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Mr. VITTER. Madam President, I rise to very briefly agree with two key points made by my colleague from Louisiana. First of all, as far as the substance of this amendment goes, I wholeheartedly agree with her, and that is why I am a sponsor of this amendment as well.
We will visit this issue again because it is vitally important that we get it right--not just for the tens of thousands of folks from Louisiana but for millions of Americans across the country. We need to get this right, and we don't yet have it right.
Secondly and also very importantly, I absolutely agree that we should have debate and votes on the Senate floor. I don't think any Member should object to just having a vote on a matter.
My colleague, the Senator from Pennsylvania, has been a leading advocate to have an open amendment process on the Senate floor, to allow votes, and I agreed with that. I fought with the chair of the committee to have an open amendment process in the context of this bill, and we got it. Now, at the end of the day, he objects to even having a vote on a particular amendment he doesn't like. The Senator cannot have it both ways. If the Senator wants an open amendment process on the floor, as I do, then he will have to accept that he may have to take votes on amendments he doesn't agree with. I accept that; I wish he would accept that. I hope it will continue and grow from here.
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Mr. VITTER. Mr. President, first of all, let me thank my colleague from California, the chair, and all of my colleagues for allowing us to move forward with a very open amendment process. It is not quite as open a process as I would have wanted--namely on the Landrieu amendment because of the objection from my colleague from Pennsylvania. By any Senate standard, this has been a very open amendment process, and that is very healthy.
I join the chair in urging all of our colleagues who would like to debate upcoming votes to come to the floor now. The time is between now and 5 p.m. Please come to the floor. I am doing that right now. I want to talk about one of those amendments on which we will vote, the Barrasso amendment, which is about waters of the United States. This is an important issue.
John Barrasso and I and many others believe the EPA should not be able to define and expand its regulatory jurisdiction--in this case, we are talking about the Clean Water Act--without undertaking a formal rulemaking process that provides individuals, businesses, and other stakeholders the opportunity to give meaningful input.
The Clean Water Act authorizes the EPA to regulate the discharge of pollutants into ``navigable waters.'' Again, that is a very clear term--``navigable waters.'' The act defines ``navigable waters'' as ``the waters of the United States, including the territorial seas.'' The trouble is clearly understanding what constitutes the waters of the United States. For decades, courts have considered the meaning of ``the waters of the United States,'' and yet uncertainty still remains.
Recently, in 2006--about 7 years ago--in the Rapanos decision, the Supreme Court considered whether the Army Corps of Engineers properly determined the wetlands in Michigan as being waters of the United States. Although the Court determined that the corps viewed its regulatory authority under the Clean Water Act too broadly, a majority of the Justices still could not come to a precise agreement into exactly what ``waters of the United States'' means. So they agreed about what it didn't mean in the context of that case--that the corps had gone too far afield--but they didn't clearly agree on exactly what it meant.
More recently, Justice Alito, in the Sackett case, observed that the reach of the Clean Water Act remains ``notoriously unclear.'' Justice Alito and others have called on Congress to examine the Clean Water Act statutory language to make it precise and clear up the confusion. He also noted that EPA ``has not seen fit to promulgate a rule providing a clear and sufficiently limited definition of the phrase''--that phrase being ``the waters of the United States.''
Instead, the EPA has done something different. Unfortunately, this is a trend at the EPA. The EPA issued what it calls guidance on this issue. Now, according to the EPA, the guidance ``clarifies how the EPA and Corps understand existing requirements of the Clean Water Act and the agencies' implementing regulations'' in light of relevant decisions.
The problem is this: Guidance is short of what the EPA should do, which is to promulgate rules and regs. It is short of that for a very particular reason--because there is no clear-cut, nailed-down process for guidance. The EPA can just make up what it wants without having to take input from affected parties. Under the law, there are clear-cut guidelines and rules for promulgating rules and regulations, and that is what the EPA should do.
In this instance, there are two problems. First of all, the guidance is simply mistaken. It is way too expansive, in the view of many folks, including myself and the author of this amendment, Senator Barrasso. Also, very importantly, guidance doesn't have to go through a process. Guidance doesn't illicit input from citizens, impacted parties, and stakeholders.
That is another crucial issue involved.
This Barrasso amendment would clear up that point on two fronts. It would go to the substance of the guidance--and we think EPA is getting it wrong with regard to that substance--but it would also help underscore that there is a process for the EPA to issue rules and regulations, and that is what the EPA should be doing on important matters such as this--not shortcutting, circumventing that process by simply issuing guidance.
So if the EPA wishes to examine the meaning of ``waters of the United States'' in the Clean Water Act, it needs to do so in a fair and transparent manner, and in a way that provides all Americans the chance to offer meaningful regulatory input. Guidance doesn't do that. This guidance gets it wrong. But, just as importantly, guidance doesn't fulfill the need for transparency and openness and the ability to accept input. This Barrasso amendment would provide EPA with precisely that opportunity: Make them accept input and make them get it right. That is why I strongly support the Barrasso amendment.
Again, I invite all of our colleagues to come down to the floor to debate any part of this bill, any aspect of pending amendments. We are open for business now until 5 p.m. I think that is going to be a lot of time. We will have a series of votes starting today and going into tomorrow, and I very much appreciate the chair of the committee and others who have allowed this very open amendment process on the floor of the Senate.
With that, Mr. President, I suggest the absence of a quorum.
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