[Congressional Record (Bound Edition), Volume 161 (2015), Part 6]
[Senate]
[Pages 8401-8402]
[From the U.S. Government Publishing Office, www.gpo.gov]




                  FEDERAL WATER QUALITY PROTECTION ACT

  Mr. BARRASSO. Mr. President, last week, our Nation observed Memorial 
Day. We paid tribute to the sacrifices so many Americans have made to 
preserve our freedom. Also, last week, while Members were back home, 
the Obama administration snuck out a new rule that takes away freedom 
from Americans all across the country.
  The Environmental Protection Agency released the final version of a 
new rule that will dramatically increase the agency's power and will 
devastate Americans' ability to use their own property and their own 
water. With this rule, President Obama's Environmental Protection 
Agency overreaches and ignores the American public. The rule is an 
attempt to change the definition of what the Clean Water Act calls 
waters of the United States.
  There is bipartisan agreement that Washington bureaucrats have gone 
way beyond their authority with this new regulation. They have written 
this rule so broadly and with so much uncertainty that it is not clear 
if there are any limits on this Agency's power.
  I agree with what the chairman of the Environment and Public Works 
Committee has to say. He wrote it in an op-ed that appeared yesterday. 
Senator Inhofe, chairman of the Environment and Public Works Committee, 
said:

       Not only does this final rule break promises EPA has made, 
     but it claims federal powers even beyond what EPA originally 
     proposed a year ago. This will drastically affect--for the 
     worse--the ability of many Americans to use and enjoy their 
     property.

  This rule gives the Agency broad control over things such as any area 
within 4,000 feet of a navigable water or a tributary. Then, it defines 
tributaries to include any place where you can see an ``ordinary high 
water mark'' on what looks like--on what looks like--it was once the 
bank of a creek body of water--what looks like, not what is but what 
looks like.
  Under the rule, the Environmental Protection Agency can regulate 
something as waters of the United States if it falls in a 100-year 
floodplain of a navigable water--not a navigable water but anything 
within a 100-year floodplain of a navigable water. The rule says the 
Agency has to find a ``significant nexus'' to navigable water.
  What is a significant nexus to the EPA? Well, the Agency gets to make 
up its own definition. They say it includes something as simple as 
finding that the water provides--get this--``life cycle dependent 
aquatic habitat'' for a species that spends part of its time in a 
navigable water.
  All of these terms are things that Washington bureaucrats are 
defining for themselves. They decide for themselves that they have the 
authority.
  Let's say your property is within 4,000 feet of anything the 
Environmental Protection Agency decides is a tributary and your 
property has a natural pond or some standing water after heavy rain, 
and let's say a bird that spends part of its life on the Colorado River 
decides to hang out near that natural pond or some standing water after 
a heavy rain that occurred on your property, under this new regulation, 
the Environmental Protection Agency now has the power to regulate what 
you do on that land.
  It is bad enough that this administration has taken this 
extraordinary step. It is bad enough that it has tried to sneak out its 
rule, hoping that nobody was paying attention over the Memorial Day 
time at home. There are now reports that the Obama administration may 
have broken the law. Here is what the New York Times reported on May 18 
under the headline on the front page: ``Critics Hear E.P.A.'s Voice in 
`Public Comments.'''
  This is an article on the front page of the New York Times about the 
public comments that government agencies have to collect. They have to 
collect these comments from the public when they propose new 
regulations such as this one that they have done with the waters of the 
United States. The comment period is supposed to be an opportunity for 
people who might be harmed by the rules to have their say.
  Well, according to this front-page article in the New York Times, the 
Environmental Protection Agency has twisted the public comment 
requirements into its own private government-funded spin machine. The 
article says: ``In a campaign that tests the limits of federal lobbying 
law, the agency has orchestrated a drive to counter political 
opposition from Republicans and enlist public support in concert with 
liberal environmental groups and a grass-roots organization aligned 
with President Obama.''

[[Page 8402]]

  This tests the limits of Federal lobbying law. This government agency 
ignored the negative comments by Americans who were concerned about the 
law, who were hurt by the law. Then it used taxpayer dollars to lobby 
liberal groups to flood the Agency with positive comments. That is not 
me; that is what is written in the New York Times. These were the same 
phony, ginned-up comments it used to justify the dramatic overreach of 
its new regulations.
  It is incredible. It is unacceptable. I believe it is illegal. The 
Environmental Protection Agency would rather skew public comments in 
its favor than acknowledge the real concerns that Americans and Members 
of Congress have with this destructive rule. These are the concerns of 
farmers, of ranchers, of hard-working families, and of small businesses 
all across the country.
  There was an interesting column in U.S. News & World Report last 
Friday. The headline says: ``Stop Terrorizing Main Street.'' The column 
talked about the damage that all this redtape can do to small 
businesses. It says:

       When the EPA jumps up and yells `boo', entrepreneurs 
     cringe. They withdraw. They feel anxious and reconsider plans 
     to start or expand a business. This is bad for our economy.

  This is hurting our country. Well, I believe they are exactly right. 
That is what Washington does with the uncertainty and the overreach of 
rules such as this one. It is bad for the economy. It does nothing to 
improve the quality of our water or the quality of life.
  There is universal agreement in this country that we should protect 
America's navigable waters. There is also bipartisan agreement on the 
best ways for Washington to help to do that. This is not just 
Republicans against President Obama. This is Republicans and Democrats 
working to protect America's waterways and President Obama working, 
instead, to expand the power of unelected and unaccountable 
bureaucrats.
  Here is how the newspaper The Hill reported it last Thursday with an 
article with this headline: ``Democrats buck Obama on water rule.'' The 
article says: ``Dozens of Congressional Democrats are joining 
Republicans to back legislation blocking the Obama administration's new 
rule to redefine its jurisdiction over the nation's waterways.''
  Now, it is talking about my bill, a bill called the Federal Water 
Quality Protection Act. The bill has 30 cosponsors in the Senate--
Democrats and Republicans alike. A similar bill in the House actually 
passed with the support of 24 Democrats and every Republican. So what 
does the administration have to say to the dozens of Democrats in 
Congress, to the 24 Democrats who voted against the administration, to 
the millions of Americans who are concerned about this new regulation?
  Well, according to the article in The Hill, President Obama's top 
environmental adviser said of the Democrats who voted for this: ``The 
only people with reason to oppose the rule are polluters.'' So the 
President believes that the 24 Democrats who voted to support it and 
the Democrats in the Senate who cosponsored my legislation are 
polluters who want to threaten our clean water. That is what the White 
House thinks of these Democrats in Congress. That is what the White 
House thinks of anyone who dares to suggest that this rule is 
bureaucratic overreach. That is such arrogance.
  Well, there are a lot of Americans--Democrats and Republicans--who 
are not going to be intimidated by the Obama administration's power 
grab or its name-calling. The Obama administration has ignored the 
strong bipartisan consensus against this rule. It has once again taken 
its own radical approach. Instead of moving forward with a rule that 
fails to represent the interests of many Americans, we should act 
immediately to pass this bipartisan Federal Water Quality Protection 
Act. This legislation says yes to clean water and no to extreme 
bureaucracy.
  It will protect America's waterways, while keeping Washington's hands 
off of the things that it really has no business regulating. The 
Environmental Protection Agency would have to consult with the States 
to make sure that we have the approach that works best everywhere--not 
just the approach that Washington likes best. They would not be able to 
just listen to the echo chamber of phony comments concocted by their 
own lobbying campaign.
  Now, this bill gives certainty and clarity to farmers, to hard-
working ranchers, to small business owners and their families. It makes 
sure that people can continue to enjoy the beautiful rivers and the 
lakes. They should be preserved and protected. This bipartisan bill 
protects Americans from runaway bureaucracy--unaccountable, unelected. 
It restores Washington's attention to the traditional waters that were 
always the focus before.
  The American people do not need more bureaucratic overreach. We do 
not need more redtape. Congress should act immediately to stop this 
outrageous regulation before it goes into effect. The Senate should 
take up and pass this bipartisan Federal Water Quality Protection Act.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Cotton). The Senator from Montana.
  (The remarks of Mr. Daines pertaining to the introduction of S. 1487 
are printed in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  Mr. DAINES. I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. The Senate is in a period of morning business.

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