Yesterday, 41 senators refused to have a substantive debate on an issue that is critically important to all of our constituents –the scope of federal authority under the Clean Water Act – and voted against a motion to proceed to Senator Barrasso’s bi-partisan Federal Water Quality Protection Act, S. 1140.
Later in the day, I was extremely disappointed to learn 11 of those 41 senators agreed that EPA’s rule is flawed, but instead of doing their job to provide legislative clarity to the EPA on the regulation of our nation’s waters, they wrote a letter. In this letter they told EPA they have concerns with the rule, but instead of acting now, they reserve the right to do their jobs, simply at a later time.
If only 3 of these 11 senators would have voted to proceed to the bill, we could have worked with them to resolve their concerns and ours about the WOTUS rule.
As Senator Sasse so eloquently reminded us in his maiden speech to the Senate, which also took place yesterday – what are we here for if not to have a substantive debate on issues? No wonder the American people think that Congress is not looking out for their interests.
Instead of doing their jobs, 11 senators asked EPA to change the final rule through guidance. Well that can’t happen. EPA can’t change a regulation with a guidance document. That would be a violation of the Administrative Procedure Act.
These 11 senators also asked EPA to enforce the rule in a way that will protect people who are not regulated today. That also won’t happen. The WOTUS rule is on the books. Even if EPA doesn’t bring an enforcement action against someone, activist environmental groups can bring a lawsuit themselves, and use this rule to stop economic activity in your states and mine.
In this letter, 11 Democrats agreed that EPA did not provide clarity in its final WOTUS rule to protect American land owners. But instead of voting to debate a bipartisan bill that would have forced EPA to provide that clarity – and offer perfecting amendments if they wished – they wrote a letter.
EPA’s entire rulemaking process, and now the lack of debate in the Senate – is an example of Washington at its worst.
This is a long and sordid story that dates back to 2009.
EPA wanted to be able to control isolated ponds and wetlands and dry channels that carry water only when it rains.
But, they were blocked because the Supreme Court said that the Clean Water Act is based on Congress’ authority over navigable waters.
First, EPA backed legislation sponsored by Senator Feingold and Congressman Oberstar to take the word “navigable” out of the Clean Water Act.
To support this legislation, EPA created a propaganda message that action was needed to protect drinking water.
EPA spread this propaganda even though they know that all sources of drinking water are already regulated.
But, the American people were not fooled.
The bills were so unpopular with the American people that even though Senator Feingold’s party held the Senate, the House, and the White House, his bill never reached the Senate Floor and Congressman Oberstar did not even try to move his bill through the Committee that he chaired.
The American people held them accountable. Both lost their elections in 2010.
After that election, EPA changed its strategy.
Even though in 2009 EPA said they needed legislation to expand federal control, after Congress rejected their attempt to take the word “navigable” out of the Clean Water Act, they tried to do the same thing by changing the definition of waters of the United States with a new regulation.
In this new regulation, EPA tried to dodge the Supreme Court rulings by pretending that all water has a connection to navigable water.
EPA also cranked up its propaganda machine again.
On May 19th the New York Times said:
“In a campaign that tests the limits of federal lobbying law, the agency orchestrated a drive to counter political opposition from Republicans and enlist public support in concert with liberal environmental groups and a grass-roots organization aligned with President Obama.”
They created social media messages and asked people to send these EPA-drafted messages of support back to EPA – a true echo chamber.
After soliciting comments using its propaganda machine, EPA claimed that 90 percent of comments supported the rule and that every comment is meaningful to EPA.
However, the Corps of Engineers told my committee that only 39% of unique comments supported the rule, and 60% were opposed.
The difference is that EPA is counting each email address on a list as a separate “meaningful” comment.
For example, EPA counts a list of nearly 70,000 email addresses sent in by Organizing for Action, President Obama’s campaign arm, as 70,000 comments.
Apparently, EPA considers an email address more meaningful than substantive comments submitted by states, local governments, farmers, ranchers and property owners.
EPA ignored the significant concerns raised by these groups – but we should not.
I am sure every member of this body has heard from their constituents. Tom Buchannan, the head of the Oklahoma Farm Bureau has told me repeatedly that this WOTUS rule is a bigger problem for Oklahoma farmers than any other regulation.
We have a rule that two courts have already said is likely illegal. It will be overturned.
We don’t have to stand for this. We don’t have to endure years of confusion before the courts act. We can stop this rule.
Senator Ernst’s CRA will do that. I urge a yes vote.
And, after vacating this rule, if any Senator wants to work with my committee on the substantive issues around the scope of federal authority under the Clean Water Act, I stand ready.