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Benjamin C.
Democrat MD

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  • Federal Water Quality Protection Act—Motion to Proceed

    by Senator Benjamin L. Cardin

    Posted on 2015-11-03

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    CARDIN. Mr. President, let me make it clear what this legislation would do. It is true it would stop the final rule on the waters of the United States that has been issued, but it would also change the underlying criteria in the Clean Water Act. So it not only blocks the rule from going forward, it weakens the Clean Water Act. So let me talk a little about both.



    The final rule on the waters of the United States that has been issued restores clarity to the enforcement of the Clean Water Act. It restores it to what was commonly understood before a series of Supreme Court cases that really raised questions as to which water bodies, in fact, can be regulated under the Clean Water Act. The worst possible outcome is the lack of clarity because you don't know. You don't know what the rules are.

    The final rule that has been proposed, and that now is final, would restore that clarity to what was generally understood to be waters of the United States. To say it in laymen's terms, it is waters that lead to, in effect, the water qualities of our streams and our waters and our lakes in America. It affects public health. It affects [[Page S7686]] public health directly by the health of our waters of the United States, as well as providing the source for safe drinking waters.

    So what is at risk? If this final rule is blocked and does not become law, over half of our Nation's stream miles are at risk of not being regulated under the Clean Water Act. Twenty million acres of wetlands are at risk of not being adequately regulated under the Clean Water Act. The drinking source for water for one out of three Americans would be at risk.

    So this legislation would not only block the implementation of the final rule, it would also weaken the Clean Water Act. It would drastically narrow the historic scope of the Clean Water Act, arbitrarily putting in nonscientific standards for how the rules would be developed.

    Mr. President, since the enactment of the Clean Water Act, every Congress has tried to strengthen the Clean Water Act, not weaken it. The Clean Water Act was a piece of bipartisan legislation passed in 1972. As Senator Boxer pointed out, it was in response to rivers literally catching fire and dead zones being found in our lakes.

    In the Chesapeake Bay we had the first marine dead zone that we were trying to respond to. In San Francisco Bay we had PCBs at unacceptably high levels. That is why we passed the Clean Water Act. The legacy of every Congress should be to strengthen the Clean Water Act, to make sure we do have clean waters in the United States. If this legislation were to become law, the legacy of this Congress would be to weaken the Clean Water Act. I don't think we want to do that.

    As I pointed out, this legislation not only rescinds the final clean water rule, but it really changes the goal of the Clean Water Act. Currently, the goal is to ``restore and maintain the chemical, physical, and biological integrity of the Nation's waters.'' That is science based. Instead, it would be changed to protect traditional navigable waters from pollution, which is a far different standard than dealing with the health issues of the waters of the United States.

    The arbiter of this would be the Department of Agriculture on the hydrological science. They are not qualified to do that. It is not their field. As I will point out in detail, the regulatory structure for agriculture is not changed under this final Clean Water Act. And the bill would ignore hydrological science by requiring a continuous flow of water to be regulated, ignoring the fact that there are seasonal variations where you can have water flows that dry up for a period of time but which are still critically important to the supply of clean water in the United States. It ignores the nexus test, which has been referred to in Supreme Court cases, using adjacent water--next to navigable waters--without any definition of what ``next to'' means. It puts public health at risk.

    For all of those reasons, we don't want to jeopardize and move backwards on the Clean Water Act of 1972. We want to add to that. This piece of legislation would, in fact, move us in the wrong direction.

    I just want to, for one moment, talk about the Chesapeake Bay. The people of Maryland and the people of our region know how important it is for our economy--the watermen who make their living off it and the recreational use of the bay. Millions of people every year depend upon the bay for their recreation. It is a way of life for our State and for our region. It is a national treasure--the largest estuary in our hemisphere. And it depends upon receiving clean water supplies that come in from other States, not just Maryland. You can't regulate the clean water of the Chesapeake Bay without having a national commitment to it because it knows no State boundary. That is why we need a strong Clean Water Act.

    I have heard my colleagues talk about agricultural farmers being against this. Well, farmers will not be harmed by the EPA's final clean water rule. In fact, it actually is good for farmers because it provides certainty and clarity. In developing the rule, the EPA and the Army Corps of Engineers listened carefully to input from the agricultural community, the U.S. Department of Agriculture, and the State departments of agriculture. As Senator Boxer pointed out, there were over 400 meetings with stakeholders across the country.

    The act requires a permit if a protected water is going to be polluted or destroyed. However, agricultural activities such as planting, harvesting, and moving stock across streams have long been excluded from permitting, and that won't change under the rule. In other words, farmers and ranchers won't need a permit for normal agricultural activities to happen in or around those waters.

    The rule does preserve agricultural exemptions from permitting, including normal farming, silviculture and ranching practices. Those activities include plowing, seeding, cultivating minor drainage, and harvesting for production of food, fiber, and forest products. Soil and water conservation practices in dry land are preserved. As to agricultural storm water discharges, there are no changes. Return flows from irrigated agriculture, construction, and maintenance of farm and stock ponds or irrigation ditches on dry land are not regulated under this bill. Maintenance of drainage ditches is not regulated. Construction or maintenance of farm, forest, and temporary mining roads are not regulated. It ensures that fields flooded for rice are exempt and can be used for water storage and bird habitat.

    The rule also does preserve and expand commonsense exclusions from jurisdiction, including--this is excluded--prior converted croplands, waste treatment systems, artificially irrigated areas that are otherwise dry land, artificial lakes or ponds constructed in dry land, water-filled depressions created as a result of construction activities, and the list goes on and on.

    The rule does not--does not--protect any types of waters that have not historically been covered under the Clean Water Act. It does not add any new requirements for agriculture. It does not interfere with or change private property rights. It does not change policy on irrigation or water transfers. It does not address land use. It does not cover erosional features, such as gullies, rills, and nonwetland swells.

    In other words, we have maintained the historic exemptions for agriculture from the Clean Water Act. They are not expanded under this rule.

    So let me just cite a couple of quotes from people who are directly impacted by what is being done under the clean water rule and, of course, would be affected by the legislation before us.

    As to the small business community, I quote from David Levine, who is the CEO of the American Sustainable Business Council: The Clean Water Rule will give the business community more confidence that streams and rivers will be protected. This is good for the economy and vital for businesses that rely on clean water for their success. . . . Business owners want a consistent regulatory system based on sound science. That's what this rule provides.

    Ben Rainbolt, executive director of the Rocky Mountain Farmers Union: Water is critical to the livelihood of family farms and ranches. The rule employs a commonsense rationale for both clarifying what bodies of water and activities should fall under the Clean Water Act, as well as maintaining the existing exemptions for agriculture. This rule will result in cleaner, safer water for agriculture, rural communities, and all who count on healthy streams and rivers.

    Andrew Lemley, government affairs representative, New Belgium Brewing: Our brewery and our communities depend on clean water. Beer is, after all, over 90 percent water and if something happens to our source water the negative affect on our business is almost unthinkable. . . . We all rely on responsible regulations that limit pollution and protect water at its source. Over the past 23 years we've learned that when smart regulations and clean water exists for all, business thrives.

    I particularly like that one because we have all seen the ads on television about clean water. It affects small businesses. It affects all of our businesses.

    I will conclude with those who depend upon recreation, who strongly support the clean water rule and oppose the legislation that is before us.

    I will quote from Andy Kurkulis, owner of Chicago Fly Fishing Outfitters and DuPage Fly Fishing Company: Anyone who has ever swam in our beautiful Great Lakes, or fished or boated on our abundant rivers and waters has benefited immeasurably. Now is the time to raise our voices in support of clean water--our economy, and future generations of hunters and anglers, depend on it.

    [[Page S7687]] I think the verdict is clear. The rule which has been proposed will add to the protections the public deserves for public health and their drinking water. It is a sensible regulation. It is clearly under the authority of the Clean Water Act.

    I urge my colleagues to reject this legislation and certainly the cloture motion so that we don't reject the rule and weaken the Clean Water Act.

    I yield the floor.

    The PRESIDING OFFICER (Mr. Flake). The Senator from Wyoming.

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