Providing for Congressional Disapproval of a Rule Submitted By the Corps of Engineers and the Environmental Proctection Agency

Floor Speech

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Madam President, I wish to congratulate our friend and colleague, the Senator from Iowa, on this strong vote on the motion to proceed to this congressional resolution of disapproval of this overreaching regulation issued by the Environmental Protection Agency. I want to talk a little bit about this rule, but I also want to talk about how symptomatic this is of the overreach we are seeing coming from the executive branch, particularly when it involves rulemaking.

This rule is a response to a Supreme Court decision and a number of other decisions by the lower courts which held previously that the Federal Government had overreached when it comes to trying to regulate so-called navigable waters of the United States.

I think there is no real question in anybody's mind that under the interstate commerce provisions of the U.S. Constitution, the Federal Government has a responsibility when it comes to navigable waters, but, as the Sixth Circuit Court of Appeals said in a decision it handed down on October 9, the plaintiffs in the case against the Environmental Protection Agency and this particular rule established a substantial possibility of success on the merits of their claims where they said that the rule's treatment of tributaries, adjacent waters, and waters having a significant nexus to navigable waters is at odds with the Supreme Court's decision in the Rapanos case, which was handed down in 2006. It said also that the provisions of the rule make it unclear as to the distance limitations, whether it is harmonious with the decisions of the Supreme Court. So, for example, if you could say the tributary that feeds another body of water that feeds another body of water that then feeds another body of water that eventually gets into navigable water is subject to the rulemaking authority of the Environmental Protection Agency is in conflict with the decision in the Rapanos case, and I don't believe it would ever withstand constitutional scrutiny.

Moreover, the Sixth Circuit Court of Appeals said the rulemaking process by which the so-called distance limitations were adopted is suspect. They said it did not include any proposed distance limitation in use of the terms such as ``adjacent waters'' or ``significant nexus.'' So under the opinion of the Sixth Circuit Court of Appeals, a body of water could be far removed from that navigable water and still be determined as an adjacent water or have a significant nexus and be subject to the far-reaching provisions of the rule.

The Sixth Circuit Court of Appeals also said that there was no scientific support for the distance limitations that were included in the final rule.

The plaintiffs contended and the Sixth Circuit agreed that this rule is not the product of reasoned decisionmaking and is vulnerable to attack as impermissibly arbitrary or capricious under the Administrative Procedure Act.

Ordinarily, the Court of Appeals for the Sixth Circuit said, they would not issue a stay pending the resolution of the challenge to the rule, but they said the sheer breadth of the ripple effect caused by the rule's definitional changes counsel strongly in favor of maintaining the status quo for the time being. They also noted that the rule had already been stayed in 13 different States where previous litigation had been filed and decided. So, as a result, on October 9, the Sixth Circuit Court of Appeals issued a nationwide stay for the very rule that is the subject of this Congressional Review Act vote that we just had and that we will have after 10 hours of debate.

But beyond the arcane provisions of the Administrative Procedure Act and what is navigable water and what is adjacent water, what has a sufficient nexus and the like, I think what we need to recognize is that this rule represents the single largest private property grab perhaps in American history because it claims as Federal jurisdiction private property that previously had not been thought of as having any nexus or connection with Federal authority or even interstate commerce--potholes, drainage ditches, culverts, stock ponds, things such as that that are arguably now within the ambit of this rule, and that cannot be the case.

That is why so many of us have heard not just from our farmers, cattle raisers, and agriculture producers, but we have heard from people in the construction business, people who are concerned about this private property grab, and they said this cannot be the case. As I said, farmers and ranchers, homebuilders, manufacturers, utilities, the concrete industry--any entity that builds or develops on real estate will likely be impacted.

I am very happy that under the leadership of the Senator from Iowa, we have gotten this far on this congressional resolution of disapproval, and I hope that after this debate--perhaps tomorrow--we will be in a position to send this to the President of the United States stating views of the U.S. Senate and Congress that this rule simply is too broad and cannot stand.

The Sixth Circuit Court's opinion is not a substitute for what we do under the Congressional Review Act. It is part of our responsibility as Members of the U.S. Congress.

In my State, as, I am sure, in other places around the country, farming and ranching is more than a job. It is a way of life. It is part of our culture and very definitely a family affair. In fact, about 98 percent of all farms and ranches in Texas are family-owned. When I am back home and have the chance to visit with those who provide the food and the fiber to feed and clothe us, they are very concerned about this legislation--as they should be--because it not only represents a threat to their way of life and their ability to provide for their families and for our States and our country, it is a power grab unprecedented in U.S. history.

In May, the Environmental Protection Agency released the final rule that is supposed to protect our water. Who could be opposed to that? Well, nobody if they had done it within the Constitution and within the law. That sounds innocuous enough. But in reality, it acts as a Federal land grab, one which would add significant costs to our farmers and ranchers and which has the potential to greatly intrude on the private property of landowners.

While we all can agree that clean water is a priority, the Obama administration has overstepped that goal and pitted the EPA and the Army Corps of Engineers against the hard-working farmers and ranchers in Texas and across the country. But it is not just the agriculture sector, as I mentioned a moment ago. I have been hearing from a lot of stakeholders back home who are incredibly concerned about the negative potential impact this rule will have on their business. This rule is such a vast expansion of Federal jurisdiction that multiple sectors of our economy could be adversely affected--as I said, homebuilders, the oil and gas industry, mining companies, and manufacturers.

This rule is not just some simple, straightforward provision to protect water; it is a veiled threat against the private sector and a blueprint for stifling economic growth in our country.

In 2014 the economy in my State grew roughly 5.2 percent. We were among the most fortunate States in the Nation to see a lot of job growth and opportunity. That is why people are moving to Texas--because that is where the jobs are. Conversely, in 2014 we saw across the country our economy grow at roughly 2.2 percent.

While we have been encouraged to see the unemployment rate tick down little by little, the truth is that when you start getting into the numbers, you realize that the labor participation rate--the percentage of people actually actively looking for work--is at a 30-year low, thus making that lower unemployment rate look better than it really is.

This is an important piece of legislation, and I know a lot of people are paying attention to it back home and across the country because of its impact. I am frustrated we weren't able to move the earlier legislation forward due to a filibuster by the minority, in this case, who are clearly trying to do everything they can to protect this administration and its overreach, but of course all of us are going to be held accountable at the ballot box, as we should be. Anyone who has voted against proceeding with this commonsense legislation to rein in an out-of-control Federal agency, I believe, will live to regret that decision.

CONGRATULATING SENATOR GRASSLEY ON CASTING HIS 12,000TH VOTE

Madam President, I just have one other thing to say on a different topic. It has sort of been the quiet after we celebrated the 15,000th vote by the Senator from Vermont very publicly the other day. Our more reticent, and perhaps even occasionally shy, Mr. Chuck Grassley, the senior Senator from Iowa, celebrated his 12,000th vote in the Senate.

Senator Grassley is well known for his consistency and steadfast commitment to the people of Iowa. I have to say, I don't know of any Senator who works harder to get and to keep the trust and confidence of the people he represents. This 12,000th vote should come as no surprise. He actually hasn't even missed a vote since 1993. Every year for more than 30 years, Senator Grassley has demonstrated his commitment to the people of Iowa by visiting every one of the State's 99 counties.

I know he keeps his colleague, the junior Senator from Iowa, Mrs. Ernst, running just trying to keep up with him. That is an impressive record for anyone, and one that many--including our Presidential candidates--sometimes need to try to duplicate.

I will speak, for just a second, beyond statistics about Senator Grassley because I have the honor of serving with him on both the Finance and Judiciary Committees. He has worked tirelessly, not just for the people of Iowa but for all Americans. Indeed, my colleague shares my concern for creating a more open and transparent government. As somebody who is conservative by ideology and by nature, I was not sent by my constituents in Texas to pass more rules and regulations. I am here to hold the government, and particularly the bureaucracy, accountable. One way we can do that, without adding additional regulations, rules, and costs to the taxpayer, is by encouraging an open and more transparent government because with that comes accountability.

Senator Grassley has used his role as chairman of the Judiciary Committee to advance these values and to hold government and the bureaucracy accountable for the benefit of not just Iowans but for the benefit of the American people.

I thank the Senator from Iowa for the great example he sets for the rest of us and applaud him for casting his 12,000th vote.

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