Providing for Congressional Disapproval of a Rule Submitted by the Corps of Engineers and the Environmental Protection Agency

Floor Speech

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Mr. ISAKSON. I think we probably would, and that is why I brought it up, and I look forward to that.

We are hear to talk about the rule for the waters of the United States undertaken by the EPA.

When I started working this afternoon and preparing myself for what I would say to try to make my point and express myself, I listened at 3 p.m. to the speech by Senator Ben Sasse from Nebraska. Today he made his maiden speech on the floor of the Senate. Because I had an important appointment to get to, I do know exactly how long he spoke. He spoke for 27 minutes--because that is how late I was for my appointment. But his speech was so good and so important and it affected so much this rule of the waters of the United States that I wanted to include it in my remarks tonight.

What Senator Sasse said very simply is this: In his 1 year in the U.S. Senate, observing the Senate and how it operates, how we all operate, he went back to his constituents and spoke to them. One thing he talked about is how we are moving more and more toward the government of an executive branch and a judicial branch and moving away from the legislative branch. We have administrations like the current administration which is trying to enforce the law through administrative rules and executive orders, not through legislation. He didn't just point out that being a Democratic situation, it is Republican as well.

If we look over the last 35 years, there has been a growth in the number of edicts that have come down regulatory-wise rather than legislatively. It is important for us to return the legislative branch of government to its appropriate place so we have a balance between legislative, executive, and judicial.

I use the waters of the U.S.A. rule to explain to my colleagues why that is so important. This is a horrible rule. It is a rule that is going to be litigated in court for the next 30 to 40 years. Why? Because the clean water bill, which is its predecessor, has been litigated for 30 or 40 years, and eventually we have come to good water policies--not because that is where we started, it is because that is where we ended.

I wish to take a few experiences that I had working on the Clean Water Act in the 1970s, 1980s, and 1990s to make the point of why the waters of the United States bill is so dangerous.

The Clean Water Act passed with almost unanimous support. There was some opposition. Almost everybody said: I can't be against clean water; everybody wants clean water. But then there is the word ``promulgate.'' We passed a law that expressed the intent of Congress, and then we said it is up to the agencies responsible for promulgating the laws, the rules, and regulations necessary to carry out the intent of the law. Therein lies the problem because agencies like the EPA start promulgating rules which take the force and effect of the law, which cause the wrong thing to happen.

Let me tell my colleagues what is going to happen with the waters of the U.S.A. if it becomes a rule. We are going to give the power to the EPA that we have given under eminent domain to cities and counties and States in the United States. Eminent domain is the way the government was allowed under the Constitution to take property but reimburse the owner of the property for the damage done by the government in the taking for road rights-of-way, sewer lines, water projects, and things of that nature. This is a grant for eminent domain to an agency without any requirement to compensate the person from whom they have taken the land or restricted the use of the land.

The Presiding Officer mentioned that his father and family were in the homebuilding industry. I was in the homebuilding industry too and the land development industry. What we do is we add value to the land. We add value to its resources. We improve its drainage and use of water. But if we have a regulatory agency that makes it too expensive to develop the land, we go out of business and the community goes out of business because there is no new housing. The effect of the rule is it shuts down the economy, growth, and opportunity; it doesn't add to it.

So it is very important to understand that when somebody says ``We are going to pass a waters of the U.S.A. rule that is going to improve the quality of our water, and we are going to do so by delegating to the EPA--an unelected appointment agency--the power to tell you what you have to do,'' they are in effect saying that they are giving the power of eminent domain to the EPA without a requirement that you as a landowner be compensated.

The reason America is different from every other country on the face of this Earth is because we are a nation of individual landowners. We own our country, and we are still good stewards of our land, and we appreciate that opportunity. In most countries around the world, people don't have the opportunity to own the land and have private ownership. They lease their little place in life and that is where they go. America is different, and that is what made us different. But if we are landowners and we come under a waters of the U.S.A. rule and the EPA provides edicts that have the force and effect of law without the requirement to be compensated by an unjust agency that is enforcing a rule or regulation, we are becoming nothing better than a European country or, worse than that, a country that no longer has the benefit of private ownership of land.

So it is very important that we understand that the quality of water is important, protecting our water is important, but it is a balance, and it is a balance between the user, the landowner, and the government. What we need to do is come together to develop policies that are necessary to see to it that we have a good quality of water and we have good use of our water but not a dictatorial agency in the Federal Government given the total priority to control our land and its use.

I love this country. I love the opportunity it has given to me and the opportunity to serve in the U.S. Senate, to take my life experiences and try to add to the quality of legislation we pass here. I hope we will pass the Ernst legislation and stop the growth of the waters of the U.S.A. rule and get everybody--all the users--to come to the table and talk about positive ways to protect the quality of our water and the use and the management of our water but not the confiscation of our property and the dictates of an agency rather than an elected body.

We do not need America to become a dictatorial country. We need to continue to be a country of participation and negotiation, where everybody at the table has a stake and where in the end we work for the best interests of all, not just the interests of an agency or, worse than that, a central belief within that agency.

This rule is a rule that is bad for farmers, developers, landowners, cities, counties, water authorities, wastewater authorities, sewer treatment plants, and anybody else who has water.

I want to read what the EPA's coverage is in this bill. It says:

The flawed rule of the EPA to regulate nearly all water includes manmade water management systems, water that infiltrates into the ground or moves over land, and any other water the EPA decides has a significant nexus to downstream water based on the use by animals, insects, birds, and on water storage considerations.

There is no other provision in there. It includes all water. It is the authority for EPA to regulate it.

We have a farm bureau in Georgia that came up with the right slogan. They just simply said, after talking about the rule, after talking about waters in the U.S.A., there is only one thing we need to do: We need to ditch the rule.

It is time tonight for the Senate to adopt the Ernst provision, ditch the rule, and go back to the table and pass laws that are partnership laws between landowners, land developers, the local communities, local city councils, local county commissions, the local States. Let's not be a nation that edicts from the top down, but let's have solutions from the bottom up that always protect land ownership and land distribution and never take control of the water out of the hands of the States and move it to Washington, DC, where there is no accountability.

Last but not least, do not give the power of eminent domain--by that name or any other name--to the U.S. Government and take away the right to compensate because if you do, you become no better than a third-world nation, and it would be no good for the United States of America.

I see the majority leader has come to the floor, and I am anxious to hear his remarks because I know his name was invoked a few moments ago, so I will yield back my time. I am sure the majority leader would like to speak.

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