Energy and Water Development and Related Agencies Appropriations Act, 2016

Floor Speech

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Mr. MERKLEY. Mr. President, we heard a tremendous amount over the course of the past year about fighting for workers and working families. What does it take for a working family to thrive? It takes a good living-wage job, access to public education for children, and for those children to be able to pursue their dreams with affordable opportunities and education. It also takes health care.

Take a profession like coal mining--far more dangerous than virtually any profession Members of the Senate have had in the course of their lives. Health care is an essential element both for the miner and for their families. So how is it that we are at this point right now in which many miners don't know if they are going to have health care beyond April of next year? They don't know whether this body is going to stand with them. They are in limbo. They are in a state of anxiety, and it is absolutely unfair.

So we know, as tonight progresses, we are in a situation where we have an extension through April, but, as Joe Manchin has said in his fight leading this effort to necessarily secure health care for coal miners and as our incoming Democratic leader has said, this is going to be something that we are going to stand together for in this coming year. We are going to make sure their health care does not expire in April. This benefit has been earned through hard labor, over difficult years, in ways few of us can imagine, and we are going to stand with the coal miners in getting that benefit.

I am proud to sponsor this bill and stand with Joe Manchin and Chuck Schumer tonight.

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Mr. MERKLEY. Mr. President, reserving the right to object, there has been a list that has been worked out for both sides. Many of us have been waiting many hours to deliver our speeches, and I believe what the Senator is proposing modifies that considerably.

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Mr. MERKLEY. Mr. President, reserving the right to object, I have been on the floor here waiting for 2\½\ hours to deliver my speech on WRDA, and I don't think my colleagues across the aisle have been here for that amount of time. Maybe we should stick to the list that has been worked out on both sides.

Mr. COATS. Mr. President, if I could respond to my colleague, many of us have been on the list also, and we also have been waiting hours and hours and hours--patiently waiting. Again, working down through the list was not followed by the opposition.

I am simply saying that what was asked just a few moments ago was not objected to. When Members on the other side of the aisle had their opportunity to speak, we were patiently waiting. They have left the floor. There is no one on their side who has not spoken.

I don't see what the problem is. The Senator from Oregon wants to file a list, but no one on the list on the other side is here. We are going to speak for a limited amount of time, and we have been waiting 3 hours to do so. So I am hoping my colleague would allow us to do that.

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Mr. MERKLEY. Mr. President, reserving the right to object, I believe my colleague makes a persuasive argument. Many did come to the floor to share in that important dialogue regarding extending health care for our miners, and given that, I take the Senator's point, and I look forward to speaking later.

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Mr. MERKLEY. Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

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Mr. MERKLEY. Madam President, I rise to share a few thoughts on the Water Resources Development Act, or, as it is referred to, the WRDA Act. This is a bill which has a tremendous number of water projects across America that in general will work to make many communities' economies work far better. These are widely distributed across the country, and they are widely needed. It was worked out through a tremendous amount of effort on the Senate side and on the House side.

There are certainly projects there I have fought for that will be of assistance on the Columbia River and to the tribes who were affected by the dams on the Columbia River and on the WIFIA, the Water Infrastructure Finance and Innovation Act--a vision I have been working on for years to put in place.

All of that is very good, but I have real concerns about a provision that was airdropped into the conference. This is not just a little one- sentence rider; this is 90 pages called the California Drought Act.

Picture the big vision here. For years, the Central Valley of California has been a massive consumer of water for agriculture. We have had years of drought. During those years that the Central Valley was a massive consumer of water, they planted a lot of crops that consume a lot of water. Crops like almonds--it takes a gallon of water for every almond. There are crops like rice, where you have to flood the paddies of rice and there is massive loss to evaporation. But the agricultural community there wants to continue growing the same crops even throughout the drought, and so they are looking for ways to pull more water out of the Northern California rivers and ship it to the Central Valley.

Why is this a concern? This is a concern because these rivers in the northern part of the State are key rivers for salmon. If you drain these rivers to fulfill the water needs of the Central Valley, you will do enormous harm to the salmon and to the salmon fishermen.

When salmon go downstream and head out to sea for 5 or 6 years, they swim north. They have a huge impact and role to play off the Oregon coast and off the Washington coast. That is why during the course of this debate you have seen two Senators from Washington State, Maria Cantwell and Patty Murray, talk about how concerned they are and why you have seen my colleague from Oregon, Ron Wyden, talk about how concerned he is--because we have at play here a battle between the salmon fishermen and that industry and its iconic species and all it provides to the Northwest and the agricultural growers of the Central Valley.

It isn't as if the growers in the Central Valley haven't benefited from taking water from north California--from the northern rivers; they have been doing it for decades. They have been increasing the amount of water for decades. Now they are asking to use this drought, through this California drought bill, to give them authority to take even more water despite a negative impact on the salmon.

That is why I am troubled, and there are some key provisions that I thought are worth talking about specifically because some folks have come to this floor and said: Don't worry, be happy. Nothing in here is going to change the provisions and applications of the biological opinions that control how we make sure we sustain a healthy environment for the fish. Others have come and said: Don't worry, there is nothing that changes the application of the Endangered Species Act. But unfortunately that is just not accurate. I thought I would give some insight into how this works.

Section 4001 in the bill provides an opportunity to bypass biological opinions by setting up a pilot project and then studying the outcome of the pilot project. It uses the pilot project as a way to do an end run around the biological opinions and the Endangered Species Act.

Just to share a little bit of the language, quoting directly from the bill, ``[T]he California Department of Water Resources . . . [will] implement a pilot project to test and evaluate the ability to operate the Delta cross-channel gates daily or as otherwise may be appropriate to keep them open to the greatest extent practicable. . . and maximize Central Valley Project and State Water Project pumping.''

Here is the thing. What you have is a river coming down, and salmon that are coming back from the ocean swim up that river in order to spawn. But along the way are these gates that control water that can move into the delta toward the Central Valley. If those gates are opened, the salmon, instead of going upstream to spawn, get diverted, and it has a big impact on the species, so those gates are kept closed in order to protect the success of the spawning salmon.

This basically says: Do a pilot project and open the gates. Then it proceeds to say that what we will do about that is to collect data on its impact. I will quote again:

[W]ith respect to the operation of the Delta cross-channel gates described in (1), collect data on the impact of that operation on . . . species listed as threatened or endangered.

So it is a direct impact on the Endangered Species Act. It gives permission through this so-called pilot project to open the gates and then to collect data on how much harm it does to the fish. That is very unlike the information that has been presented by some on this floor.

Here is another provision within the 4001 section. It instructs adoption of ``a 1:1 inflow to export ratio for the increment of increased flow,'' and it gives a bunch of details about that, and it says this must happen ``unless the Secretary of the Interior and Secretary of Commerce determine in writing that a 1:1 inflow to export ratio for that increment of increased flow will cause additional adverse effects.''

It doesn't say you can do this 1:1 flow unless it causes adverse effects; it says you can't do this 1:1 flow unless the Secretary of the Interior and Secretary of Commerce say it will cause bad effects. So essentially here is another end run around the biological opinion and around the Endangered Species Act by just giving the Secretary of Commerce and Secretary of the Interior of the incoming administration the power to just let this water be diverted unless they act. That is not something that can be challenged in court because there is no standard being applied for violating the biological opinion, no standard being applied for violating the Endangered Species Act, except the opinion of the Secretary of the Interior and the opinion of the Secretary of Commerce.

Those two things are in section 4001. Let's turn to section 4002.

Section 4002 says essentially there is a range at which a biological opinion allows you to drain a river. When you normally think of water being taken out of a river, you picture the river flowing down, and maybe there is a place where some of that water is pulled out of the river, but the rest of the river keeps flowing on down. But in this case, the amount of water taken out is called a negative flow because it actually ends the river. It pulls the water back. That is very dramatic.

This bill has specific instructions, and in that range of possibilities that might be considered within a biological opinion, they are instructed to pump at the maximum rate, a rate that will not be less negative ``than the most negative reverse flow''--I am reading from this bill--``the most negative reverse flow rate prescribed by the . . . biological opinion.''

So they are instructed specifically not to find the right space within the judgment of the scientists and the biological opinion, but if there has been an estimate--as it could be from here to here--to take the very maximum rate, and this rate is so high that it causes this negative flow of water, which is why they talk about rivers running backward to feed water to the Central Valley.

So that is a precise instruction that changes the normal application and work of scientists who are evaluating the effect, under all the various conditions, of how much water to pull out, and so it very much affects the biological opinion and very much affects the Endangered Species Act.

There is a way that this can be overridden recent, but not by challenging it in court--the only way it can be overridden is if the Secretary of the Interior or the Secretary of Commerce shall document in writing that it is going to go have a very bad impact. So, again, this is giving no recourse to those who see enormous damage to the fish because they have no power. All the power is given to the Secretary of the Interior and the Secretary of Commerce.

Let's go to another section, 4003. The language itself essentially says that the Central Valley projects and the State water projects should take the absolute maximum flow rate that is allowed and then go beyond that.

In section 4002, it was like: Here is the range. Take the top end of the range. Don't use your scientific judgment about where you should really be to protect the fish and the salmon industry. This one says: Here is the range from here to here, but you have to go further, take even more. This is almost unbelievable. I have never seen anything like it.

I will quote: ``authorize the Central Valley Project and the State Water Project, combined, to operate at levels that result in OMR flows more negative than the most negative reverse flow rate prescribed by the . . . biological opinion.''

So when some of my colleagues have come to this floor and said this doesn't affect the biological opinion a bit, yes it does. It says it in plain language. Here is the opinion; you have to be between here and here. And the law, if passed, if adopted, says: No, no, no. Go further, go beyond the range of the biological opinion.
This language is unambiguously inconsistent with the requirements of the biological opinion. It just says in plain, straight language: Ignore it. Go beyond it.

It also says that these transfers through delta water for the State water project can occur even if they violate the 1992 Central Valley Improvement Act--even if they violate it.

So what is in that section (a)(1)(H) of the Central Valley Improvement Act that can be violated? I pulled up that language. Let's just check this out. It refers to contractual obligations or fish and wildlife obligations under this title.

So, in other words, this bill says you can ignore the obligations related to fish and wildlife. So, once again, we see a provision aimed at ignoring the impact upon fish or upon wildlife and authorizing the raiding of water from Northern California for more almonds in the Central Valley.

Now, 20,000 people work in the salmon industry, and a huge part of this are the salmon that come out of these streams--streams that are already compromised. So the reason there is such a profound objection from Senator Boxer of California, from Senator Murray of Washington, from Senator Cantwell of Washington, from Senator Wyden of Oregon, and from me is that this is a blueprint for running over the top of carefully crafted biological opinions designed to prevent the extinction of key species. In this case, it is not just the extinction.

It is also a key commercial enterprise--the salmon industry.
So I am offended that this overrun of the salmon, this permission slip to drain the rivers of the north to feed the Central Valley, is being presented as having no impact on the biological opinions for the Endangered Species Act. It is a full-fledged bulldozer running over the top of the poor protections for the salmon.
This is a terrible precedent for Congress because each time an industry is threatened, there will be those who will point to this precedent and say: Look, when the almond farmers were threatened because they didn't have enough water in the Central Valley, we gave them permission to destroy the salmon. So when something else is threatened, let's give permission to run over some other aspect of the Endangered Species Act or some other aspect of the biological opinion.

This is an unacceptable precedent for anyone who cares about the balance between our commerce and the diversity of species in our States and other competing industries. This is not just almonds against the survival of a species; it is almonds against 20,000 fishermen who depend upon the salmon runs that will be so grievously impacted by this bill.

So I encourage folks to read it. Read the fact that it lays out specific instructions that require the maximizing of water beyond the highest levels already existing within a biological opinion. This is wrong.
I will be opposing closing debate on this bill because this air- dropped provision did not go through the House side, and it did not go through the Senate side. It sets a precedent that should be fully debated in committee. The American people should have a chance to respond and know about this air-dropped provision--an attack on the Pacific salmon--before this Chamber votes on this bill.

Thank you, Mr. President.
I suggest the absence of a quorum.

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