Protecting Water and Property Rights

Floor Speech

Mr. BARRASSO. Mr. President, today I rise in support of Barrasso amendment No. 3453 to the underlying bill. This amendment actually has 36 cosponsors--36 of my fellow colleagues have cosponsored legislation called the Protecting Water and Property Rights Act of 2014, and this legislation is identical to the amendment we have on the floor today.

The amendment restricts the expansion of Federal authority by this administration's EPA to encompass all the wet areas on farms, ranches, and suburban homes all across America. More specifically, the amendment eliminates the administration's proposed rule--a rule to implement this expansion of Federal authority, an expansion which I don't think the Federal Government should have or does have. But we do have a recently proposed rule, and through this proposed rule, Federal agencies are attempting to expand the definition of waters of the United States. They want to expand the definition--it is a specific term, waters of the United States--to now include ditches and other dry areas where water does flow, but only flows during a short duration, basically after a rainfall. Federal regulations have never defined ditches and other upland drainage features as waters of the United States. So this is an expansion of the way we view waters of the United States.

This proposed rule does and will have a huge impact on farmers, ranchers, and small businesses needing to put a shovel into the ground to make a living. The rule, in a sense, amounts to a user's fee for farmers and ranchers to use their own land after it rains. It forces suburban homeowners to pay the EPA and the Army Corps of Engineers to use their backyards after a storm.

To me this is one of the worst things we could ever do to Americans, let alone during this poor economy. That is why the Protecting Water and Private Property Rights Act is endorsed by the American Farm Bureau and the National Cattlemen's Beef Association. It is endorsed by the National Federation of Independent Business and by the American Land Rights Association. They have endorsed this amendment because they know how devastating the rule is to farmers, ranchers, small business owners, and even to homeowners.

This administration claims it is providing flexibility for farmers and ranchers in the proposed rule, but farmers and ranchers across the country who read this are not deceived.

Bob Stallman, president of the American Farm Bureau, released a statement on June 11 of this year stating that ``the rule would micro-manage farming via newly-mandated procedures for fencing, spraying, weeding and more. Permitting meanwhile, could delay time-sensitive tasks for months, potentially ruining crops in the process.''

According to the June edition of the publication National Cattleman in an article entitled ``EPA's Ag Exemptions for WOTUS,'' waters of the United States, the article states: ``Although agriculture exemptions are briefly included, they don't come close to meeting the needs of cattlemen and women across the country.''

The president of the National Cattlemen's Beef Association, Bob McCan, stated in an article:

For example, wet spots or areas in a pasture that have standing water, under this rule, could potentially be affected. We'd now need permission to travel and move cattle across these types of areas.

The article lists some of the major areas of agriculture which are not exempted by the EPA's proposed rule. The article states:

Activities not covered by the exemptions include introduction of new cultivation techniques, planting different crops, changing crops to pasture, changing pasture to crops, changing cropland to orchard/vineyard and changing cropland to nurseries.

Those activities are not included.

The rule also provides no flexibility for investments by small businesses across the country.

According to the National Federation of Independent Business:

Unfortunately, despite claims by the Agencies, the proposed rule will only increase uncertainty.

The proposed rule still requires the Agencies to determine on a case-by-case basis whether many common land formations fall under federal jurisdiction.

Often, this determination does not occur until after substantial investments and planning by a small business have taken place--thus chilling investment and expansion. Small businesses cannot be speculative with their resources and capital.

Private property owners would also face no flexibility. My own constituent, Mr. Andy Johnson, Uinta County, WY, has been threatened by the EPA with penalties calculated to reach an estimated $187,000 a day for building what he believes is a stock pond on his property. In a month's time, he could be liable for more than $5 million in penalties.

What are homeowners to do when faced with this kind of threat? They could choose to fight city hall with limited resources or give in to strong-arming by the Federal Government. Given the Agency's plans to expand the jurisdictional limits of the Clean Water Act, the EPA could easily use the proposed rule to bankrupt small landowners for something as simple as building a pond or a ditch anywhere near a wetland or stream.

Congress never intended for the Clean Water Act to be used this way. To me it defies logic to think this proposed rule will benefit anybody but bureaucrats in Washington who are far removed from the communities between the coasts.

I think it is time for the EPA and Army Corps of Engineers to keep out of the lives of our constituents' backyards, and it is time to do it by opposing the proposed rule.

I wish to end with a broader point about how the Senate operates these days.

Today the Washington Post had an editorial specifically about the legislation, and it is entitled ``Clear rules for clean water,'' which is the proposal I have here today. The editorial board of the Washington Post writes: ``If lawmakers don't like the call the EPA is making''--and I don't like the call the EPA is making--``they should clarify the terminology themselves.''

In an ideal world, I agree with them. If we don't like something, we should be able to propose a better idea and then we should be allowed to vote on it in the Senate. The reality is the majority leader, Senator Reid, has essentially shut down the Senate and refuses to allow us to vote on new ideas that would actually solve challenges such as this one.

In fact, Republicans and Democrats have proposed hundreds and hundreds of amendments, and we have only been able to vote on a very small number of those--and very select ones at that. The truth is the majority leader, Harry Reid, refuses to allow any votes on almost any amendment and is enforcing a gag order on real debate, discussion and, most importantly, on votes. He has imposed a gag order on important issues that impact the lives of all Americans.

To prove my point, I put together a chart. I wish to take a moment to review the voting record over the past full year in this body. This calendar has the headline ``Reid Blocks Votes.'' The Republican votes are in red. We have the last full year of calendar months, and July is down here as the 13th month because we started last year on July 1.

The red Xs are days when there were votes on Republican amendments, and votes on Democratic amendments are in blue. Over the past 12 months--from July of 2013 to July of 2014--Majority Leader Reid has allowed Republicans to vote on their amendments a total of 8 days--8 days out of the entire 12 months there have been votes on Republican amendments. There have been a total of 11 amendments which Republicans have had a chance to offer and have votes on even though we have introduced hundreds of amendments.

It is interesting. Harry Reid has actually been tougher on his own party. The Democrats have been more restricted and more limited. If you look at this calendar, you will see the days in blue. Harry Reid has only allowed Democrats to vote 1, 2, 3, 4, 5 days over this past year that Democrats have had votes on their own amendments on the floor of the Senate. Over that time Democrats have proposed hundreds and hundreds--over 500--of amendments, and there have only been 7 Democratic amendments over the course of 5 days that have had a vote. Democrats have not had a vote on an amendment proposed by a Democratic Senator since March 27. It has been 103 days and counting since the Democrats have had an amendment that one of them has proposed and offered here in the Senate for a vote.

It is so interesting because as I look at the Presiding Officer--of the Democrats newly elected to the Senate in 2012, Members of the Presiding Officer's entire class have not had a single rollcall vote on one of their own amendments on the floor of the Senate--ever. It is an astonishing display of what the majority leader has done to muzzle an entire legislative body of both parties.

I will tell the Presiding Officer I think it is an embarrassing record. It is an embarrassing record for the majority leader, and I think it is an embarrassing record for the Democrats--who control the Senate--to tolerate.

I think it is important for Americans to pay close attention to not just what Senators say when they go home, but actually what happens and what they do and what they stand for and what they vote on.

So I would say the next time Democrats go home and tell their constituents they are introducing legislation to solve a problem, the constituents ought to ask, when? When is the vote? That is what I want to know. When is the vote? When is the vote, Mr. President? When is the vote, Senate Democrats? When is the vote, Majority Leader Reid? When is the vote?

As usual, when the question is asked, silence. That is all we get in return.

So I actually believe we have a majority of Senators, Republicans and Democrats, who would actually vote to pass my amendment. This amendment I have to this bill on the floor--a majority of Senators, Republicans and Democrats, bipartisan, would vote to pass this amendment to stop the EPA's extreme takeover of waters across America. But under Senator Reid's command-and-control style of leadership, I don't think we will ever know. I don't think we will have that vote, and I think Senator Reid will block it.

So I would say that if my colleagues agree with the editorial board of the Washington Post, ``Clear rules for clean water''--today's Washington Post editorial--then they should be able to stand and be counted. Democrats should demand it. In the recent history of the United States, if that history is any indication, as we can see by this embarrassing vote calendar, I am not at all confident that this body will ever be given the opportunity to stand and be counted, and the reason is because Majority Leader Reid won't allow Republicans or Democrats to vote on my amendment or hardly anyone else's amendment.

Thank you, Mr. President.

I yield the floor, and I note the absence of a quorum.

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