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John T.
Republican SD

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  • Federal Water Quality Protection Act—Motion to Proceed

    by Senator John Thune

    Posted on 2015-11-03

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    Read More about Federal Water Quality Protection Act--Motion to Proceed

    THUNE. Mr. President, Americans have had a tough time during the Obama administration with a sluggish economic recovery that is barely worthy of the name, stagnant wages for middle-class families, a health care law that ripped away millions of Americans' preferred health care plans, and burdensome regulations that have made it more challenging for businesses, large and small, to grow and create jobs.

    One Agency has done more than its fair share to make things difficult for Americans, and that is the Obama EPA. During the course of the Obama administration, this Agency has implemented one damaging rule after another--from a massive national backdoor energy tax that threatens hundreds of thousands of jobs to unrealistic new ozone standards that have the potential to devastate State economies. Reputed rebukes from various Federal courts have done little to check the EPA's enthusiasm for crippling, job-destroying regulations.

    This week, the Senate is taking up legislation introduced by my colleague from Wyoming Senator Barrasso to address one of the EPA's biggest overreaches--the so-called waters of the United States regulation. The EPA has long had authority under the Clean Water Act to regulate ``navigable waters,'' such as rivers, lakes, and major waterways. The inclusion of the term ``navigable'' in the Clean Water Act was deliberate. It was deliberate. The reason it was put there is because Congress intended to put limits--real limits--on the Federal Government's authority to regulate water and to leave the regulation of smaller bodies of water to the States. Defining the waters to be regulated as navigable [[Page S7691]] waters ensured that the Federal Government's authority would be limited to bodies of water of substantial size and would not infringe on minor bodies of water on private land, but over the last few years it became clear the EPA was eager to expand its reach.

    The waters of the United States regulation, which the EPA finalized this year, expands the EPA's regulatory authority to waters such as small wetlands, creeks, stock ponds, and ditches--bodies of water that certainly don't fit the definition of ``navigable.'' It specifically targets the prairie pothole region, which covers five States, including nearly all of eastern South Dakota.

    If we look at this chart, this is something that is a very normal landscape in South Dakota. It is a field that one would see in South Dakota, and of course when it gets some rain, some of the low-lying areas get a little water in them, but this is basically a puddle. If we look at what the regulation would do to the way in which farmers and ranchers manage and are able to use their lands for production agriculture, it has some profound impacts.

    We are not talking about lakes and rivers. We are talking about small, isolated ponds that ranchers use to water their cattle or prairie potholes that are dry for most of the year but do collect some water after heavy rains and snows along the lines of what we see in this photo. Under this regulation, even dry creekbeds could be subject to the EPA's regulatory authority. That is how far-reaching this regulation is.

    Let me talk about that authority for just a minute. When we talk about a body of water coming under the EPA's regulatory authority, we are not talking about having to follow a couple of basic rules and regulations. Waters that come under the EPA's jurisdiction under the Clean Water Act are subject to a complex array of expensive and burdensome regulatory requirements, including permitting and reporting requirements, enforcement, mitigation, and citizen suits. Fines for failing to comply with any of these requirements and regulations, such as the one that is now being filed by the EPA, can accumulate at the rate of $37,500 per day.

    Under the EPA's new waters of the United States rule, creeks and ditches would be subject to this complex array of regulations. The irrigation ditches in a farmer's cornfield, for example--ditches where the water level rarely exceeds a couple of inches--would be subject to extensive regulatory requirements, including costly permits and time- consuming reports. Needless to say, these kinds of requirements will hit farmers and ranchers hard. Agriculture is a time-sensitive business, and these types of requirements would strain a farmer's ability to fertilize, plant, and irrigate their crops when the seasons and weather conditions dictate.

    Farmers can't afford to wait for a Federal permit before carrying out basic land and resource management decisions. I have received numerous letters from South Dakota farmers and ranchers, as well as local governments, expressing their concern with the EPA's new rule. One constituent writes: We live in Deuel County, South Dakota, where we raise cattle and plant wheat, alfalfa, corn, and soybeans. . . . Our land consists of rolling hills and many shallow low spots. . . . According to the new rules, our entire farm would be under the jurisdiction of the EPA. . . .

    That same constituent goes on to say: Mandatory laws by the EPA are just wrong and are often written and enforced by someone who has never lived or worked on a farm and doesn't understand how the forces of nature cannot be dictated. The weather is often extreme, and we must work with it. . . . Under this rule, it will be more difficult to farm and ranch, or make changes to the land even if those changes would benefit the environment.

    That is from a constituent from my State of South Dakota.

    Another constituent, also from my home State, said: [O]ur business is going to be put into acute peril if the EPA is not stopped. . . . By removing the word ``navigable'' from the Clean Water Act, they will be in control of EVERY drop of water in the United States, which is disastrous for those of us engaged in farming and ranching.

    This is from the Pennington County Board of Commissioners in South Dakota. Pennington County is the second largest county and home to our second largest city, Rapid City. They wrote: In addition to tourism, agriculture is a critical piece of our local economy. . . . This proposal would cause significant hardships to local farmers and ranchers by taking away local control of the land uses. The costs to the local agricultural community would be enormous. This would lead to food and cattle prices increasing significantly.

    The board also warned: If stormwater costs significantly increased due to this proposed rule, not only will it impact our ability to focus our available resources on real, priority water quality issues, but it may also require funds to be diverted from other government services that we are required to provide such as law enforcement, fire protection services, etc.

    I have received letter after letter like these from farmers, ranchers, business owners, and local governments across my State, and they are not alone. Concern is high across all of the United States. That is why 31 States have filed lawsuits against the EPA's regulations, as have a number of industry groups. The courts have already granted them some temporary relief. Last month, the Sixth Circuit Court of Appeals expanded an earlier injunction and blocked implementation of the EPA's rule in all 50 States, but a final decision of the courts could be years away.

    To protect Americans affected by this rule from years of litigation and uncertainty, this week the Senate is taking up the Federal Water Quality Protection Act, introduced by Senator Barrasso, which would require the EPA to return to the drawing board and write a new waters of the United States rule in consultation with States, local governments, agricultural producers, and small businesses. It seems only fitting that you actually ought to consult with the people who are impacted by this. If that had happened, maybe there wouldn't be 31 States that have already filed lawsuits against the Federal Government, and maybe we wouldn't have all of these local governments, agricultural producers, small businesses, homeowners, and developers that are mortified about the impact this will have on them.

    In my time in Washington, I have never seen an issue that has so galvanized opposition all across the country. Sometimes there might be an issue that might affect a specific area or industry sector in our economy, such as agriculture. We talk a lot about those issues in my State because this is our No. 1 industry, but there is rarely an issue which generates opposition from so many sectors of our economy. That is how far-reaching this regulation is. Arguably, this is the largest Federal land grab in our Nation's history.

    What the legislation also does is explicitly prohibits the EPA from counting things like ditches, isolated ponds, and storm water as navigable waters that it can regulate under the Clean Water Act. It takes away these things we are talking about--the stock ponds, ditches, and frankly the puddles--from areas that the EPA can assert its jurisdiction in and regulate.

    Everybody agrees on the importance of clean water. Farmers in my State depend on it, and the legislation we are considering today will ensure that the EPA retains the authority to make sure our lakes and rivers are clean and pollutant-free. Members of both parties should be able to agree that allowing the EPA to regulate what frequently amounts to seasonal puddles is taking things a step too far. The cost of this rule will be steep, and its burdens will be significant, impacting those who have an inherent interest in properly managing their water to protect their livelihoods and health.

    Back in March, a bipartisan group of 59 Senators voted to limit the EPA's waters of the United States power grab, and 3 Democratic Senators are cosponsors of the legislation before us today. It is my hope that more will join us to protect farmers, ranchers, small businesses, and homeowners from the consequences of the EPA's dangerous new rule.

    Americans have suffered enough under the Obama EPA. It is time to start reining in this out-of-control bureaucracy. I hope we will have a big bipartisan vote today in support of the legislation before the Senate.

    I yield the floor.

    The PRESIDING OFFICER. The Senator from Indiana.

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