Energy and Water Development and Related Agencies Appropriations Act, 2013

Floor Speech

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Mr. MORAN. Mr. Chairman, as the Clerk read, this would strike section 110 of this bill.

This is a legislative rider that is bad policy and does not belong in an appropriations bill. This rider, 110, permanently blocks the Army Corps of Engineers from fixing existing policies that are confusing and inconsistent and not working. It risks great harm to fresh sources of drinking water, and it jeopardizes flood protection and outdoor recreation, specifically because section 110 prohibits the Army Corps from clarifying the limits of Federal and State authority under the Clean Water Act.

Mr. Chairman, two Supreme Court cases over the last decade addressed the scope of the Federal Government's authority under the Clean Water Act. The Court's rulings did not require less regulation and protections, but urged the Congress and the executive branch to provide a sound rationale and consistency to clarify the limits of Federal authority. The Corps and the EPA have now issued draft guidance clarifying Federal authority that adheres to the Court's rules. Congress, by contrast, has not.

With this rider, Congress is about to make matters much worse--worse because blocking completion of the guidance and any subsequent regulations which the bill's rider would do would be bad for the public's health, bad for businesses, and bad for farmers. It's especially bad for 117 million Americans whose drinking water comes from headwaters and non-perennial streams. Shouldn't we be concerned about what toxic material is dumped into these streams?

It's bad for American businesses who need certainty. Without updated guidance, businesses will often not know when they need a Corps' permit in order to develop land.

This uncertainty could subject them to civil and criminal liability, and certainly will cost them extra money.

It's bad for farmers because this rider eliminates the agricultural exclusion for prior converted cropland that was added to the waters of the United States rule at the farmers' request.

Section 110 invalidates all rules issued after the rule dated November 13, 1986, but not until 1993 did the Corps and EPA define the waters of the U.S. to exclude ``prior converted cropland.''

Claims that Federal guidance and regulations are unnecessary because of State clean water programs are wrong as well. Thirty-three States joined a brief in the most recent of the Supreme Court cases urging the Court to uphold Federal protections for wetlands adjacent to non-navigable streams. States noted that Federal safeguards were critical (A) because water flows between States, (B) because maintaining a Federal floor of pollution control creates parity between States, and (C) because States have come to rely on Federal protections and would face serious administrative and financial burdens if they were solely responsible for these requirements.

Finally, even though the rider may block the guidance clarifying Federal and State authority, it does not make the Clean Water Act requirements for a permit go away. States are still required to implement and enforce the law, and dischargers still must obey it. Likewise, third parties may still file lawsuits.

The real consequence of this rider will be to frustrate the Federal Government's efforts to explain where State or Federal authority under the Clean Water Act ceases to exist. If this rider prevails, more lawsuits will ensue.

So I urge my colleagues to vote to strike this rider to bring clarity to a confusing issue.

Let me say, Mr. Chairman, that many of the groups involved have finally come together and realized that they need clarity on a very difficult issue. There are times when water goes underground during the summer and the surface dries up, but that water is still present, and much of that water is interstate. You need Federal control.

One of the biggest things that I think perhaps the gentleman may not be aware of is the fact that this rider, if it is passed in this bill, would eliminate the agricultural exclusion for prior converted cropland. The fact is that this rider invalidates all rules that were issued after November 13, 1986, and it wasn't until 1993 that the Corps and EPA defined the waters of the U.S. to exclude prior converted cropland. So a lot of the farm community is going to be very upset if the gentleman's rider is not removed. And the fact that 33 States have joined a brief asking the Federal Government to do what the EPA and the Federal Corps of Engineers is doing means that we are going to cause major problems if this rider is passed in this bill.

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Mr. MORAN. I would like to ask the gentleman what we do about waters that are interstate, they flow down.

Mr. SIMPSON. Well, let me answer that question for you.

Mr. MORAN. Yes, please.

Mr. SIMPSON. If there are waters that the State is not regulating and they will eventually flow into navigable waters, and the only way to control the pollution in those navigable waters--the State is going to ultimately start controlling those headwaters if they're not doing their jobs.

You seem to think that States have no ability to control the State waters that are under State control. They do have the ability to control those State waters, and they do a good job of it in most States. I'm not sure about Virginia. I haven't followed Virginia.

Mr. MORAN. But I suggest to the gentleman, they use the Federal definition in order to enforce the quality of the water coming from other States. That's the problem.

Mr. SIMPSON. The point is that they become navigable waters at some point. If they are being polluted by waters that are controlled by the States, eventually the State is going to have to say, You know what, we have got to get control of this; otherwise, we're going to have problems downstream.

Mr. MORAN. How do they control water from another State?

Mr. SIMPSON. You seem to think that the only way to address this problem is to have a Federal bureaucracy. You know what, we could bring clarity to all of our problems by just eliminating the States. Why have States? Why not have everything under Federal control? That makes sense, because everything goes from State to State eventually. It makes no sense to me.

This does not bring clarity to the situation and it does not help in the regulation of our Clean Water Act. This does not make the waters of the United States cleaner. All it does is give more authority to the Army Corps of Engineers and the EPA.

If you want to bring charity, then bring a bill down here to define what navigable means. And you can do that. As I said, a hanging is clarity--not necessarily the best outcome.

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