Federal Water Quality Protection Act -- Motion to Proceed

Floor Speech

BREAK IN TRANSCRIPT

Mr. President, I appreciate the opportunity today to move this legislation. It is bipartisan, and it protects our environment and helps small businesses all across the country.

S. 1140, the Federal Water Quality Protection Act, is legislation I introduced, along with a number of Democratic Senators--Senators Donnelly, Heitkamp, and Manchin--and many other Senators.

The Senator from California previously spoke. I would point out that the California Chamber of Commerce supports my legislation and the California Farm Bureau supports my legislation because this legislation will protect our Nation's navigable waters and the streams and wetlands that help our navigable waters stay clean. This bill is a testament to the hard work both sides of the aisle have done in achieving an agreement on an environmental protection bill.

Our rivers, our lakes, our wetlands, and all other waterways are among America's most treasured resources. In my home State of Wyoming, we have some of the most beautiful rivers in the world--the Snake River, the Wind River, and dozens of others. People from around the world come to Wyoming to visit because we have an environmental landscape that is second to none. Anyone who has come to my State and experienced Yellowstone National Park, Grand Teton, and the Big Horn Mountains comes away with a sense that Wyoming is a pristine and beautiful place. It is what Wyoming sells, and it is what makes Wyoming so unique.

The people of Wyoming are devoted to keeping our waterways safe. We want to preserve the water for our children and grandchildren. We understand there is a right way and a wrong way to do it.

It is possible to have reasonable regulations to help preserve our waterways while respecting the difference between State waters and Federal waters. This is the environmental legacy that my constituents want, and it is a legacy they have earned for their decades of sound management. It is the people of Wyoming who have kept Wyoming's waterways pristine and beautiful.

The EPA has now released new rules. The new rule is called the waters of the United States rule, WOTUS. This rule doesn't work for the people of Wyoming. It most likely doesn't work for any of your constituents, either--certainly not for those who have to put a shovel in the ground to make a living.

The courts have begun to weigh in with their concerns about this WOTUS rule, and they have actually given Congress and stakeholders a necessary pause. That is why we are here today.

In August of this year, Judge Erickson of the District of North Dakota issued an injunction that blocked the waters of the United States rule in 13 States. He did it because the rulemaking record was, in the judge's words, ``inexplicable, arbitrary, and devoid of a reasoned process.'' With regard to the rationale behind the EPA's threshold for what is and is not Federal water, he stated: ``On the record before the court, it appears that the standard is the right standard only because the Agencies say it is.''

The U.S. Sixth Circuit Court of Appeals then put a nationwide stay on the rule on October 9 of this year. In granting the stay, the court said, ``The sheer breadth of the ripple effects caused by the Rule's definitional changes counsel strongly in favor of maintaining the status quo for the time being.'' So keep it as it is for the time being. The court added that ``a stay temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new Rule and whether they will survive legal testing.''

So what the courts have basically done is said: Let Congress have time to act.

We don't have to sit on the sidelines and watch this rule slowly crumble under legal scrutiny. Contrary to some activist groups' rhetoric, we are not facing an immediate environmental water pollution crisis. In fact, in granting the stay, the Sixth Court stated that ``neither is there any indication that the integrity of the nation's water will suffer imminent injury if the new scheme is not immediately implemented and enforced.'' They even called it a ``scheme.''

We now have the opportunity to do better, and to do better, we must act now. That is why we must take this opportunity to pass the legislation before us that will have EPA do a new rule under a specific set of principles outlined by Congress. These are principles that protect navigable waters and adjacent wetlands, as well as farmers, ranchers, and other landowners.

I know some Senators gave the administration the benefit of the doubt with this rule despite concerns they heard from their constituents, and those Senators waited for the final result before making a judgment to see if those concerns would be addressed. I am here to say that whatever concessions the EPA says they made to address some of these serious problems raised by their proposed rule, the EPA added new provisions in the final rule that greatly expand their authority. This is disappointing because I believe the great majority of Senators voiced concerns in the process, and those concerns fell on deaf ears. The EPA has produced a final rule worse than the one originally proposed.

Here is an example. Instead of clarifying the difference between a stream and an erosion on the land, the rule defines ``tributaries'' to include anyplace where EPA thinks--where EPA thinks--it sees an ``ordinary high-water mark.'' What looks like, not what is; what looks like, what they think is this ordinary high-water mark. Even worse, EPA proposes to make those decisions from sitting at their desks using aerial photographs, laser-generated images, claiming that a visit to the location is not necessary.

Under the rule, the Environmental Protection Agency also has the power to regulate something as ``waters of the United States'' if it falls within a 100-year floodplain or if it is within 4,000 feet of a navigable water or a tributary and the EPA claims there is a ``significant nexus.'' What is a significant nexus? Under this rule, a ``significant nexus'' can mean a water feature that provides ``life cycle dependent aquatic habitat'' for a species. So if you are drawing 4,000-foot circles around anything the EPA defines or identifies as a tributary--remember, 4,000 feet, so we are talking over 13 football fields long, and everywhere there is a potential aquatic habitat. So essentially almost the entire United States, according to this, would be underwater. Actually, 100 percent of the State of Virginia is under this jurisdiction and 99.7 percent of the State of Missouri falls within this area--underwater, if you will, according to the EPA guidelines.

I would like to take a moment to talk about puddles because one of the previous speakers on the other side of the aisle talked about puddles. People know what they think about when they think about a puddle--like when it rains. The final rule does exempt puddles defined as ``very small, shallow, and highly transitory pools of water that forms on pavement or uplands during or immediately after a rainstorm or similar precipitation event.'' I guess that would mean like when the snow melts. The rule specifically does take control over other pools of water created by rain, like those we have all around Wyoming--prairie potholes, vernal pools--even if the land where these pools of water form is far away from any navigable water or even a tributary. Under this new regulation, nearly all of these pools of water created by rain will now be considered ``waters of the United States,'' giving the Environmental Protection Agency the power to regulate what you do on that land. These provisions are sweeping and will create uncertainty in communities all across the country.

There is plenty that I have already outlined in the waters of the United States rule that is bad for agriculture, with the many methods it provides for federalizing previously State-controlled water. The States have made these decisions in the past. Now we are adding another level of government bureaucracy.
This rule is bad for agriculture, for those people who produce our food. Farmers, ranchers, and others are used to working with their States to protect their land and water under their own stewardship.

We heard from the Senator from California about groups opposing this, but 480 different groups support this bill, and they are major national groups: the American Farm Bureau, the Agricultural Retailers Association, the American Soybean Association, the American Sugar Alliance, the Milk Producers Council, the National Association of Wheat Growers, the National Cattlemen's Beef Association, the National Chicken Council, the National Corn Growers Association, the National Council of Farmer Cooperatives, the National Pork Producers Council, the National Turkey Federation, the U.S. Poultry and Egg Association, the United Egg Producers, the USA Rice Federation. I could go on and on. These are the food producers of America. They support the legislation in front of the Senate today.

The point is, not one State, not a single State in this country is out there that doesn't have a strong agriculture presence. We all do. So I urge all Senators to make sure, as they prepare to vote on this motion to proceed, that they check with their folks at home.

I would also note that many industries outside of agriculture are concerned with the rule as well. These include manufacturers, homebuilders, small businesses--you name it. They are all very concerned with this rule, and they want Congress to act now.

Action could mean Congress can pass a Congressional Review Act resolution, which will be considered possibly later in the process, but that would eliminate the WOTUS rule and prevent a substantially similar rule from being proposed. That would allow for a new rule as long as it was not substantially similar to the existing rule. We need to vote on this resolution.

I believe S. 1140 is a better route, the one we have here today. This is a bipartisan compromise. This is the bill that has a number of Senators from the Democratic side of the aisle cosponsoring the legislation. Most importantly, this piece of legislation on the floor today allows for Congress to establish the principles--Congress to establish the principles--of what the new EPA would look like.

I know a number of Democrats have ideas to improve the legislation that is on the floor today specific for their own States. If my colleagues vote to proceed to the motion to proceed at 2:30 this afternoon, we will have an open amendment process that would allow Members to improve S. 1140 in a bipartisan way. We are willing to work with anyone who wants to improve this rule in a bipartisan way. But let's not sit on the sidelines anymore.

Rather than support an EPA final rule that actually makes it worse and was worse than the proposed rule--a rule that will likely not survive legal scrutiny based on what we saw from the courts, a rule that doesn't represent the interests of our farmers, ranchers, families, small businesses, and communities--let's move forward with the bipartisan Federal Water Quality Protection Act to ensure the public that we hear and we understand their concerns.

At the same time, let's give EPA and the Army Corps the certainty they need to confidently move forward with a new rule--a rule that truly reflects the needs of the constituents we represent. Let's protect our Nation's waterways for the long term.

BREAK IN TRANSCRIPT

Source