Energy and Water Development and Related Agencies Appropriations Act, 2017
Floor Speech
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Mr. BEYER. Mr. Chairman, this amendment is very simple: it strikes section 108 of this bill. Section 108 would prevent the Army Corps of Engineers from updating the definitions of the terms ``fill material'' or ``discharge of fill material.''
These definitions underlie section 404 of the Clean Water Act which governs dredge and fill permitting, one of the most important components of the act.
To freeze those definition in time, as section 108 does, ties the hands of the implementing agencies, despite evolving scientific understanding and current regulatory insights. Current and future administrations must have discretion to implement key terms and clarify them when needed.
The alternative puts our Nation's waters at risk.
My amendment would remove this anti-Clean Water Act rider.
When Congress first enacted the Clean Water Act, the section 404 permit process was supposed to be used for certain construction projects, like bridges and roads, where raising the bottom elevation of a water body or converting an area into dry land was unavoidable.
But under a 2002 rule change, the definition of ``fill material'' was broadened to include ``rock, sand, soil, clay, plastics, construction debris, wood chips, overburden from mining or other excavation activities.''
The revised rule also removed regulatory language which previously excluded ``waste'' discharges from section 404 jurisdiction, a change that some argue allows the use of 404 permits to authorize certain discharges that harm the aquatic environment.
The Clean Water Act section 404(b)(1) guidelines are not well suited for evaluating the environmental effects of discharging hazardous wastes, such as mining refuse and similar materials, into a water body or wetland.
In sum, the net effect of the 2002 rule change was to alter the Corps permit process in ways that Congress had never intended.
It was not congressional intent to allow mining refuse and similar material--some of it hazardous--to qualify as fill material and, thereby, bypass a more thorough environmental review and meet Federal pollution standards.
Downstream water users have every right to be concerned that the section 404 process fails to protect them from the discharge of hazardous substances.
Lower Slate Lake in Alaska is the perfect example. A permit allows the discharge of toxic wastewater from a gold ore processing mill to go untreated directly into the lake, despite the fact that the discharge violates EPA's standards for the mining industry. Mining waste can contain toxic chemicals known to pose health risks to humans and aquatic animals. Continuing the practice of dumping this waste into our Nation's streams and rivers is dangerous and irresponsible.
EPA estimates that 120 miles per year of headwater streams are buried with the chemical-laden discharge as a result of surface mining operations under existing divisions of ``fill.'' Equally important, a 2008 EPA study found evidence that mining activities can have severe impacts on downstream aquatic life and the biological conditions of a stream. That same study found that 9 out of every 10 streams downstream from surface mining operations were impaired based on assessments of aquatic life.
Mr. Chairman, this provision, section 108, is a preemptive strike against protecting our drinking water. Since there is no time limit on this provision, it would not only block the current administration but any future administration from considering changes.
Mr. Chairman, I urge my colleagues to support my amendment and strike section 108 from this bill.
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Mr. BEYER. Mr. Chairman, I yield back the balance of my time.
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Mr. BEYER. Mr. Chairman, much like the previous discussion, our amendment would simply strike section 110.
As it stands, section 110 would prevent the implementation of the Clean Water Rule. The Environmental Protection Agency and the Army Corps of Engineers adopted the Clean Water Rule following a lengthy and inclusive public rulemaking process.
It restores the Clean Water Act protections to streams, wetlands, and other important waters of the United States.
Without the Clean Water Rule, the streams that provide drinking water systems serving one in three Americans will remain at risk.
Almost everyone agreed that clarity was needed in light of the Supreme Court rulings in 2001 and 2006 that interpreted the regulatory scope of the Clean Water Act more narrowly than the agencies and lower courts. Those cases created uncertainty about the scope of waters protected under the Clean Water Act.
Calls for EPA to issue a rule even came from such organizations as the National Cattlemen's Beef Association, the American Farm Bureau Federation, the Western Business Roundtable, and the National Association of Manufacturers.
Prohibiting the EPA from implementing this rule, as section 110 would direct, would perpetrate this confusion. There are countless cases to reiterate this point.
For example, the EPA acknowledged enforcement difficulties in a case in which storm water from construction sites carried oil, grease, and other pollutants into tributaries to the San Pedro River, which is an internationally recognized river ecosystem supporting diverse wildlife, but where the waters in question flow only for part of the year.
The agency stated that it had to discontinue all enforcement cases in this area because it was so time-consuming and costly to prove that the Clean Water Act protects these rivers. So we need to end the confusion.
But, unfortunately, we are left with the Clean Water Rule not currently being enforced because of a Federal Court ruling that blocked its implementation while it is being litigated.
The Corps and the EPA will continue to make Clean Water Act jurisdictional determinations based on the 2010 guidelines, as they did before the promulgation of the 2015 rule, doing the best they can with the ambiguity that they are forced to work with. So this confusion will continue.
It needs to be said that opponents of the Clean Water Rule have it wrong. The rule respects agriculture and the law by maintaining all of the existing exemptions for agricultural discharges and waters. It identifies specific types of water bodies to which it does not apply-- areas like artificial lakes and ponds, and many types of drainage and irrigation ditches. It does not extend Federal protection to any waters not historically protected under the Clean Water Act, and it is fully consistent with the law and the decisions of the Supreme Court.
I want to reiterate. The administration has created a strong, commonsense rule to make clean water a priority by protecting the sources that feed the drinking water for more than 117 million Americans, including 2.3 million Virginians. If we continue to block the rule to protect clean water, at least 57 percent of Virginia's streams and 20 million acres of wetlands nationwide will continue to be at risk.
American businesses need to know when the Federal Government has authority and when it doesn't. Without updated guidance and the clarity it provides, businesses will often not know when they need Army Corps of Engineers' permits. This uncertainty could result in civil and criminal liability and will certainly cost them extra money.
Overall, the Clean Water Act riders are part of an effort to return us to a time when we had no uniform, national, minimum clean water standards, and States had conflicting policies or no policies to protect the public. That was a time when rivers were so polluted they caught fire and when responsible downstream States suffered the consequences of lax or weak upstream State policies.
Mr. Chairman, I urge my colleagues to oppose these Clean Water Act riders and to support my amendment to strike section 110.
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Mr. BEYER. Mr. Chairman, I yield such time as she may consume to the gentlewoman from Ohio (Ms. Kaptur), the distinguished ranking member of the subcommittee.
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Mr. BEYER. Mr. Chair, I yield back the balance of my time.
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