[Congressional Record Volume 162, Number 30 (Thursday, February 25, 2016)]
[Senate]
[Pages S1019-S1020]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]





 WATERS OF THE UNITED STATES RULE AND FILLING THE SUPREME COURT VACANCY

  Mr. GRASSLEY. Mr. President, I rise for the purpose of showing how 
one bureaucracy, the Corps of Engineers--and to some extent the EPA 
working with them--has already made farming very difficult and how, if 
the waters of the United States rule goes into effect, it can be much 
worse than even what I am going to be referring to.
  Now, I am going to quote word for word a farmer's problem from the 
Iowa Farm Bureau's Spokesman dated January 27, 2016, and then I am 
going to make some comments on it.
  For that reason, since I am told the next speaker is not going to 
come until 10:15, I ask unanimous consent to continue until that time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GRASSLEY. Mr. President, before I start quoting, this is a story 
about a California farmer by the name of John Duarte, of Tehama County, 
CA. The title is ``One farmer's ordeal may signal agencies' actions 
under WOTUS.''

       All John Duarte did was hire a guy to plow some grazing 
     land so that he could raise wheat on 450 acres that his 
     family had purchased in California's Tehama County, north of 
     Sacramento. The land had been planted to wheat in the past. 
     The wheat market was favorable and the farmer made sure to 
     avoid some wet spots in the field, called vernal pools, which 
     are considered wetlands.
       But that plowing, which disturbed only the top few inches 
     of soil, unleashed a firestorm from the U.S. Army Corps of 
     Engineers, the Environmental Protection Agency, and other 
     regulators against the California Farm Bureau member. The 
     regulators' actions stopped Duarte from raising wheat, tried 
     to force him to pay millions of dollars to restore the 
     wetlands in perpetuity--although there was no evidence of 
     damage--and sparked lawsuits and counter-lawsuits.
       Duarte's experience could well turn out to be an example of 
     how the agencies will treat farmers in Iowa and all over the 
     country under the expansive Waters of the United States rule, 
     according to Duarte, his attorneys and experts at the 
     American Farm Bureau Federation.
       ``This really shows how these agency actions can play out 
     on a specific family farm,'' Duarte said recently during a 
     press conference at the American Farm Bureau Federation 
     annual convention in Orlando. ``We aren't concerned about it 
     because John Duarte is having a bad time with the feds. We 
     are concerned because this is a very serious threat to 
     farming as we know it in America.''
       Although the EPA and other agencies continue to say to 
     farmers that the WOTUS rule will not affect normal farming 
     practices, such as plowing, Duarte's case shows that it will, 
     said Tony Francois, an attorney with the Pacific Legal 
     Foundation, which is representing Duarte.
       ``Anyone who is being told not to worry about the new WOTUS 
     rule, they should be thinking about this case,'' Francois 
     said. ``The very thing they are telling you not to worry 
     about is what they are suing Duarte over--just plowing.''
       Don Parish, [American Farm Bureau Federation] senior 
     director of regulatory relations, said a big problem is the 
     wide parameters that the agencies have placed in the WOTUS 
     rule. He noted the rule is filled with vague language like 
     adjacent waters and tributaries, which are difficult to 
     clarify.
       As broad as possible. ``They want the Waters of the United 
     States to be as broad as they can get it so it can be applied 
     to every farm in the country,'' Parish said.
       Iowa Farm Bureau Federation and other organizations have 
     worked hard to stop the WOTUS rule, which was imposed last 
     year but has been temporarily suspended by court rulings. The 
     rule was designed to revise the definition of what is 
     considered a ``water of the United States'' and is subject to 
     Federal regulations under the Clean Water Act.
       But instead of adding clarity, IFBF and others contend the 
     rule has only added ambiguity, leaving farmers, like Duarte, 
     facing the potential of delays, red tape and steep fines as 
     they complete normal farm operations, such as fertilizing, 
     applying crop protection chemicals or moving dirt to build 
     conservation structures.
       Another problem, Duarte said, is that the agencies are 
     piling the WOTUS law with other laws, such as the Endangered 
     Species Act, to dictate how farmers use their own land or to 
     keep them from farming it at all.
       ``They aren't just trying to micromanage farmers. They're 
     trying to stop farmers,'' Duarte said. ``They're trying to 
     turn our farmland into habitat preservation. They are simply 
     trying to chase us off of our land.''
       Duarte, who operates a successful nursery that raises 
     grapevines and rootstock for nut trees, was first contacted 
     by the Corps of Engineers in late 2012. In early 2013, the 
     Corps sent a cease-and-desist letter to Duarte, ordering 
     suspension of farming operations based on alleged violations 
     of the CWA.
       The Corps did not notify the farmer of the allegations 
     prior to issuing the letter or provide Duarte any opportunity 
     to comment on the allegations.
       The agency, Duarte said, wrongly accused him of deep 
     ripping the soil and destroying the wetlands in the field. 
     However, he had only had the field chisel plowed and was 
     careful to avoid the depressions or vernal pools.
       It's also important to note, Duarte said, that plowing is 
     specifically allowed under the CWA. Congress specially added 
     that provision to keep farmers from having to go through an 
     onerous permitting process for doing fieldwork, he said.
       Deciding to Fight.

  That is a headline.

       Instead of capitulating to the Corps, Duarte decided to 
     fight the case in court.
       His lawsuit was met by a countersuit from the U.S. Justice 
     Department, seeking millions of dollars in penalties. The 
     case is expected to go to trial in March.

  Meaning March right around the corner.

       The case, Duarte said, has raised some absurd charges by 
     the agencies. At one point, the government experts claimed 
     that the bottom of the plowed furrows were still wetlands, 
     but the ridges of the furrow had been converted to upland, he 
     said.
       In another, an agency official claimed that Duarte had no 
     right to work the land because it had not been continuously 
     planted to wheat.
       However, he said, the previous owner had stopped planting 
     wheat because the prices were low.
       ``They said it was only exempt if it was part of an ongoing 
     operation,'' Duarte said. ``There is no law that says farmers 
     have to keep growing crop if there is a glut and prices are 
     in the tank. But by the Corps thinking, if you don't plant 
     wheat when it is unprofitable, you lose your right to ever 
     grow it again.''
       Duarte also noted that when federal inspectors came out to 
     his farm, they used a backhoe to dig deep pits in the 
     wetlands. ``If you do that, you can break through the 
     impervious layer and damage the wetland, but it does not seem 
     to be a problem if you are a government regulator.''
       To date, his family has spent some $900,000 in legal fees.

  Let me say something parenthetically here. If we had to spend 
$900,000 in legal fees, the Grassleys might as well get out of farming. 
Now I want to go back to quoting, so I am going to start that paragraph 
over.

       To date, his family has spent some $900,000 in legal fees. 
     That is separate from the work by the Pacific Legal 
     Foundation, which represents the clients it takes for free 
     and is supported by foundations.
       It would have been easier, and cheaper, to comply with the 
     wishes of federal agencies and given up use of the land. Many 
     California farmers who found themselves in a similar 
     situation have done just that, Duarte said.

  Another two-word headline:

       Banding together.
       However, it's important to stand and fight the agencies' 
     attempt to bend the CWA, Endangered Species Act and other 
     laws to take control of private lands. And it's important for 
     farmers to band together with Farm Bureau and other groups 
     that oppose the WOTUS rule.
       ``We are not against the Clean Water Act or the Endangered 
     Species Act as they were intended,'' Duarte said. ``But this 
     is not how those acts are supposed to be enforced. We are 
     getting entangled in regulation, and the noose seems to be 
     tighter every year.''

  I said that I would comment after I read that. For people who may be 
just listening, I just read an article that ran on the front page of 
the Iowa Farm Bureau Spokesman. The problems illustrated by this 
article are all occurring under current law with regard to farmers 
wanting to make a living by planting wheat in their fields. In the case 
of Mr. Duarte, government regulations from the EPA and the Corps of 
Engineers are making his life miserable with the threats of millions of 
dollars of fines.
  As the article stated, regulators at one point tried to claim that 
``the bottom of the plowed furious were still wetlands, but the ridges 
of the furrow had been converted to upland.'' That is ridiculous. The 
EPA is out of control.
  You might remember the fugitive dust rule of a few years ago. I don't 
think now they are trying to push it, but the EPA was going to rule 
that you had--when you are a farming operation, you have to keep the 
dust within your property lines. So I tried to explain to the EPA 
Director: Do you know that only God determines when the wind blows? 
When you are a farmer and your soybeans are at 13 percent moisture, you 
have about 2 or 3 days to save the whole crop and get it harvested.
  The farmer does not control the wind. The farmer does not control 
when the beans are dry, ready for harvest. When you combine soybeans, 
you

[[Page S1020]]

have dust. There is no way you can keep that dust within your 
boundaries. But as Washington is an island surrounded by reality, you 
can see the fugitive dust rule does not meet a commonsense test, and 
you can see that what they are trying to do to Duarte does not reach a 
commonsense test.
  Again, referring to the newspaper article I just read, if the EPA and 
the Corps of Engineers are going around to farmers' fields making 
determinations about wetlands based on tillage practices under current 
law, imagine what they might do if this new waters of the United States 
rule goes into effect--now being held up by the courts.
  Just think how you would feel if your family farm had survived for 
decades, overcoming droughts, overcoming flooding, overcoming price 
declines--and you can name 10 other things that a farmer has no control 
over--and then you have to put up with this nonsense. However, one day 
a government regulator could show up at your farm and hit you with 
excessive fines, and the next thing you know, your family farm is being 
auctioned off. That may sound absurd, but that is the reality of 
threats posed by the EPA. Mr. Duarte's case is the proof.
  We have no shortage of assurances from the EPA Administrator that the 
plain language in the WOTUS rule will not be interpreted in a way that 
interferes with farmers. It is hard to take some assurances seriously 
when they are interpreting current law in such an aggressive way.
  We have to stop the WOTUS rule so the bureaucrats don't become even 
more powerful. The WOTUS rule is too vague and allows way too much room 
for regulators to make their own interpretations about jurisdiction. So 
we should all continue to fight against the WOTUS rule and all other 
actions the EPA is taking that are ridiculous actions against farmers.
  We have checks and balances in government. The Congress tried three 
times to stop the WOTUS rule. Senator Barrasso tried to pass 
legislation taking away the authority or modifying the authority. That 
got about 57 votes but not 60 votes, so that could not move forward. 
The junior Senator from Iowa, my friend Senator Ernst, got a 
congressional veto through, a resolution of disapproval, with 52 votes. 
It went to the President. He vetoed it. So we did not override it that 
way. Then, of course, we tried an amendment on the appropriations bill, 
but we could not get that into the appropriations bill before 
Christmas. So we have tried three things. But thank God the courts have 
held up WOTUS through the Sixth Circuit Court of Appeals. So 
temporarily, at least, waters of the United States can't move ahead.
  This brings back something that is very current right now: Why should 
we be concerned about who the next person on the Supreme Court is going 
to be? Because we have a President who said: I have a pen and a phone, 
and if Congress won't act, I will.
  This sort of executive action by the EPA and the Corps of Engineers 
is kind of an example of the WOTUS rules, kind of an example of what we 
get out of this President. The President packed the DC Circuit Court of 
Appeals, which reviews these regulations, so they are going to have a 
friendly judge who says that whatever these bureaucrats do that may 
even be illegal or unconstitutional, they can get away with it.
  Then, if that goes to the Supreme Court--we had an example just 
recently, about 1 week or so before Scalia died--a 5-to-4 ruling 
holding up some other ridiculous EPA rules.
  Everybody wonders why everyone around here is saying they are 
concerned about who is going to be on the Supreme Court. It's because 
of these 5-to-4 decisions. We're concerned about the role of the 
Supreme Court in our constitutional system. The American people deserve 
to have their voices heard before the Court becomes drastically more 
liberal. I bet the Presiding Officer has people come to his town 
meetings, as I do, and say: Why don't you impeach those Justices, 
because they are making law, instead of interpreting law as the 
Constitution requires?'' Well, you can't impeach a Justice for that. 
But this does raise something very basic: What is the role of the 
Supreme Court in our constitutional system? It hasn't been debated in 
Presidential elections for I don't know how long. There is a chance for 
this to be debated in the Presidential election and maybe lay out very 
clearly where Hillary Clinton or Bernie Sanders is coming from on one 
hand, or where our Republican nominee, whoever that is going to be, is 
coming from and what type of people they are going to put on the Court.
  I have about 30 seconds, and I will be done.
  We are presented with an opportunity, here. The American people have 
an opportunity to debate about the proper role for a Supreme Court 
Justice. The American people can decide whether they want another 
Justice who just decides cases based on what they feel in their 
``heart,'' and who buys into this notion of a ``living Constitution,'' 
or whether they want a man or woman who believes the text means what it 
says on the Supreme Court.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Rounds). The Senator from Pennsylvania.

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