Department of Defense Appropriations Act, 2016

Floor Speech

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Mr. MORAN. Mr. President, this week has been devoted legislatively to discussing and considering legislation affecting an EPA regulation called waters of the United States. It is one more example of executive overreach by an increasingly unaccountable Federal agency.

I want to speak about our efforts here on the Senate floor this week and again encourage my colleagues to continue their efforts to make certain this overreach is responded to by Congress. The courts have spoken, but we want to make certain we do our job.

One of the criticisms I hear regularly from people who support this regulation is this: Don't you care about water quality? Don't you care about clean water? I absolutely think it is important to protect our Nation's waterways. If you are a Kansan, water is life, water is the future of your community. Water matters greatly. We are not against clean water.

Agriculture producers--which dominate in my State--across Kansas are strongly opposed to this regulation, but they are certainly not opposed to the efforts to keep our water supply safe and clean. Most Kansas farmers and ranchers hope to pass their land and their farming operations on to their kids and grandkids. It serves their interests to preserve the land and water to which their family farms are tethered. It is not the Washington lobbyists and the environmental radicals who are telling Americans ``If you oppose this regulation, you are opposed to clean water.'' That is what they say. Kansans care greatly and particularly farmers and landowners who want their children to enjoy their farm or ranch in the future care greatly about clean water.

It is EPA's abusive regulatory path, characterized by fines, penalties, and potential civil lawsuits against landowners, that gives us major cause for concern. The Federal Government should not dictate to citizens how they manage their private lands.

I believe there are better ways to promote water quality than with threats of severe fines, penalties, or even jail time. One of the ways we see this effort take place is through the Department of Agriculture's Natural Resource Conservation Service. NRCS promotes soil and water health not by mandates and threats from Washington but through collaborative, voluntary approaches that encourage conservation through incentives and on-the-ground technical assistance for those landowners.

Unlike the EPA, which seems to view agriculture producers as untrustworthy partners who must be forced into caring for the land, NRSC and the USDA Farm Service Agency efforts are successful in large part because they operate under the recognition that farmers and ranchers are devoted stewards to their land.

Policies such as the Grassroots Source Water Protection Program and the Environmental Quality Incentives Program are examples of voluntary approaches that incentivize innovation, provide technical assistance, and more broadly promote clean water through localized, cooperative efforts. Compare those approaches to what we are debating here on the floor today and earlier this week--an overly broad, overly complex, overly ambitious regulation drafted by an agency that has shown a complete unwillingness to listen to or work with landowners.

This regulation is pretty straightforward. If it is water, EPA has the authority to regulate it unless it decides it doesn't want to. Again, what this regulation basically says is that if it is water, EPA has the authority to regulate it unless EPA decides it doesn't want to do it.

First, EPA declares that all ``tributaries'' are waters of the United States. Tributaries are defined as anything with a bed, banks, or an ordinary high-water mark, regardless of the frequency or duration of the water flow. This kind of definition is so broad and all-encompassing that the EPA can assert jurisdiction over streams and ditches that may flow only for a few hours following a rainstorm.

This regulation also controls waters that are ``adjacent'' to any water that is under EPA's jurisdiction, including 100-year-old floodplains. And if somehow water could still escape the EPA's long shadow, its broad definition, they came up with yet one more way to regulate it. The regulation states that if waters aren't adjacent or are not tributaries, they can still regulate if there is ``significant nexus'' between the waters EPA wants to regulate and navigable or interstate water. What that means is that every drop of rain can be regulated because every drop of rain always ends up in a body of water that is navigable. All EPA has to do is establish some connection between the two, and they have granted themselves the authority to regulate the waters.

With its significant civil fines and criminal penalties for those not in compliance, we can see why so many Americans are concerned.

Last year, EPA went on a public relations campaign of sorts to convince stakeholders and to convince people across the country that they only meant to ``clarify,'' not expand, the regulation. Instead of lecturing, the EPA should have listened to the overwhelming feedback they received from constituents, including many who attended a meeting in Kansas City. The EPA should have scrapped the rule and started over.

Now we have learned that not only did the EPA ignore the outcry of the American people, but they also disregarded the technical experts at the Army Corps of Engineers who described the rule as ``not reflective of the Corps' experience or expertise.'' Again, the Corps is the agency that the EPA is to work with to develop rules. They are the experts, and they say this rule is not reflective of the Corps' experience or expertise. The Corps says it is not accurate. The Corps says it is not supported by science or law. The Corps says it is inconsistent with the Supreme Court's decision. And the Corps says it is regulatory overreach.

It is obvious that the regulation exceeds the EPA's legal authority under the Clean Water Act. It is equally obvious that the EPA intended to run roughshod over anyone who disagreed.

The waters of the United States regulation is, in short, a breathtaking abuse of power, and it is something Congress needs to address.

For too long, Congress has looked the other way when this Executive or any other occupant of the White House exceeds their congressionally mandated legal authorities. Republicans perhaps look the other way when there is a Republican President and Democrats look the other way when there is a Democratic President. The reality is that Congress needs to play its constitutional role in determining what the law is and prevent the abuse that comes from a White House that exceeds that legislative authority day after day.

The EPA's regulations ignore two Supreme Court opinions. It ignores a time-honored understanding of what the law does and does not permit in the way of regulation, as evidenced by numerous legislative attempts rejected by Congress to amend the Clean Water Act that the Obama administration now does by regulatory action. It ignores the serious repercussions for farmers and ranchers, electric cooperatives that provide electricity to my State, the oil and gas industry that provides jobs across Kansans, the homebuilders that provide homes for Kansans, and many other small business owners in our State and across the country. And it ignores the concerns voiced by so many more, including State and local officials across Kansas and our Nation.

At the end of the day, if the goal is to promote clean water and responsible land management, there is a much more effective method to do so, as evidenced by the voluntary cooperative efforts within USDA that respect private property rights, incentivize conservation rather than criminalize landowners, and don't threaten to do irreparable harm to our country and to the jobs Kansans so desperately need.

I urge my colleagues to block this regulation and to force the EPA and the Army Corps of Engineers to work with State and local officials and those affected by the regulation in protecting real waters of the United States. We must protect those waters. We should do it much differently than the Environmental Protection Agency proposes.

I yield the floor.

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