Virginia. Today, however, I am not speaking
about the mining jobs I have spoken about so much. I am speaking about
everyday West Virginians. If you have any property whatsoever, if you
have a small business or a large business, if you come from any walk of
life, if you are in agriculture or are a small farmer or are in large
agriculture, this affects you. This allows the overreach of the
government, as we have talked about so many times.
If you are a government agency, if you are a city, a small town, if
you are a county, any decisions you make will be affected or could be
affected. If imposed, the agency's waters of the United States rule,
known as WOTUS, would have a harmful impact all over this great
country. Again, the WOTUS rule will not just impact certain industries;
it impacts everybody. The EPA wrote these rules without consulting some
of the people who care about clean water the most--everyday West
Virginians and Americans all across this great country. The WOTUS rule
would impose heavy financial penalties on all of us, including our
small business owners, farmers, manufacturers, and property owners.
If you have ever seen the terrain of West Virginia, we are the most
mountainous State east of the Mississippi.
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There is very little flat land whatsoever. So anything can be affected
and everybody will be affected. Whether you build a home, have a small
business or are a little city or community, you are going to be
affected. If they can show on an aerial map that there used to be a
river or stream of any kind, that comes under their jurisdiction. If
anyone thinks differently--that it is not going to happen--this is
exactly what is going to happen. That is why all of these small towns
and the counties in rural America are totally opposed to this.
There is nobody I know of who doesn't want clean drinking water. With
that, we are not saying that the Federal Government shouldn't have
oversight on all of our waters that are for drinking, are navigable
and/or recreational. In fact, I live on the water, so I know what it is
to have the clean waters in our streams and rivers. This is not what we
are talking about.
As my good friend from Indiana and my good friend from North Dakota
are going to be talking about, this affects everybody. It affects every
puddle, ditch, and every runoff--you name it; it affects it--and that
means it affects all of our lives. They are going to say: Don't worry.
We are not going to do all that. We are going to exempt it.
We have heard that one before--until it is something they don't like,
until basically it gives them a chance to shut down something. I have
farmers who are concerned about basically the crops they grow, the
wildlife, the poultry and the livestock they have to care for. All of
this could be affected. We fought this before.
The Supreme Court instruction is to clarify the Clean Water Act
jurisdiction over bodies of water in use. This proposal goes too far.
In fact, the Supreme Court has already ruled that not all bodies of
water fall under the Clean Water Act regulations. So why are they
expanding it? If they have already ruled on it, why are they expanding
these rules? Why do they believe they can grab this?
They claim they were not required to consult with local governments
under the federalism Executive order, arguing the rule did not impact
them. The EPA claims that even though it did not comply with the
Executive order, it still reached out to local governments. That is not
true. That is not true in West Virginia. I can tell you that.
The EPA claims it addressed the concerns of local governments by
providing exemptions for public safety ditches and storm water control
systems. That is not true either. So that being said, I can only tell
you what my citizens, my communities, business owners, and local
governments are being affected by and why they are concerned.
The bottom line is it is completely unreasonable that our country's
ditches, puddles, and otherwise unnavigable waters be subjected to the
same regulations of our greatest lakes and rivers. On that we all
agree.
The WOTUS rule exempts ditches only if the local government can prove
that no part of the entire length of a ditch is located in an area
where there used to be a stream. The WOTUS rule exempts storm water
management systems only if they were built on dry land. The WOTUS rule
says EPA can rely on historical maps and historical aerial photographs
to determine where the streams used to be--not where they are now.
These provisions of the WOTUS rules should strike terror in the heart
of every mayor, county commissioner, and manager of a city that was
founded before the last century. This is how asinine this is. It is
unbelievable that with a sweep of the pen, the EPA is trying to take us
back to the days of Lewis and Clark. According to a memo written in
April, not even the Corps of Engineers knows how it will determine
which ditches are exempt and which are former streams. This is our own
government.
Morgantown, WV, was founded in 1785. Wheeling, WV, was established in
1795. To go back in time to determine where streams used to be would be
near impossible. I don't want West Virginia cities to have to worry
about the status of their municipal infrastructure.
There is no question that with the additional permitting and
regulatory requirements, the implementation of this rule will place a
significant burden on West Virginia's economy, which is already hurting
very badly. That includes businesses, manufacturing, housing, and
energy production. Many in my home State are already struggling to make
ends meet. We are one of the highest unemployment States, have been hit
harder than any other State. We are fighting like the dickens. We will
continue to fight and persevere.
The new financial and regulatory burdens will set people up for
failure in an already unstable economic climate which in large part is
caused by harmful regulations the EPA and the administration have
established. We all want to drink clean water and breathe clean air,
but we can achieve this without regulating hard-working Americans out
of business.
This rule represents broad overreach that has the force of law
without congressional approval. I would say you cannot regulate what
has not been legislated. Why are we here? Why are we elected to
represent the people when we cannot even do it, when we have to fight
our own government to do the job we have been charged with doing?
I urge my colleagues to support this motion to proceed to S. 1140.
I yield the floor.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. MARKEY. Mr. President, Boston's sports teams have had their share
of great moments. After a win, you can hear the crowd celebrating by
singing a song by the Standells that goes like this:
Yeah, down by the river,
Down by the banks of the river Charles.
Well I love that dirty water,
Oh, Boston, you're my home.
While dirty water signals a win for a Boston team when that is sung,
the real victory has been beating the pollution in the Charles River
and Boston Harbor since the passage of the Clean Water Act. That
victory is thanks to the implementation of that law, which protects
sources of our drinking water from pollution and restores dirty waters
back to health.
We need to keep the Clean Water Act's winning streak alive.
Unfortunately, the bill the Senate may consider today could end the
record of wins for the Clean Water Act. Its history of success has made
the Clean Water Act one of the greatest American success stories.
Before the Clean Water Act, there was no Federal authority to limit
dumping, set national water quality standards, or enforce pollution
rules. City and household waste flowed untreated into rivers and
harmful chemicals were poured into wetlands and streams from factories
and powerplants. Back then, we were all on the honor system. Water
supplies were managed by a patchwork of State laws and an appeal to the
common good. The result: mass pollution on a historic scale, oozing
rivers so toxic that they could ignite into flames, fish dead by the
thousands. America's riversides became a theater of public hazards and
chemical death.
In short, before the Clean Water Act and the Federal involvement that
was necessary, America's waterways were its sewers. Then, in 1969, a
public firestorm was touched off by a Time magazine photo of the
Cuyahoga River on fire in Ohio. With full-throated support from the
public, Congress mobilized and produced the Clean Water Act, one of the
most important pieces of environmental law in the history of the United
States. The ultimate goal of the Clean Water Act--making waterways safe
for the public and wildlife--was so popular that in 1972 a bipartisan
Congress overrode a veto by Richard Nixon.
The successes and the benefits yielded by the pursuit of the goal of
clean waterways would prove tremendous in the years ahead.
The Clean Water Act guards the Nation's natural sources of drinking
water by guiding how we use them. It protects the wetlands, the
streams, and other surface waters that ultimately provide us with
drinking water.
The Clean Water Act has slowed the loss of wetlands, known as the
``kidneys of the landscape'' because of their ability to remove
pollution from the water. They do this for free, making wetlands the
most fiscally responsible water system in the world. The only
alternative to this free service is to put our waters on dialysis by
constructing filtration plants for billions of dollars in long-term
maintenance and building costs. Our wetlands support the $6.6
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trillion coastal economy of the United States, which comprises about
half of the Nation's entire gross domestic production and includes our
nearly $7 billion annual fishery industry and $2.3 billion recreational
industry.
The Clean Water Act has doubled the number of swimmable and fishable
rivers in the United States. It has saved billions of tons of fertile
soil from being washed off of our farms. It has fostered State and
Federal collaboration, giving States a key role in managing poisonous
runoffs from cities and farms. It established a permitting system to
control what gets dumped into America's waterways. It developed fair
and objective technology-based pollution control standards to help
industries plan their compliance investments in advance. It sets
science-based water quality standards and requires well-thought-out
plans to meet them. Its environmental monitoring requirements prevent
rehabilitated waterways from backsliding into unusable condition. It
provides $2 billion annually in critical funding to States for water
quality and infrastructure improvements. Among its most important
contributions, it empowers citizens to enforce its provisions and
actively guard the health of their families.
For all of its benefits and successes, however, the Clean Water Act
has still not reached it goal. One-third of our rivers still have too
much pollution. When these drain into coastal waters, they add to the
problems being caused by ocean acidification and warming. The pollution
can cause dead zones off of our coasts and in the Great Lakes, putting
drinking water supplies at risk and threatening sea life. While the act
has slowed their loss, wetlands continue to disappear, and gone with
them are millions of wetland-dependent creatures, such as ducks and
turtles and most of the species of fish we find on our plates.
Clearly, clean water must be preserved for the health of the public,
the environment, and the economy. That is why the Environmental
Protection Agency and the Army Corps have spent so much time developing
the recently finalized clean water rule. The clean water rule clears up
confusion caused by two U.S. Supreme Court rulings on the reach of
Federal water pollution laws and restores protections that were
eliminated for thousands of wetlands by President George W. Bush in his
administration.
Specifically, the rule revises the definition of ``waters of the
United States,'' a term that identifies which waters and wetlands are
protected under the Clean Water Act. The rule was written in response
to requests for increased predictability and consistency of Clean Water
Act permitting programs made by stakeholders such as the National
Association of Home Builders and the National Stone, Sand & Gravel
Association.
The clean water rule restores clear protections to 60 percent of the
Nation's streams and millions of acres of wetlands that were stripped
away under the previous Republican administration. The EPA estimates
that returning the clean water protections will provide roughly half a
billion dollars in annual public benefits, including reducing flooding
damage, filtering pollution, supporting over 6 million jobs in the over
half-a-trillion-dollar outdoor recreation industry.
The rule protects public health by closing pollution loopholes that
threaten drinking water supplies to one-third of Americans. In
Massachusetts, the drinking water of nearly 3 in 4 people will now be
protected.
The rule enjoys broad support from local governments, small
businesses, scientists, and the general public, who submitted over
800,000 favorable public comments. Eighty percent of Americans support
the clean water rule, and when asked if Congress should allow it to go
forward, they responded with a resounding yes.
Despite public support for clean water and this commonsense rule, the
Republicans want to bring a bill to the floor that would undermine the
national goals and policy written by the Clean Water Act. If enacted,
this water-polluting bill would undermine the legal framework that
protects our water. It would once again leave one-third of the Nation's
drinking water vulnerable to dangerous contamination. It would set up a
fight over technical details that would prevent us from protecting the
public health by preventing the dumping of toxic chemicals into natural
public drinking water sources.
The critics falsely claim that the clean water rule overreaches
because it enables broader Federal jurisdiction than is consistent with
law and science.
So, ladies and gentlemen, I support the work the EPA and the Army
Corps have done in putting together the clean water rule. It will
continue the string of victories our Nation has enjoyed under the Clean
Water Act. I urge my colleagues to oppose any legislative efforts to
overturn the clean water rule. We need to keep the Clean Water Act
working for all of America.
I want to make sure that the only place in Massachusetts people are
talking about dirty water is after one of our great Boston sports teams
have chalked up another victory. That is the only time we should be
singing about dirty water because otherwise the health and well-being
not just of people in Massachusetts but all across our country will be
harmed.
I yield the floor.
The PRESIDING OFFICER. The Senator from North Dakota.
Ms. HEITKAMP. Mr. President, listening to this, you would think that
people who want some commonsense regulation don't believe in clean
water. You would think that if we do this, somehow the Charles River or
the Cuyahoga River, having been navigable the whole while here under
the Clean Water Act jurisdiction, would suddenly not be navigable. That
is not the case. That is not the case. I think it is really important
that we ratchet down the emotion and we start looking at the facts.
Let's start with where we are right now with this idea of what are,
in fact, jurisdictional waters under the Clean Water Act. This has been
a debate for 40 years. It has been in and out of the courts for 40
years. In 1985 the Court made a ruling. In 2001 the Court made a
ruling. In 2006 the Court decided a case called Rapanos. What Rapanos
said is--four Justices said EPA is right, four Justices said EPA is
wrong, and one Justice said EPA may be right. As a result, we have
created a system that has caused great uncertainty in America today as
it relates to how we use land. Acting on that uncertainty, EPA
promulgated a rule. That rule is inconsistent, in my opinion, with the
direction they were given by the Court. That rule has created an
incredible amount of uncertainty.
To suggest that all the major ag groups, all the groups that are out
there, including the Association of Counties, including many of the
Governors, are all wrong and they all love dirty water is absolutely
insulting as we kind of move forward on this discussion.
I am going to show you why North Dakota is concerned about this
regulation. This is an aerial picture of my State. You may not think
there is a lot of water in North Dakota. This is a picture of my State
and Devils Lake in the Devils Lake area. You might say: Oh she picked a
picture that looks like this.
I ask and invite any of you to come to North Dakota and I will fly
you anywhere in North Dakota. This is what North Dakota looks like. You
see all this water here and you see all this water here and you see
this. Do you see that? That is a pothole, what we call a prairie
pothole. It used to be and seasonally is full of water. Sometimes it is
farm, sometimes it is not. Is this waters of the United States? It is
not connected to any navigable stream. It is not adjacent to any kind
of navigable water, moving water. None of this is connected with any
kind of cross-land connection.
I will tell you under the rule that we have and under the
interpretations of the Corps of Engineers--which we always forget when
we are talking about this--the Corps of Engineers and EPA, what they
would say is: We don't know. We would have to send biologists to take a
look at this. We would have to spend hundreds of thousands of dollars,
of taxpayer dollars, to determine whether in fact there is substantial
nexus.
We asked for a simple rule. First, just as a point of view, when the
statute says navigable water, that water ought to be moving someplace
other than into the ground. All water in the
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world is interconnected. We know that. That is a matter of hydrology.
That is a matter of science. Scientists would say there is no such
thing as a discrete separation.
But you know what. Legally there is. It did not say every drop of
water is controlled by the Environmental Protection Agency under the
Clean Water Act, it said navigable water, and we have been in this
fight for a lot of years, including 2006.
Mr. President, I know we are in excess of the time. I ask unanimous
consent for just a little more time to conclude my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. HEITKAMP. I want to make this point because it really is a
question. The Senators who have come to the floor and talked about this
rule talk about: Look, we are making progress. What they haven't told
you is that rule has absolutely no legal effect anywhere in this
country today. Do you know why? Because the courts of the United States
have stayed it. It is not in effect while we litigate yet another case.
So when we looked at this problem and we looked at trying to give
certainty to farmers who own this land--by the way, this land is not
owned by the people of this country. This land is owned by farmers who
need certainty, who need to know. So we looked at this and we said: It
is time for Congress to do what Congress ought to do, which is to
legislate, which is to actually make a decision--to not just get on
either side of a regulatory agency and yell about whether they are
right or wrong but actually engage in a dialogue.
That is why Senator Donnelly, Senator Barrasso, Senator Inhofe, and I
sat down and said: Look, this will continue in perpetuity. We will
spend millions of dollars litigating this and never get an answer
because chances are we are back to 441, and that is not an answer.
So we put together a piece of legislation looking at how can we as
legislators, as Congress provide some parameters on what this means.
People who will vote no on a motion to proceed will tell you we want
EPA to decide. I am telling you that people in this country expect
Congress to decide. They expect Congress to make this decision, to step
up, and resolve this controversy because 40 years and millions and
millions of dollars spent in litigation is not a path forward.
As we look at this legislation simply on a motion to proceed on one
of the most controversial issues in America today--which is waters of
the United States--not voting to debate this issue, not voting to
proceed on this issue is the wrong path forward.
I urge my colleagues to open the debate and let's talk about this
map--not the Charles River and not the Cuyahoga River because I will
concede that they are navigable water. I want to know in what world is
this navigable water of the United States, what world should EPA have
jurisdiction over this pond, and in what world--when you are the farmer
who owns it--do you think you have any certainty as we move forward?
We are trying to give certainty to the American taxpayer. We are
trying to give certainty to people who build roads and bridges. We are
trying to actually have a debate on an important issue of our time.
I urge my colleagues to vote yes on the motion to proceed so we can
have an open debate--it could be fun--as we talk about this issue.
With that, I yield the floor.
The PRESIDING OFFICER. The Senator from Maryland.
Mr. CARDIN. Mr. President, I ask unanimous consent to speak for up to
2 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CARDIN. Mr. President we will have a chance at 2:15 p.m., I
believe, for 15 minutes to close the debate, and at 2:30 p.m. we are
going to have a vote on a cloture motion. I urge my colleagues to vote
against the cloture motion.
I agree with my friend Senator Heitkamp that we need certainty. We
have been debating this issue for a long time since the court cases. If
this bill were to become law, you are not going to have certainty. It
is going to be litigated. Whatever is done, it is going to be
litigated. We know that. We have seen the litigious nature of what has
happened over the course of the issues.
Yes, I want Congress to speak on this. Congress has spoken on this.
Congress has said very clearly that we want the test of the Clean Water
Act to be to restore and maintain the chemical, physical, and
biological integrity of our Nation's waters.
I don't want Congress to say: No, we don't want that. We now want a
pragmatic test that could very well jeopardize the Clean Water Act. The
bottom line is each Congress should want to strengthen the Clean Water
Act, not weaken it. This bill would weaken the Clean Water Act and
prevent a rule that has been debated for a long time from becoming law.
I urge my colleagues to reject the motion for cloture, and we will
have a little bit more to say about this at 2:15 p.m.
The PRESIDING OFFICER. The Senator from Wyoming.
Mr. BARRASSO. Mr. President, I ask unanimous consent for 2 additional
minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BARRASSO. Mr. President, I ask unanimous consent that the
mandatory quorum call under rule XXII be waived with respect to the
cloture vote on the motion to proceed to S. 1140.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. BARRASSO. Mr. President, I yield the floor.
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