[Congressional Record (Bound Edition), Volume 162 (2016), Part 12]
[Senate]
[Pages 16532-16536]
[From the U.S. 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.

[[Page 16533]]

  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, 
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

[[Page 16534]]

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 
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

[[Page 16535]]

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 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

[[Page 16536]]

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.

                          ____________________