Federal Water Quality Protection Act--Motion to Proceed

Floor Speech

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Mr. HOEVEN. Mr. President, I rise today in support of bipartisan legislation to fix intrusive regulation that will hurt job growth and that threatens to place a large share of our Nation's farmers, ranchers, and small businesses in the regulatory grip of the EPA. This burdensome regulation is the EPA and Army Corps' final rule on the waters of the United States. The bill to fix it is called the Federal Water Quality Protection Act. That is the bill we are seeking to proceed to today so that we can debate it, amend it, and pass it to deal with this onerous regulation.

The burdensome regulation we are talking about, of course, is the EPA and Army Corps' final rule on waters of the United States. The Federal Water Quality Protection Act is legislation to address it. It was authored by my good friend from Wyoming Senator Barrasso, and I cosponsored this legislation, along with many others on our side of the aisle. This is also a bipartisan bill with our colleagues from across the aisle as well. This is bipartisan legislation. It has had bipartisan input, and I encourage Members on both sides of the aisle to proceed to this legislation. Let's have this very important debate on behalf of our farmers, ranchers, and so many other job creators across this country. As I say, let's offer amendments and have our votes, but we need to deal with this very important legislation for the benefit of the American people.

This waters of the United States final rule greatly expands the scope of the Clean Water Act regulation over America's streams and wetlands. It is a real power grab by the EPA, and it exceeds the statutory authority of the EPA. The Supreme Court has found that Federal jurisdiction under the Clean Water Act extends the ``navigable waters.'' I don't think anyone is arguing about the EPA's ability to regulate navigable bodies of water like the Missouri River, in my State, but the Supreme Court has also made clear that not all bodies of water are under the EPA's jurisdiction. Yet, under the administration's final rule, all water located within 4,000 feet of any other water, or within the 100-year flood plain, is considered a water of the United States as long as the EPA or the Army Corps of Engineers decides it has a ``significant nexus'' to that navigable water in the opinion of either the Corps or the EPA.

These agencies define significant nexus so that almost any body of water qualifies. For instance, if an area can hold rainwater or has water that can seep into ground water, which is almost any water anywhere, then there is significant nexus, according the EPA or the Army Corps of Engineers, not to mention the fact that areas like the Prairie Pothole region in my State of North Dakota are specifically targeted as waters of the United States. The result is that the vast majority of the Nation's water features are located within 4,000 feet of a covered body of water.

If this expansive rule sounds out of bounds to you, you are not alone. In fact, the waters of the United States rule is such an overreach by the EPA and the Corps that 31 States are suing to overturn it, including my State of North Dakota, which has led a lawsuit brought by 13 of those 31 States.

When granting a preliminary injunction against this rule, the North Dakota Federal District Court stated that ``the rule allows EPA regulation of waters that do not bear any effect on the `chemical, physical and biological integrity' of any navigable-in-fact water.'' It went further to state that ``the rule asserts jurisdiction over waters that are remote and intermittent waters. No evidence actually points to how these intermittent and remote wetlands have any nexus to navigable-in-fact water.''

Meanwhile, the Sixth Circuit Court in Cincinnati, OH, issued a nationwide stay of the rule, citing that the EPA and the Corps did not identify ``specific scientific support substantiating the reasonableness of the bright-line standards they ultimately chose.''

This waters of the United States rule is clearly flawed from a legal perspective, but I think it is even more important to take a look at how this rule, if allowed to be implemented, will affect hard-working Americans with excessive regulation.

For those of you who haven't had the opportunity to visit with a farmer from my State of North Dakota, know that dealing with excess water is a common issue, a daily issue, to say the least. Those farmers can tell you that if there is water in a ditch or a field one week, it doesn't mean there will be water there the next week. It certainly doesn't make that water worthy of being treated the same as a river.

A field with a low spot that has standing water during a rainy week and happens to be located near a ditch does not warrant Clean Water Act regulation from a legal or, more importantly, from a simple commonsense standpoint.

The Corps and EPA have responded to these concerns by saying they are exempting dozens of conservation practices, but these exemptions cover farmers and ranchers only for changes made before 1977 or for changes that don't disturb any water or land now considered to be a water of the United States. In other words, if you need a new Clean Water Act permit, you are not going to qualify for the EPA's exemption under this rule. Moreover, the exemption does not cover all Clean Water Act permits.

Because of this rule, the farmer with the low spot in the field next to a ditch, described above, may now be sued under the Clean Water Act's Section 402 National Pollutant Discharge Elimination System. This farmer now faces the risk of litigation costs for the United States of everyday weed control and fertilizer applicants, among other essential farming activities.

Farmers and ranchers are far from the only job creators who will suffer under this rule. In fact, the Small Business Administration Office of Advocacy has expressed concern about the impact it will have on other small businesses as well.

I am so concerned about this rule that I have led the effort on our Appropriations Committee to stop the rule in its tracks. We were successful in including language in the committee-passed Interior-EPA Appropriations bill to do just that. The Federal Water Quality Protection Act, however, offers a long-term solution by vacating the waters of the United States rule and sending the EPA and the Corps back to the drawing board to develop a new rule with instructions to consult with States, local governments, and small businesses.

America's farmers, ranchers, and entrepreneurs go to work every day to build a stronger nation. Thanks to these hard-working men and women, we live in a country where there is affordable food at the grocery store and where a dynamic private sector offers Americans the opportunity to achieve a brighter future. The Federal Government should be doing all it can to empower those who grow our food and create jobs. Yet, instead, regulators are stifling growth with burdensome regulations that generate cost and uncertainty. The final rule on the waters of the United States produced by the EPA and the Corps to regulate virtually every body of water--pretty much water anywhere in the United States--is not the way to go. Let's stop this regulation. Please join me in voting to proceed to the Federal Water Quality Protection Act.

Mr. President, I yield the floor.

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