[Congressional Record (Bound Edition), Volume 160 (2014), Part 8]
[Senate]
[Pages 10850-10852]
[From the U.S. Government Publishing Office, www.gpo.gov]




                      WATERS OF THE UNITED STATES

  Mr. CARDIN. I was listening to my colleagues on the other side of the 
aisle talk about the proposed rule for the waters of the United States, 
and I am somewhat curious as to where they get a lot of their 
information because if they read the proposed rule--and I point out 
that this is a proposed rule--it specifically excludes from waters of 
the United States certain ditches, wastewater treatment plants, ponds, 
et cetera. I am going to get into the specifics. But if you listen to 
their points on the floor, you would think all ditches are covered 
under the proposed rule--which is now subject to comment--and that is 
not the case.
  I would urge those who are interested to please read the proposed 
rule and determine for yourself the fact that it does not include many 
of the examples given by the opponents in clarifying the waters of the 
United States.
  Last week I had a roundtable discussion with a group of scientists 
and concerned citizens dealing with the progress we have made in the 
Chesapeake Bay. The Chesapeake Bay is critically important--not to just 
those who live in the watershed; it is the largest estuary in our 
hemisphere. There is more coastline on the Chesapeake Bay than on the 
entire west coast of the United States. It is a national treasure and 
has been declared that by many Presidents. It is iconic to Maryland and 
supports a diversity of aquatic life which is important to our lives 
and to our economy. Mr. President, $1 trillion of our economy is based 
on the Chesapeake Bay.
  Starting in the 1980s, we recognized that we had a responsibility to 
do what we could to preserve and clean up the quality of the water 
within the Chesapeake Bay. Starting with Maryland, Pennsylvania, 
Virginia, and now expanding to Delaware, West Virginia, New York, the 
District of Columbia, and the Federal Government, we have a Chesapeake 
Bay agreement. The most recent, the fourth one, was recently signed. It 
recognizes that we have a real challenge to deal with the quality of 
the water in the bay.
  We have asked our farmers to do more, and we have provided help to 
them in the farm bill for conservation practices. We have asked 
developers to do more by preserving more pervious surfaces and dealing 
with the loss of acreage of forest land. We have asked local 
governments to do more as far as dealing with wastewater treatment 
facility commitments. We have had a partnership between the government 
and private sectors. All stakeholders are involved because we believe 
we all have responsibilities. We are not asking one segment to do it 
alone. All of us are working together.
  But, quite frankly, the regulation of the waters of the United States 
directly affects the success we are going to have in cleaning the 
Chesapeake Bay. So the issue we are talking about with the waters of 
the United States and clarifying that has a direct impact.
  I might also tell you that climate change has a direct impact. Those 
of us who live in the watershed area, yes, we can do our responsibility 
for reducing our carbon footprint, but we need to get our country 
engaged in reducing our carbon footprint. We need to do that for many 
reasons--we need to do that for public health; we need to do that for 
national security.
  Let me remind my colleagues that the Naval Academy, the Aberdeen 
Proving Ground, Pax River--all critically important to our national 
defense--are located on our coasts in Maryland and are subjected now to 
more flooding as a result of sea level increases which, in part, are 
the result of our activities with climate change. All we ask is that we 
follow the science.
  Let me talk for a moment about waters of the United States because I 
heard what my colleague said. I have to take us back to 2001 when the 
Supreme Court issued two decisions concerning the navigable waters and 
the waters of the United States and added confusion. What this 
administration is trying to do, what we are trying to do is restore the 
authority that we all thought was in the law before the two Supreme 
Court decisions. That is all we are doing--trying to go back to what 
everyone understood were the regulations of the waters of the United 
States because the freshwater supply coming into the Chesapeake Bay is 
critically important to the health of the Chesapeake Bay. So if water 
goes into the streams, it goes into the bay, and that is of concern to 
us, and that needs to be regulated under the Clean Water Act.
  I will quote from the preamble of the proposed regulation that has 
been submitted. The preamble says:

       The SWANCC and Rapanos decisions resulted in the agencies 
     evaluating the jurisdiction of waters on a case-specific 
     basis far more frequently than is best for clear and 
     efficient implementation of the CWA. This approach results in 
     confusion and uncertainty to the regulated public and results 
     in significant resources being allocated to these 
     determinations by federal and state regulators.

  That is why we had this proposed rule--to clarify the law that gives 
certainty. How many times have I heard from my constituents: Let us 
know what the rules are so that we can do our business. That is exactly 
what this proposed rule is all about.
  The National Farmers Union issued this statement:

       NFU has long advocated for increased certainty surrounding 
     Clean Water Act requirements for family farmers and ranchers 
     in the wake of complicating Supreme Court decisions. Today's 
     draft rule clarifies Clean Water Act jurisdiction, maintains 
     existing agricultural exemptions and adds new exemptions, and 
     encourages enrollment in U.S. Department of Agriculture 
     conservation programs.

  That is their quote. The reason that is--there are 56 conservation 
practices that are specifically exempt from this regulation, so if 
farmers are participating in these conservation practices, they don't 
have to worry about the issues to which some of my colleagues referred.
  Let me quote from the proposed regulation itself. The regulation says 
that the following are not waters of the United States: waste treatment 
systems, including treatment ponds or lagoons; prior converted 
cropland; ditches that are excavated, and it gives certain conditions; 
ditches that do not contribute flow, either directly or through another 
water, to the waters of the United States, so we have exempted ditches; 
certain artificially irrigated areas are exempted; artificial lakes or 
ponds created by excavating and/or diking dry land; artificial 
reflecting pools or swimming pools created by excavating and/or diking 
dry land; small ornamental waters created by excavating and/or diking 
dry land; water-filled depressions; groundwater, including groundwater 
drained through subsurface drainage systems; and gullies and rills and 
non-wetland swales.
  If you listen to my colleagues, they would tell you that if, as a 
farmer, you have a ditch on your property that is just on your 
property, that you are using for irrigation on your property, it would 
be subject to this regulation. It would not be. It is specifically 
exempt.
  Here is the point.
  Mr. HOEVEN. Would the Senator yield?
  Mr. CARDIN. Let me finish my point.
  Here is the point. This is a proposed regulation. So if you think 
further clarification is needed, there is an extended comment period. 
If you think we need to make further clarifications on issues--what we 
are trying to get at are practices that affect water that will go into 
our streams and rivers and in my case end up in the Chesapeake Bay 
watershed, which in trying to clean up the bay we have to deal with.
  The success of the Chesapeake Bay Program is that all stakeholders 
are involved. We use the best science. We need everyone doing their 
fair share. Therefore, if your activities contribute to water flowing 
into the Chesapeake Bay watershed through our streams and rivers, yes, 
you are regulated under the Clean Water Act. But if you have a self-
contained ditch that is not involved in that and are using it for 
irrigation, absolutely not. If you participate in the conservation 
programs, you don't have to worry about a new set of regulations. That 
is what this does.

[[Page 10851]]

  Our true leader on this has been Senator Whitehouse. I thank him very 
much on the climate change issues, on the environmental issues. He has 
been on the floor every day.
  I want to make sure my colleagues have a chance to express their 
views on this issue. It is critically important.
  I yield for my colleague from Rhode Island.
  Mr. HOEVEN. I would ask, would the Senator yield for a question?
  Mr. WHITEHOUSE. I would be pleased to yield for a question, but let 
me make one point first.
  I think it is not insignificant that each Senator who spoke against 
this proposed regulation hails from a landlocked State. Coastal States 
such as Maryland and Rhode Island have quite a different perspective 
because we have bays--in Senator Cardin's case, the Chesapeake Bay; in 
my case, Narragansett Bay.
  You don't have to look much farther than the Gulf Coast to see an 
example of what happens when landlocked States up the river overload 
flowing waters with chemicals, such as nitrogen and phosphorus, that 
have a beneficial use as fertilizer in those landlocked, upland States, 
but when they run off and come down into smaller tributaries and end up 
in the mighty Mississippi River and stream down through the middle of 
our great country and out into the Gulf of Mexico, they create, 
literally, dead zones in which nothing lives because the water has 
become anaerobic, meaning it does not carry enough oxygen to support 
life. Some of these can be vast dead zones, and very often they result 
in fish kills and crab kills because the species don't have a chance to 
get out of the way. Suddenly, they are strangling, they are suffocating 
in their own waters. That is not something we can overlook.
  I am willing to listen to my colleagues with upland, landlocked 
agricultural States tell me how important it is that they be able to 
load up with fertilizer, grow their crops, and do all of those things. 
I appreciate and understand that point of view. That is not the only 
point of view. There are sister States for which that creates a real 
problem, and it is not fair to come to this conversation and assume 
that we have nothing to say, that our coasts have no stake in these 
decisions, and that there is only one side to this argument; that is, 
how much stuff you can dump out on your agricultural properties. That 
isn't fair, it isn't accurate, it is not scientific, and it is not good 
for our country. I think we need to have a good debate in which the 
coastal States and their imperatives and their perils are also part of 
the equation.
  I yield for Senator Hoeven's question.
  I ask that the time used for Senator Hoeven's question be charged 
against Republican time.
  Mr. HOEVEN. I thank the Senator from Maryland and the Senator from 
Rhode Island for coming to the floor and making exactly the type of 
point I am making.
  Thank you for being here. This is the debate we should have, and it 
should be vigorous, as it is. We should have all Members, whether they 
are from a coastal State or an inland State, and we should debate every 
aspect of this proposed rule. This is important to them. This is 
something that affects American people regardless of what State they 
live in. We should have this debate, and then we should vote on this 
issue.
  Mr. WHITEHOUSE. I yielded to the Senator for a question.
  Mr. HOEVEN. My question to you is, very simply, first, EPA, in order 
to provide exemptions, has to maintain that they have jurisdiction in 
all these areas. That is the very point I am making to the point made 
by the Senator from Maryland. EPA is now deciding where they have 
jurisdiction and where they don't. We are not. And they are doing it 
far beyond the scope of the Supreme Court's rule.
  So my question is, If they can decide where they are going to give 
exemptions, how can you say they are not exerting jurisdiction?
  To the good Senator from Rhode Island, every downstream State can 
allege the issue you made in your earlier point. I understand that. But 
to both of you, my point is, let's have this debate and then let's vote 
on behalf of the American people. Would the Senators agree that is what 
we should be doing in this body?
  Mr. WHITEHOUSE. Reclaiming the floor, let me say that--first, a 
little bit of history as to how we got here because I think that bears 
very much on the Senator's questions. We had quite a clear set of 
regulations under the Clean Water Act. Most everybody understood them. 
There was a standard operating practice that had developed, and into 
that relatively stable situation came these two Supreme Court decisions 
that Senator Cardin referred to, and they cast a constitutional and 
statutory pall over the scope of the EPA's authority for nonnavigable 
waters. But--and the Supreme Court gets to do this if they want--they 
provided very little clarity. So there was vast uncertainty about what 
was going on now in the wake of these decisions.
  So Members of Congress, businesses, agricultural groups, 
environmental groups, and many other stakeholders asked for this 
rulemaking. They asked for this rulemaking so that the administrative 
agency that was going to enforce these provisions could be given the 
first cut at figuring out how they apply. That is what they did in this 
rulemaking. They answered the call that came from Congress, 
agricultural interests, environmental interests, and they came up with 
a proposed rule. The rule preserves and reiterates all of the current 
water exemptions and exclusions that preexisted, and it adds even new 
clarification that excludes certain water features--as Senator Cardin 
pointed out--and excludes them outright.
  This is the clarification that Congress asked for. This is the 
clarification that agricultural and environmental interests asked for. 
And I would submit to my friend Senator Hoeven that if he doesn't like 
this result, he should wait until there is actually a result, 
participate in the administrative process, and let the EPA know what 
his feelings are.
  If they come out with a final rule--this is just a proposed rule--
that he finds intolerable for his landlocked upland agricultural 
interests, then we will have that debate and we will have an actual 
rule to argue about. But while he has an open invitation from EPA that 
says, let me know what your thoughts are and we will consider changing 
our rule, we shouldn't trump that process. They are the experts in this 
type of enforcement. We are going to hand it back to them, anyway, 
because we legislate very broadly.
  So let's let them do the process. Let's let them come up with the 
rule, and then I am ready for this debate all day long. But don't 
forget our coastal States. Don't forget our bays.
  Mr. CARDIN. If the Senator will yield for one moment, I also want 
Senator Hoeven to understand the history.
  Shortly after the Supreme Court decision many of us filed because 
there needed to be clarification. We had urged Congress to do that. But 
it was opposition from the Republicans that prevented us from 
considering that legislation. They blocked us from considering a 
congressional clarification as to the Supreme Court decision, and now 
we are faced with a situation in which the administration is doing what 
it must do; that is, to provide, under its own authority, where it can 
act, clarification that it so desperately needed.
  As Senator Whitehouse has said, what this regulation is about is 
clarifying the confusion by the Supreme Court decision as to what is 
regulated or not. As a result, landowners don't know whether they can 
do this or not. They don't know. That is the worst of all worlds, when 
you don't have certainty as to how you need to act, and that does cause 
speculation that in many cases is not true. But they don't know what 
the rules are.
  So, quite frankly, what the administration rule is patterned after is 
a lot of discussion we had in the Congress of the United States shortly 
after the Supreme Court decision as to trying to

[[Page 10852]]

codify the practice before the Supreme Court decision. There didn't 
seem to be a lot of people upset with the manner in which the EPA was 
regulating the waters of the United States prior to the two Supreme 
Court decisions in 2001. That is what the regulation is aimed at--
getting us to before the point of the Supreme Court decision and where 
Congress was trying to legislate but blocked by Republicans shortly 
after the decision.
  I think Senator Whitehouse is exactly right. What we should be doing 
now if we have concerns is expressing them. First, it might be helpful 
to read the regulation and see what is in it and what is not in it, 
what is regulated and what is not regulated. If there are things in 
here we think are wrong, that is what a comment period is about. Let's 
wait until we get the final regulation and then, yes, we will have a 
debate, I am sure, at that time, which is appropriate, and then we can 
debate exactly what the regulation says.
  Mr. WHITEHOUSE. May I ask the Senator from Maryland to comment on 
another point.
  We are having a conversation right here and right now on the floor 
about a specific EPA regulation. But those of us who are here on the 
floor a lot and those of us who pay attention to these issues can't not 
see this conversation in the context of a larger conversation that is 
taking place in the Senate. That causes me to inquire: When will a 
Republican come to the floor and ever support EPA on anything? When 
will that happen?
  I was just speaking in the House at a hearing, and Representative 
Elijah Cummings, the ranking member of the committee that I was 
testifying before, pointed out that they were coming up on the House 
Republicans' 500th vote attacking the environment in the House. Now, we 
know they have tried to repeal ObamaCare 50-plus times--but 500 
attacking environmental regulations? I can't not see this in that 
larger context of a party that has simply thrown over its proud 
environmental history and just consistently takes the position of the 
polluter almost as a reflex.
  Mr. CARDIN. Senator Whitehouse is exactly right. We were together in 
the hearing in the Environment and Public Works Committee, where we had 
many previous administrators from the Environmental Protection Agency. 
There were those who served under Democratic administrations and 
Republican administrations.
  Mr. WHITEHOUSE. If I remember correctly, we had four from Republican 
administrations.
  Mr. CARDIN. Four from Republican administrations--and as was pointed 
out in the hearing where we were talking about the Clean Air Act, it 
was passed by bipartisan support in Congress and signed into law by 
President Nixon, and it was a proud moment.
  We have done many analyses that show the regulations issued under 
clean water and clean air pay back dividends far in excess of 
compliance costs, such as 40 to 1. There are people who can breathe and 
not have to worry about an asthma attack because we have clean air. 
There are those who don't get sick because of pathogens that may be in 
our drinking water or people getting sick just bathing on our shores. 
We reduced that, and the number of premature deaths we have eliminated.
  The public health benefit of the Clean Water Act and Clean Air Act 
pays back multiple dividends to people of this country, and that is why 
this has never been a partisan issue. Quite frankly, the Chesapeake Bay 
Program--the partnership--has never been a partisan issue in Maryland.
  Some of our strongest benefactors--the people who have caused us to 
have this type of unity--have been Republican leaders in our State, 
along with Democratic leaders. We don't even know the party it ought to 
be. This has been a public calling because we know the seriousness of 
the issue.
  The Environmental Protection Agency has a long history of nonpartisan 
activities in order to protect the public health of the people of this 
country, and it is extremely disappointing that there is no cooperation 
at all.
  Mr. WHITEHOUSE. It is an anomaly. It is a historical anomaly that the 
present-day Republican party finds itself in this position where they 
will only come to the floor to attack and try to discredit the EPA. The 
only time they come to talk about the EPA is to oppose what the EPA is 
doing. They will never come to the floor and admit climate change is 
real and we should do something about it. They will never do that. The 
position that is articulated most frequently on this floor is the 
position that climate change is a hoax. Even young Republicans think 
that idea is preposterous, but that is as far as we get in trying to 
have a conversation on that issue. The other side has just gone dark on 
dealing with climate change. They simply won't discuss it or they send 
out as their champions the people who claim it is not real. That makes 
things a little bit awkward. And always--always--where there are two 
sides of the ledger, they look just at the one side. They look just at 
the polluters' side. They look just at the upland farmers and their 
nitrogen and their phosphorus, and they won't look at what that means 
to our coastal bays and coasts and harbors. They look only at the money 
that a polluter has to spend to clean up their powerplant, and they 
don't look at the savings to the rest of the public from that cleaned-
up powerplant.
  Senator Cardin mentioned the savings from the Clean Air Act and the 
Clean Water Act. I can be specific about the Clean Air Act savings. It 
is $30 in value to all regular American families for every $1 the 
polluters had to spend to clean up their act. So for every $1 spent by 
polluters to clean up their act, it paid $30 in benefit to the American 
public. Yet they will only look at the $1. They never talk about the 
rest. They have blinders on that oblige them only to consider the point 
of view of the polluters. I never hear anything else.
  I urge and I challenge my colleagues to get out of that trap. The 
American people are not with you on this. You are wrong on the science. 
This general attack on the environment at this stage in our history 
will stain the party's brand if it is not corrected. They have got to 
come back and join the debate on a platform of fact and in a context of 
willingness to look at both sides of the ledger.
  Madam President, I see colleagues on the floor who I am sure seek 
time, so I will yield the floor.
  The PRESIDING OFFICER (Ms. Baldwin). Senator from Virginia.

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