Energy and Water Development and Relaed Agencies Appropriations Act, 2016

Floor Speech

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Mr. Chairman, the amendment is very simple. It strikes section 104 of this bill.

Section 104 would prevent the Army Corps of Engineers from updating regulations pertaining to the definitions of ``fill material'' or ``discharge of fill material'' for the purposes of the Clean Water Act.

When Congress first enacted the Clean Water Act, and for nearly 35 years after its passage, the law kept America's lakes, rivers, and streams safe from mining pollution, protecting our wildlife and our drinking water. That is no longer the case today.

My amendment would remove this anti-Clean Water Act rider. Current and future administrations should have the flexibility to change the definitions of ``fill material'' or ``discharge of fill material'' should they wish to.

When Congress first enacted the Clean Water Act, the 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.

Under a 2002 rule change, the definition of ``fill material'' was broadened to include: ``rock, sand, soil, clay, plastics, construction debris, wood chips, and 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 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, and 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 the existing definitions 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 is a preemptive strike against protecting our drinking water, and since there is no time limit on the provision, it would not only block the current Obama administration, but any future administration from considering changes.

I urge my colleagues to support my amendment and to strike section 104 from this bill.

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Mr. Chairman, my amendment would simply strike section 105. As it stands, section 105 would prevent the Army Corps of Engineers from finalizing its proposed regulation clarifying the limits of Federal jurisdiction under the Clean Water Act.

This language is not new. I understand we have seen it a number of times. The difference is that the conversation has since progressed, and almost everyone agrees that clarity is needed. Calls for the EPA to issue a rule even came from such notable organizations as the National Cattlemen's Beef Association, the American Farm Bureau Federation, the Western Business Roundtable, and the National Association of Manufacturers.

Prohibiting EPA from finalizing the rule, as section 105 would direct, would perpetuate this confusion, and there are countless cases that reiterate this point.

For example, the EPA acknowledged enforcement difficulties in a case in which storm water from construction sites carried oil, grass, 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 only flow 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.''

We need to end the confusion and, through a public comment process and appropriate congressional oversight, allow the administration to move forward and complete a formal rulemaking.

It also needs to be said that the opponents of the Clean Water rule have it wrong. The proposed rule respects agriculture and the law by maintaining all of the existing exemptions for agricultural discharges and water. 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.

The administration has a strong, commonsense plan to make clean water a priority by protecting the sources that feed the drinking water for more than 117 million Americans.

If Congress blocks this proposal to protect clean water, 20 million acres of wetlands nationwide will continue to be at risk. Stopping this proposal will also impact the small businesses and communities that rely on clean water.

American businesses need to know when the Federal Government has authority and when it doesn't, and without updated guidance, businesses will often not know when they need Army Corps of Engineers permits. This uncertainty could subject them to civil and criminal liability and will certainly cost them extra money.

The clean water rule will largely restore but not expand historic coverage of the Clean Water Act at no direct cost to the public. EPA estimates that the clean water rule would provide up to $514 million annually in benefits to the public.

Updating the rules and guidance is essential. We need to allow EPA and the Corps to do their job and clarify their rules and guidance. If they fail to do it in accordance with existing law, more lawsuits will ensue.

Overall, these anti-Clean Water Act riders are part of an effort to return us to a time when we had no uniform national minimum clean water standard and States had conflicting policies or no policies at all. That was a time when rivers were so polluted, they caught fire, and responsible downstream States suffered the consequences of lax or weak upstream States' policies.

Today we have cleaner, more drinkable waters precisely because of the Clean Water Act.

I urge my colleagues to oppose this clean water rider and support our amendment.

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