Energy and Water Development and Related Agencies Appropriations Act, 2016

Floor Speech

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Mr. HOEVEN. Mr. President, I will yield the floor to the good Senator from Michigan for a minute.

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Mr. HOEVEN. Mr. President, I am willing to yield to the junior Senator from Michigan.

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Mr. HOEVEN. Mr. President, I rise today to ask my colleagues to support an amendment I offered, amendment No. 3811, that prevents the EPA and the Corps of Engineers from implementing its waters of the United States final rule. The language for my amendment is actually identical to the waters of the United States provision in the underlying bill. It is already in the bill, H.R. 2028, which we are considering right now. My amendment will make sure that this waters of the United States provision stays in the bill and that our bill is consistent with legislation supported by the House.

It is critical to preserve the prohibition on implementing the waters of the United States because this rule will greatly expand the scope of EPA regulations over nearly every water in the United States, threatening farmers and job creators with permitting requirements and litigation that will make it more difficult for them to produce our Nation's food and complete needed construction projects.

Moreover, this regulatory overreach by the Army Corps of Engineers and the EPA is inconsistent with the law. Let's look at what the courts are saying. When granting a preliminary injunction against this rule, the North Dakota Federal District Court stated:

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 on further to state:

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.

That is the key. EPA has jurisdiction over navigable bodies of water, not ephemeral water that might be in a ditch today and gone tomorrow.

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

To get a sense of the size of the Federal power grab we are talking about here, consider that under the administration's final rule, all water located within 4,000 feet of any other water or within the 100- year floodplain is considered a water of the United States as long as the EPA or the Army Corps of Engineers decides that it has ``significant nexus.'' That is the argument the EPA is making-- ``significant nexus.'' They are saying: Well, we can regulate navigable bodies of water. They just decided, without statutory authority provided by this Congress or any other authority, that because other waters run into navigable bodies, they can regulate all water, and they have issued a regulation to do that.

The waters of the United States is clearly flawed from a legal perspective, but it is even more important to take a look at how this rule, if implemented, affects hard-working Americans with excessive regulations. For those of you who haven't had the opportunity to visit with a farmer from my State or any farmers across this country, do so. They will tell you how difficult it is to deal with excess water on their property, particularly when they face an overbearing regulation like this one. Those farmers can tell you that just because there is water in a ditch or field one week doesn't mean that there will be water there next week. It certainly doesn't make the water worthy of being treated the same as a river, a lake, or a navigable body of water. A field with a low spot that has standing water----

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Mr. HOEVEN. Mr. President, I ask that the Members of this body not only consider the underlying issue and the impact it will have on farmers and ranchers. It will also affect everybody's private property rights. I also ask my colleagues to consider their own prerogative. Under our Constitution we have legislative, judicial, and executive branches, and each has its own authority. We have to stand up on this one when an agency overreaches and takes statutory authority we have not provided.

I ask that Members join with me in support of this vitally important amendment.

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