Mr. Chairman, I thank my friend and our ranking member from West Virginia for yielding and for his leadership on the T&I Committee. Mr. Chairman, I rise in strong opposition to H.R. 5078. Last session, the Republican majority pushed…
Mr. Chairman, I thank my friend and our ranking member from West Virginia for yielding and for his leadership on the T&I Committee.
Mr. Chairman, I rise in strong opposition to H.R. 5078. Last session, the Republican majority pushed through a rider to the Energy and Water Appropriations bill to block this administration from using Agency guidance to clarify how they would interpret two confusing decisions of the U.S. Supreme Court that called into question the protections of the Clean Water Act over our Nation's waters.
At that time, the Republican majority claimed that this use of administration guidance was unprecedented and in violation of the law, notwithstanding the fact that the previous administration followed the exact same process in issuing two guidance documents which, coincidentally, remain in force today. In fact, it is these two Bush- era guidance documents that have compounded the confusion, uncertainty, and increased compliance costs faced by our constituents today.
But don't take my word on this. Let me quote from some of the comments made in opposition to the Bush-era guidance. According to the American Farm Bureau Federation and others:
With no clear regulatory definitions to guide their
determinations, what has emerged is a hodgepodge of ad hoc
and inconsistent jurisdictional theories.
Again, according to the American Farm Bureau Federation and others:
The Bush administration guidance is causing confusion and
added delays in an already burdened and strained permit
decisionmaking process, which ultimately will result, and is
resulting, in increased delays and costs to the public at
large.
Finally, according to the Waters Advocacy Coalition:
Until a comprehensive set of rules regarding which water
bodies the agencies will regulate is promulgated, the public
and Agency field staff will be beleaguered by partial
answers, confusing standards, and ad hoc, overbroad, and
arbitrary decisions pertaining to the scope of Federal
jurisdiction.
In April of 2011, over 150 Members of this House wrote to the Environmental Protection Agency and to the Corps requesting that a proposed guidance document of the Obama administration be reconsidered. In that letter, these Members suggested:
If the administration seeks to make regulatory changes to
the Clean Water Act, a notice-and-comment rulemaking is
required.
In the intervening months, this is exactly what the administration has done. In 2012, the administration chose to withdraw the proposed 2011 guidance document and instead pursued a notice-and-comment rulemaking to address much of the confusion, uncertainty, and increased costs surrounding the scope of the Clean Water Act protections.
However, many of these same Members who asked for a formal rulemaking are now vehemently opposed to this rulemaking going forward. I have to ask why? Are these Members opposed to providing greater clarity on the scope of Federal Clean Water Act protections? Are they opposed to trying to reduce the confusion and uncertainty facing our regulated communities while at the same time trying to ensure that our network of waters and wetlands are protected from pollution or destruction?
Opponents of this rulemaking are trying to portray this as a Federal attempt to regulate birdbaths, puddles, and driveways, but both common sense and the testimony of representatives of the EPA and the Corps before our committee would confirm that these were never subject to Clean Water Act jurisdiction, nor would they be subject to the act under the administration's proposed rule.
In short, this is not a debate about the Federal Government trying to regulate someone's backyard birdbath, but it is about ensuring that those waters and wetlands that provide hundreds of millions of Americans with their drinking water, provide vital protection to our towns and communities, and provide valuable habitat to our native fish and wildlife are protected.
Mr. Chairman, to be fair, several of my own constituents have expressed concern with the substance of the proposed rule. I have listened to their concerns, and I have pressed the Agency witnesses who have appeared before our subcommittee on several critical areas. I have questioned the agencies to ensure that the scope of the proposed rule lives solely within the confines of the two Supreme Court decisions on this matter; otherwise, such changes would require an act of Congress.
Mr. Chairman, I have asked for Agency assurance that this proposed rule does not expand the scope of the Clean Water Act jurisdiction over what was covered by prior rulings of the Supreme Court. Again, I have been assured that this is the case.
I have asked the Agency staff to clarify that these proposed rules do not eliminate any existing statutory or regulatory exemptions for agriculture, including activities on prior converted cropland. Again, we have been assured by the Agency that all of the existing exemptions for farming, silviculture, and ranching in the current Clean Water Act and regulations remain in place.
In my view, this is not a perfect proposed rule--few are--but it does establish a reasonable process for providing additional clarity on Clean Water Act protections that we desire. To suggest that the solution is to simply throw out this proposed rule and to forever leave the regulated community with the current regulatory morass simply makes no sense.
Mr. Chairman, I urge a ``no'' vote on H.R. 5078. I thank the ranking member for his indulgence.
Mr. Chairman, I have an amendment at the desk.
Mr. Chairman, my amendment gets to the heart of the debate on this proposed rule.
For months, opponents of the proposed rule have made numerous claims about its impacts. Yet, despite numerous efforts by representatives of the administration's to answer these claims and to point out how many of these claims are simply false, we seem to go around and around, again and again, on these allegations. My amendment simply addresses these concerns and claims, saying that, if any of them prove to be true, then the Secretary and the Administrator are prohibited from issuing any final rule that would bring about these occurrences.
For example, opponents of the proposed rule have claimed that this rule expands the scope of the Clean Water Act authority. When asked this direct question during our subcommittee hearing, the administration's witness stated clearly that the proposed rule ``would not assert jurisdiction over any type of waters not previously protected over the past 40 years.'' Under my
amendment, if the administration is proven incorrect, the final rule could not be implemented.
Similarly, opponents have suggested that the rule is inconsistent with the rulings and jurisdictional tests outlined by the Supreme Court. The administration's witness has testified that this rule is consistent with the tests outlined by the U.S. Supreme Court. If my amendment is adopted and if the administration is wrong about this assertion, then the final rule could not be implemented.
Opponents of the proposed rule have claimed that the proposed rule increases the regulation of ditches. The administration has testified that, in fact, it would reduce the scope of jurisdictional ditches that are covered by the Bush administration guidance. If my amendment is adopted and if the administration is incorrect in this assertion, the rule cannot be implemented.
Opponents contend that, under this rule, individuals would be required to have Federal Clean Water Act permits for draining farm ponds or for activities in the water on your driveways or your birdbaths or puddles in your backyard. The administration has asserted, obviously, that these types of waters have never been subject to the Clean Water Act, nor would they be under this rulemaking. If somehow the administration is wrong about this, under my amendment, the final rule could not be implemented.
Lastly, opponents contend that the rule would eliminate existing statutory and regulatory exemptions for agriculture or increase the regulation of groundwater or require Federal Clean Water Act permits for land-use activities. Yet the administration has time and time again testified that these assertions are simply inaccurate. Again, if my amendment is adopted and if the administration is incorrect, the final rule cannot go forward.
In my view, this administration has put forward a good faith effort to provide additional clarity on the scope of Clean Water Act protections for our Nation's waters that are consistent with current scientific information as well as the precedent of the Supreme Court. While it is not perfect, this rule is far better than the current regulatory process that has led to numerous delays, significant increases in compliance costs, and greater difficulty in protecting our Nation's water resources.
I urge the adoption of my amendment, and I reserve the balance of my time.
Mr. Chairman, I yield whatever time I have remaining to the gentleman from Oregon (Mr. DeFazio).
Mr. Chair, I demand a recorded vote.
Mr. Chairman, I have an amendment at the desk.
Mr. Chairman, my amendment would address one of the fundamental flaws I see in this legislation. The enactment of H.R. 5078 would almost certainly block current and future efforts to clarify the scope of the Clean Water Act.
Unfortunately, this would lock in place the interpretive guidance of the Bush administration, which took the narrowest and most cumbersome and confusing interpretation of the two recent Supreme Court decisions, and it has been uniformly criticized by the stakeholder community as well as by the conservation and environmental community.
I think it is important to remember that, under the current Bush administration's guidance, traditional Clean Water Act protections over a significant percentage of waters has been called into question or have simply been lost. These are Clean Water Act protections that existed for over 30 years prior to the issuance of the first Bush-era guidance in 2003 and are now all but lost, making it harder and more costly for individual States to protect their own waters should their upstream neighbors be unwilling or unable to fill in the gap in protecting water quality.
As we all know, if pollution is allowed to increase due to the competing financial and political interests of States, that pollution needs to go somewhere, and since pollution does not respect State boundaries when it travels downstream, it will have an adverse impact on the quality of life and the quality of the environment of those downstream States. As highlighted in my amendment, the end result of this will be that downstream States will become responsible for treating the pollution of their upstream neighbors, which, at a minimum, will increase the compliance costs of downstream States and, at a maximum, may destroy the ecological or economic health of these States.
As I have noted before, my district in New York is separated from Connecticut by the Long Island Sound. Over time, the number of polluters in the area has increased exponentially, killing fish, lobsters, and imperiling the $5 billion of economic output that the region depends upon. Fortunately, the State has decided that the Sound was impaired, and it proposed a more restrictive water quality standard for nitrogen. A $5 billion crisis has been averted. However, under the current Bush-era guidance, questions have arisen as to whether the Clean Water Act protection continues to apply to the upper reaches of watersheds, streams, and wetlands which feed the rivers that eventually flow into the Sound.
Under H.R. 5078, the EPA would be prohibited from ensuring that polluters in Connecticut continue to reduce excessive amounts of nitrogen in the Sound, leaving my constituents in the State of New York without any recourse under the Clean Water Act to stop them.
If this bill were to pass, individual States would decide that collective efforts to address the water quality impairments of the Chesapeake Bay, the Puget Sound, the Great Lakes, or the Gulf of Mexico were unnecessarily restrictive or burdensome, and they would refuse to participate in a meaningful way towards the restoration of these regional water bodies. This go-it-alone approach flies in the face of science, of common sense, and of decades of experience in implementing the Clean Water Act.
My amendment would limit the impact of this legislation if the administration determines that this bill were likely to, one, increase the interstate movement of pollutants through surface waters; two, increase the costs incurred by a downstream State to maintain or achieve approved water quality standards for that State; or three, to cause or contribute to the impairment of the surface or coastal waters of another State.
The Committee on Transportation and Infrastructure created the Clean Water Act over 40 years ago as a response to burning rivers, to Great Lakes that were pronounced dead, and to an understanding that a State- by-State approach to protecting water simply didn't work.
Let's not repeat the sins of the past but commit to moving forward in our efforts to protect the Nation's waters. Support my amendment, and allow the Agency to put back in place reasonable, comprehensive protections of our Nation's waters.
I reserve the balance of my time.
I yield back the balance of my time.
Mr. Chairman, I demand a recorded vote.