Videos & Speeches
Nov 04 2015
Mr. President, this week has been devoted legislatively to discussing and considering legislation affecting an EPA regulation called “Waters of the United States”. It is one more example of executive overreach by an increasingly unaccountable federal agency.
I want to speak about our efforts here on the Senate floor this week and again encourage my colleagues to continue the effort to make certain this overreach is responded to by Congress. The courts have spoken, but we want to make certain that we do our job.
One of the criticisms I hear so regularly from people who support this regulation is that: “Don't you care about water quality? Don't you care about clean water?” I absolutely think it is important to protect our Nation's waterways. If you are a Kansan, water is life; water is the future of your community. Water matters greatly, but we are not against clean water.
Agriculture producers, which dominate my state, across the area of Kansas, they are strongly opposed to this regulation, but they are certainly not opposed to the efforts to keep our water supply safe and clean. Most Kansas farmers and ranchers hope to pass their land and their operations – their farming operations – on to their kids and grandkids. It serves their interests to preserve the land and water in which their family farms are tethered. It’s not the Washington lobbyists and the environmental radicals who are telling Americans that if you oppose this regulation, you are opposed to clean water. That’s what they say. Kansans care greatly and farmers – particularly landowners – who want their children to enjoy their farm or ranch in the future care greatly about clean water.
It’s the EPA's abusive regulatory path, characterized by fines, penalties, potential civil lawsuits against landowners that gives us major cause for concern. The federal government should not dictate to citizens how they manage their private lands.
I believe there are better ways to promote water quality than with threats of severe fines, penalties or even jail time. One of the ways that we see this effort take place is through the Department of Agriculture's Natural Resource Conservation Service. NR[CS] promotes soil and water health not by mandates and threats from Washington, but through collaborative voluntary approaches that encourage conservation through incentives and on-the-ground technical assistance for those landowners.
Unlike the EPA, that seems to view agriculture producers as untrustworthy partners who must be forced into caring for the land, NR[CS], as well as the USDA Farm Service Agency’s efforts, are successful in large part because they operate under the recognition that farmers and ranchers are devoted stewards to their land.
Policies like Grassroots Source Water Protection Program and the Environmental Quality Incentive Program are examples of voluntary approaches that incentivize innovation, and provide technical assistance, and more broadly promote clean water through localized, cooperative efforts. Compare those approaches to what we are debating on the floor today and earlier this week—an overly broad, overly complex, overly ambitious regulation drafted by an agency that has shown a complete unwillingness to listen or to work with landowners.
This regulation is pretty straightforward. If it’s water, EPA has the authority to regulate it unless it decides it doesn't want to. Again, what this regulation says basically is if it’s water, EPA has the authority to regulate it unless EPA decides they don’t want to do it.
First, EPA declares that all “tributaries” are waters of the United States. Tributaries are defined as anything with a bed, banks or an ordinary high-water mark regardless of the frequency or duration of the water flow. This kind of definition is so broad and all-encompassing that the EPA can assert jurisdiction over streams and ditches that may flow only for a few hours following a rainstorm.
This regulation also controls waters that are “adjacent” to any water that is under EPA's jurisdiction, including 100-year-old floodplains. And if somehow water could still escape the EPA’s long shadow, its broad definition, they came up with yet one more way to regulate it. The regulation states that if waters aren't adjacent or they’re not tributaries, they can still regulate if there is “significant nexus” between the waters EPA wants to regulate and navigable or interstate water. What that means is that every drop of rain can be regulated because every drop of rain always ends up some place in a body of water that’s navigable. All EPA has to do is establish some connection between the two and they’ve granted themselves the authority to regulate the waters.
With its significant civil fines and criminal penalties for those not in compliance, you can see why so many Americans are concerned. Last year, EPA went on a public relations campaign of sorts to convince stakeholders and to convince people across the country that they only meant to clarify, not expand, the regulation. Instead of lecturing, the EPA should have listened. The EPA should have listened to the overwhelming feedback they received from constituents, including many in Kansas who attended a meeting in Kansas City. The EPA should have scrapped the rule and started over.
Now we have learned that not only did the EPA ignore the outcry of the American people, but also disregarded the technical experts at the Army Corps of Engineers who described the rule as “not reflective of the Corps’ experience or expertise.” Again, the Corps is the agency that the EPA is to work with to develop the rules. They are the experts and they say this rule is not reflective of the Corps’ experience or expertise. The Corps says it is not accurate. The Corps says it is not supported by science or law. The Corps says it is inconsistent with the Supreme Court's decision. The Corps says it is regulatory overreach.
It is obvious that the regulation exceeds the EPA’s legal authority under the Clean Water Act. It is equally obvious that the EPA intended to run roughshod over anyone who disagreed.
Mr. President, The “Waters of the U.S.” regulation is, in short, a breathtaking abuse of power and it is something Congress needs to address.
For too long, Congress has looked the other way when this executive or any other occupant of the White House exceeds their congressionally mandated legal authorities. Somehow in our country, Republicans looks perhaps the other way when there is a Republican President and Democrats look the other way when there is a Democrat President and the reality is that Congress needs to play its constitutional role in determining what the law is and prevent the abuse that comes from a White House that exceeds that legislative authority day after day.
This decision – the EPA's regulations – ignores two Supreme Court opinions. It ignores a time-honored understanding of what the law does and does not permit in the way of regulation as evidenced by numerous legislative attempts to reject by Congress and to amend the Clean Water Act that the Obama Administration does by regulatory action. It ignores the serious repercussions for farmers and ranchers, for electric cooperatives who provide electricity to people across my state, to the oil and gas industry that provides jobs across Kansas, to the homebuilders who provide homes for Kansans and many other small business owners in our state and across the country. And it ignores the concerns voiced by so many more including state and local officials across Kansas and our nation.
At the end of the day, if the goal is to promote clean water and responsible land management, there is a much more effective method to do so as evidenced by the voluntary cooperative efforts within USDA that respect private property rights, incentivize conservation rather than criminalize landowners and don't threaten to do irreparable harm to our country and to the jobs Kansans so desperately need.
Mr. President, I urge my colleagues to block this regulation and to force the EPA and the Army Corps of Engineers to work with state and local officials and those affected by the regulation in promoting real waters of the United States. We must protect those waters. We should do it much differently than the Environmental Protection Agency proposes.