[Congressional Record Volume 162, Number 178 (Friday, December 9, 2016)]
[Senate]
[Pages S6995-S6998]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
GEORGE P. KAZEN FEDERAL BUILDING AND UNITED STATES COURTHOUSE
The PRESIDING OFFICER. The Senate will resume consideration of the
House message to accompany S. 612, which the clerk will report.
The legislative clerk read as follows:
House message to accompany S. 612, a bill to designate the
Federal building and United States courthouse located at 1300
Victoria Street in Laredo, Texas, as the ``George P. Kazen
Federal Building and United States Courthouse.''
Pending:
McConnell motion to concur in the amendment of the House to
the bill.
McConnell motion to concur in the amendment of the House to
the bill, with McConnell amendment No. 5144, to change the
enactment date.
McConnell amendment No. 5145 (to amendment No. 5144), of a
perfecting nature.
McConnell motion to refer the message of the House on the
bill to the Committee on Environment and Public Works, with
instructions, McConnell amendment No. 5146, to change the
enactment date.
McConnell amendment No. 5147 (the instructions (amendment
No. 5146) of the motion to refer), of a perfecting nature.
McConnell amendment No. 5148 (to amendment No. 5147), of a
perfecting nature.
The PRESIDING OFFICER. The Senator from California.
Mrs. BOXER. Madam President, I want to say to my friends, this is my
last moment on the floor of the U.S. Senate. I already gave my
farewell, and I thought that was the end of it. I find myself
filibustering my own bill, which is really a bizarre way to end my
career here. As I said, I always came in defending the environment, and
I guess I will go out the door in the same way. I feel that this is
something I have to do.
The Water Resources Development Act is a beautiful bill. We are going
to be voting on it. But, very sadly, at the last minute, a midnight
rider was added in the House by Kevin McCarthy, which essentially,
according to every fishing group in my State--and I mean every single
fishing group and every single fishing group on the west coast, and
that covers Oregon, Washington, California--is a major threat to their
livelihood, to their future.
As everybody talks about the message of this election being the
protection of hard-working people, here we have a rider that is slipped
in. No one even saw it but 2 hours before, and it turns out that the
water the fishermen need to have a thriving business is going to be
diverted away from them and done in such a way that it goes against the
Endangered Species Act.
You will hear people stand up and say: No, it is not true. There is a
savings clause; we say no way. The fact is, when you dictate what kind
of operations you are going to have in terms of moving water and you
say you shall move this water and the other side has to prove it is
dangerous, everybody knows where this is going. Everybody knows it is
going to be impossible to save the salmon.
Here we have the salmon fisheries on the west coast up in arms. Here
we have a rider that doesn't even belong in the Environment and Public
Works Committee. It should have been discussed with the Energy
Committee. It is out of order.
The question is, Are we going to vote for a beautiful bill? I just
said today that I got more things in here for California than I
probably should even talk about because I got so much. There are 26
different provisions for my State, from Lake Tahoe to the Salton Sea,
[[Page S6996]]
from the L.A. River to the Sacramento Flood Control, to Orange County,
to the Inland Empire.
The entire State benefits from this bill, and here I stand saying to
vote no, but it is because I think we have no right to put this kind of
language in at the last minute and destroy an entire industry. It is
not right.
In addition, this particular rider takes away the right of Congress
to authorize dams in all of the Western States. So, people, understand
what this does. Kevin McCarthy, I guess, doesn't trust the Members of
Congress to authorize new dams and says the President--whoever it is
because this bill lasts 5 years--can determine where to put a dam. I
don't get it. Don't we trust each other to hold hearings and decide
these issues?
This is what the rider does; it is devastating to the fishery. Every
environmental group that I know of is strongly against it. This vote is
being rated by the League of Conservation Voters, and there are chills
running up and down the spine of the fishing industry. I have never
seen so many editorials against any rider. They have asked me: Please,
please bring this down.
I am not naive, and I know votes. I know how cynical this whole thing
is. Here we have a rider that does not belong on this bill. The
jurisdiction was the Energy Committee. They weren't consulted. This
rider never had a hearing, never saw the light of day, and was stuck on
a bill that I have worked on for about 2 years. It is a beautiful bill,
a terrible rider.
For me to stand here, in the last breath as a Senator--not in life, I
feel very strong, but as a Senator--to say to people that I worked so
hard on this bill with Senator Inhofe, it is a beautiful bill; vote no
on cloture. It is almost like an out-of-body experience for me, but
still, I am asking you to do that.
What is going to happen next year? What are they going to hold
hostage next year? The people of Flint? No one worked harder for the
people of Flint than Maria Cantwell and Barbara Boxer. We held up our
bills until they were taken care of.
We have a beautiful WRDA bill. It is not perfect, I admit it, but it
is excellent. It will create a lot of jobs, and it will make sure that
our water infrastructure is up to date. It has ecosystem restoration.
By the way, it has a lot of drought-related, important authorizations
for desalination, water recharging, water recycling, high technology to
bring more water to really take care of the drought. It has it in the
base bill. All of that is in the base bill.
And in the dead of night comes a midnight rider, and there it sits.
It is wrong. It is absolutely wrong.
It is very late. We are all very tired. I am very grateful that Maria
Cantwell and I, Jeff Merkley and Ron Wyden were able to have some time
earlier in the day to present the facts, but we wanted to go over it
one more time. I know Senator Cantwell has laryngitis and is struggling
with her voice, but at this time I would like to yield to her as much
time as she might consume.
The PRESIDING OFFICER. The Senator from Washington.
Ms. CANTWELL. Madam President, as my colleague said, I definitely
have a voice challenge so I am not going to speak long. I do want to
join my colleague in urging Members of the Senate to vote no on this
legislation.
As she just described, it is a bill that has some great attributes,
but it has one major fatal flaw, and that fatal flaw is that the U.S.
Senate is being asked tonight to negotiate and decide a water
settlement for the State of California that has been fought over,
litigated, and is still in discussion of how to resolve it in a
balanced way among all of the interests, not just in California but in
the region. Oh, no, because someone has a mighty pen and can in the
House of Representatives drop an earmark of over half a billion dollars
into a bill as a poison pill--I think the newspapers had it right: Stop
the midnight rider. How ironic that it is almost midnight, and we are
going to be voting on such legislation.
My colleagues who bring us decided-upon water agreements that have
been worked out and want us to bless them so that the agencies can fund
them--I have no problems with that. We have tried to move similar
legislation in regular order, but this is usurping the individuals who
are trying to balance water and fish and river rights and community
issues and regional issues and saying that we are going to kill fish as
a way to balance the water and drought of the future. If we are going
to decide to kill fish tonight for California, for Delta almond
growers, are you going to show up tomorrow and say let's kill northwest
salmon because someone else in California wants our water? I can tell
you the answer to that is hell no; we are not going to let you attack
northwest salmon for California water. It is not going to happen.
To our colleagues who are facing the same issue in Arizona, which
didn't get a fair hearing, or our colleagues from Florida, Alabama, or
in a dispute with Georgia, tonight is about whether you are going to
say we are going to have collaborative stewardship to solve our water
issues or whether we are going to let the interest of political groups
come and lobby here and have us decide based on poison pill riders.
Our colleagues over here are frustrated that the other side of the
aisle would never live up to a Flint agreement, and the consequence is
they are cynical enough to put Flint in this bill as a way to get votes
for something they know they should not bring to the floor of the U.S.
Senate. And to boot, they think the only bill I could come up with to
get this deal passed is one in which individual Members have individual
projects that are important to clean water in their States, and that is
how they are going to get this poison pill rider passed.
It is no surprise that within 24 hours of this passing the House, the
L.A. Times editorialized it as a bad deal. The San Jose Mercury News
calls it a sellout. The San Francisco Chronicle says stop the rider. Do
not think for 1 second that people are not watching because they are
watching. The unfortunate situation for everyone involved who wants
water is this. You are going to get litigation. You are going to get
litigation because you cannot do water deals this way.
For the San Joaquin, which argued and litigated for 18 years and then
came to the table, this is the same situation. You are not going to get
water for your growers, you are going to get litigation. As a country
that has already spent billions of dollars dealing with drought--and I
have news for you, we are going to be spending more because the climate
is going to continue to change. This is an issue whose day has come to
the United States Senate. It is not going to go away.
We can deal with it in regular order, we can deal with it without
jamming people with earmarks, and we can deal with it without giving
away a sweetheart deal to the builders of dams. Oh, yes. I forgot to
mention, the bill authorizes dams to be built in 17 States without any
further action by us as a body. I hope you don't have a river in your
State where you would like to see the wild and scenic nature of it or
go trout fishing because it may not be there if it is all dammed up due
to this legislation.
I hope our colleagues realize the way to solve our drought problems
is to work together in a fair and open manner, a manner in which
everyone can see the transparency and not the dark of night at midnight
right before we adjourn for the rest of the year. We will not solve
these problems nor will we provide the collaborative stewardship this
issue needs. Instead, we are going to put a cynical stamp of a
political gamesmanship on an issue that is important to every community
in the West.
I thank the Presiding Officer and the Senator from California.
The PRESIDING OFFICER. The Senator from California.
Mrs. BOXER. Madam President, how much time do we have remaining on
our inside?
The PRESIDING OFFICER. There is 45 minutes.
Mrs. BOXER. Madam President, I call on Senator Merkley for as much
time as he wishes.
Before Maria Cantwell leaves the floor, who is suffering mightily
from laryngitis, I have another editorial hot off the press from the
Los Angeles Times: ``A water deal that's bad for California's
environment.'' I can't tell you how proud this makes me because this
means, essentially, every major paper in my State that has really
[[Page S6997]]
stayed out of this is going in. This is a very long editorial. I will
save my comments on it until later.
Madam President, I ask unanimous consent to have the Los Angeles
Times editorial printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[Dec. 9, 2016]
A Water Deal That's Bad for California's Environment
(By the LA Times Editorial Board)
There is much for Southern Californians to like in
departing U.S. Sen. Barbara Boxer's final bill--to authorize
federal water projects--including funding to restore the Los
Angeles River and to pay for various water storage and
groundwater efforts.
And then there are the provisions Boxer's colleague and
fellow California Democrat, Sen. Dianne Feinstein, negotiated
with Republicans and their supporters in San Joaquin Valley's
agriculture industry to squeeze more usable water from the
Sacramento-San Joaquin River Delta for farmers in drought
years.
At issue in the delta and the rivers that feed it are the
rules that govern when and how much water can be diverted for
farms and homes instead of being allow to keep flowing
through rivers and into the delta to protect endangered
salmon.
California's two senators have long approached water issues
from different angles but generally managed to agree. Not
this time. When Feinstein and Republicans inserted their
provisions in Boxer's bill late last week, Boxer threatened
to scuttle the whole package. She said the delta provisions
would undermine the Endangered Species Act and could
irreparably damage the state's salmon and the thousands of
jobs that depend on the Pacific salmon fishery, not just off
California's coast, but off Oregon's and Washington's as
well.
Environmentalists have balked at the Feinstein proposal,
just as they opposed a drought bill she proposed earlier this
year. That measure also was aimed at making delta rules more
flexible to keep water flowing to farms during periods in
which it arguably wasn't needed for fish. Notwithstanding the
concerns, that bill was a prudent compromise and might have
been acceptable had it been an end-point--part of a grand
bargain between the various factions to end the long-running
California water wars.
So the question now is whether the new provisions that
Feinstein has brokered with Republicans are appreciably
different from her earlier version, or whether circumstances
have changed enough to warrant endangering the entire bill
and all the funding it allocates to badly needed water
projects.
Circumstances certainly changed with the election of Donald
Trump and the climate-change-denying, environmentally
challenged cabinet members he is considering or has already
appointed. Although the bill's rules governing when delta
pumps can operate and how water must be managed are technical
and subject to interpretation, they grant Trump's secretaries
of Commerce and Interior an important role in determining
when to divert less and leave more for endangered fish and
the environment. That sort of discretion might have been
tolerable if entrusted to cabinet members of an
environmentally responsible administration, but it must be
seen in a different light with a White House with a decidedly
different approach to the environment.
An internal memo from the current White House also notes
that since Feinstein's earlier bill, populations of
endangered salmon and smelt have significantly declined. Even
the current program of scientific findings may be
insufficient to protect the fish as required under the
Endangered Species Act.
The regrettable conclusion must be that the so-called
drought provisions are unacceptable. The proposed drought-
year legislation would appear to be directly at odds with
current, laudable efforts by the State Water Resources
Control Board to ensure the presence of enough water in the
lower San Joaquin River--close to the delta pumps--to sustain
migrating salmon, which are not merely another fish but
integral to California's ecology, culture and history.
All that aside, Feinstein's effort to add some flexibility
to delta rules to provide more water for farms and urban
areas in times of drought--despite serious concerns that they
could weaken species protection--might still be worth the
risk if they were part of a final compact between
environmental and agricultural interests on delta water.
But there is still no final compact, no grand bargain, and
in fact the recent election has only emboldened Republicans
who are targeting the Endangered Species Act. House Majority
Leader Kevin McCarthy of Bakersfield and other members of
Congress who represent the San Joaquin Valley have made it
clear that they intend to press further to divert more
Sacramento and San Joaquin river water to agricultural use
rather than letting it flow into the sea to sustain the
state's increasingly fragile environment. The drought
language, negotiated in private and inserted into Boxer's
bill at close to the last minute, would embolden them further
if adopted. Let's hope that Kamala Harris, Boxer's successor,
has been paying attention and is prepared to stand up for
California's increasingly fragile environment.
Mrs. BOXER. Madam President, I yield such time as he may consume to
Senator Merkley.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. MERKLEY. Madam President, what is at issue here? The core issue
is whether we raid the waters of Northern California to provide
additional water to the farmers of the Central Valley and in so doing
whether we wipe out the salmon which provides jobs for 20,000
fishermen. It is a powerful piece of our economy, a piece of our
history, and a piece of our soul. That is what is at issue here--
whether we drain these rivers.
It has been said there is nothing in this bill that changes how the
biological opinions will be applied or the Endangered Species Act will
be applied, and that simply is not the case. I will walk you through
the three core provisions that are in this bill.
The first is section 4001. What it does is set up a pilot project,
and that pilot project allows circumvention to biological opinions to
open up the delta cross-channel gates. What does that mean? It means
when the salmon are returning from the ocean to spawn, these gates are
kept closed so the salmon do spawn and continue the cycle of life and
productivity, but instead this says no and this pilot project will open
the gates and then the salmon get diverted from going up the river.
They don't spawn, it doesn't continue, and then it says, we will go
ahead and study the impact on the salmon. That is measure No. 1 that
bypasses the Endangered Species Act.
The second provision, 4002, says the Bill Jones and Harvey Banks
Southern Delta Pumping Plants must operate at the very highest level of
the spectrum of the biological opinion. The way these biological
opinions work is they say we need to operate somewhere between here and
here, and then as the scientists observe what is going on, the amount
is adjusted. What this section says is, no, we are not going to operate
the normal way, we are going to insist in this bill that you must
operate at the highest level, disregarding the scientific information
on the impact on the salmon and on the smelt. That is provision No. 2.
Then they get to the one that is really the biggest shocker, 4003. This
says the Secretary of Interior and the Secretary of Commerce, through
an operations plan, may operate at levels--get this--that result in the
Old and Middle River flows more negative than the most negative reverse
flow prescribed by biological opinion.
Have you ever heard of negative river flow? What does that mean? It
means water doesn't flow downstream. It means so much water is drained
that the remaining water in the river kind of flows upstream at the
point it is being diverted. This says that in the range that is allowed
by the biological opinion, the Secretary of Commerce or Interior can
take even more, way outside the ban authorized by biological opinion.
Mrs. BOXER. The Senate is not in order. I can't hear.
The PRESIDING OFFICER. The Senate will be in order.
Mr. MERKLEY. This is clearly a provision that goes completely against
the normal framework of a biological opinion, and, indeed, that is not
the whole part of 4003. It goes on to say that this section shall not
affect the biological opinion unless the Secretary of Commerce finds
such applicable requirements may be adjusted. It basically says the
Secretary of Commerce can violate the biological opinion. How clear can
that get? Then it continues even further, and it says: Water transfers
exclusively through the State water project are not required to be
consistent with section (a)(1)(H) of the Central Valley Project
Improvement Act.
Well, of course you are wondering what that part of the act is, and
that part of the act is one that says you can't violate the fish and
wildlife obligations in the process of pumping water. OK. That is wiped
out by this. Clearly, case after case after case, this bill is a raid
on the water of Northern California to basically pump it through in
violation of biological opinions and in violation of the Endangered
Species Act, and it is an assault on 20,000 fishermen and fisherwomen.
That is what is wrong with this airdropped provision that never went
through the committee in the Senate, and it didn't get
[[Page S6998]]
to the floor of the Senate. We didn't have it offered as an amendment
on the floor and have a vote and debate on this floor. It didn't go
through the House. It wasn't debated there. It was airdropped in on a
conference committee.
Water is a precious resource, and this pits the salmon industry
against the Central Valley farmers and says we are ruling for one over
the other by violating the biological opinions necessary for the salmon
and the smelt to survive. That is just wrong.
It says something else. It says the power of this body to authorize
dams is being wiped out because no authorization is needed anymore by
this body. Now, a colleague came to the floor and said, well, not
really because the Senate would still have to provide some funds in an
appropriations bill, but we all know how appropriation bills work. They
are massive. They come out of conference at the last second. There are
little things tucked in there. Taking away the process of an
authorization debate on the merits of a dam nullifies the role of this
body in implementing smart decisions about whether dams make sense or
don't make sense under a particular set of conditions. Some make sense,
some don't, and that is why we come through and we have an authorizing
discussion. This guts that.
This is a terrible precedent for legislation that will come in the
future, and it is terrible at this moment for the damage to the water
in these upper rivers that actually flow backward and is authorized by
this bill. It is a terrible provision for the salmon that 20,000
fishermen and fisherwomen depend on, and it is a terrible precedent for
every other ecological discussion. That is why every major newspaper in
California has written an editorial saying: Don't do this. Don't do
this, says the Mercury News editorial board. They proceed to say it
``would gut environmental protections and have devastating long-term
effects on the Sacramento-San Joaquin Delta's ecosystem.'' It says this
last-minute, closed-door provision ``allows maximum pumping of water
from the Delta to the Central Valley and eliminates important
congressional oversight over building dams . . . dramatically roll back
the Endangered Species Act . . . perhaps paving the way for its repeal
. . . or gutting.'' It says: ``We're not sure whether the Republican
sweep in November means Americans no longer care about clean air and
water, but we're about to find out. In the interim, the Senate and if
necessary president need to protect the Delta. . . . `'
That is what the Mercury said.
The Los Angeles Times editorial says: ``A water deal that's bad for
California's environment,'' and it goes on. It says: ``The regrettable
conclusion must be that the so-called drought provisions are
unacceptable.'' It notes that ``the proposed drought-year legislation
would appear to be directly at odds with current, laudable efforts by
the State Water Resources Control Board to ensure the presence of
enough water in the lower San Joaquin River--close to the delta pumps--
to sustain migrating salmon, which are not merely another fish but
integral to California's ecology, culture, and history'' and certainly
to Oregon's ecology, culture, and history.
We have the San Francisco Chronicle, which is simply entitled: ``Stop
. . . water-bill rider.'' It proceeds to conclude, after a couple of
extensive analyses, it says:
Drought and warming temperatures . . . are tipping off mass
extinction of the species in the San Francisco Bay and its
estuary. We have to work to share water among people, farms
and the environment of California--not try to benefit one
interest with a midnight rider.
Here we are 15 minutes from midnight. Multiple provisions raid the
water, changing the status quo that has been carefully worked out with
biological opinions. Multiple newspapers say it is just wrong so let's
take a moment and say let's cut this provision out of this bill.
Let's put this bill on hold until it is gotten rid of because it is
wrong to have an airdropped provision on a challenge of maintaining a
viable salmon industry debated on a midnight rider.
The PRESIDING OFFICER. The Senator from California.
Mrs. BOXER. Madam President, I want to thank the Senator from Oregon
very much. He gets it. We are united on this. We hope our colleagues
hear our plea that if we can get rid of this rider, we will have a
magnificent bill that was worked on by so many: my friend Jim Inhofe,
myself, Senator Merkley in the committee, Senator Fischer--a beautiful
bill. Why? Because we worked together. The bill had hearings, saw the
light of day. Then literally, literally at the last second, a special
interest rider was added. I know this was not the work of the Senate. I
love my colleagues here. They did not want this done. It was done. Once
it was done, we have to make a decision.
You know, before I yield to Ron Wyden, what I want to say is, if you
ask people on the street ``Why do you give Congress such low marks?''
people don't like us here. I personally think this is a noble
profession. I am so blessed to have a chance to make life better for
people. All of us feel that way. But why don't people really appreciate
our work? One of the reasons is they put unrelated matters on at the
last second, as Maria Cantwell said, simply because they can.
This is a bill which is so wonderful for the country. Now they make
it so controversial and so difficult for Members to choose. Look at my
situation. I have 26 provisions in here for my State. It is magnificent
for my people. But yet and still, this rider threatens the entire
fishing industry of my State and thousands of jobs all up and down the
west coast.
For people like my friends from Michigan--they know how hard I
worked. They know how hard Maria Cantwell worked to fix the problem in
Flint, to replace those pipes. Yet it is in this bill. So it makes it
even more cynical that such a thing was added at the end and force
people to choose between helping the people of Flint and preserving the
tens of thousand of fisherman jobs. This is not right. This is
ridiculous and not necessary.
If Mr. McCarthy is so powerful, why does he just not introduce the
bill as freestanding legislation next year and let it go? But, no, it
had to be done on this bill. Why? Because he could do it. I tell you,
if he reads the newspaper articles and op-eds that are in every paper
in my State, from Republican areas, from Democratic areas, he is not
that well thought of for this. It was a big mistake.
At this time, I want to yield to my colleague and friend, who, with
Senator Merkley, has been an outstanding voice protecting the fishing
industry in his State and the beauty of his State, Ron Wyden.
Mr. WYDEN. I thank my colleague. I would be happy to yield to our
colleague from Oklahoma.
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