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June 10, 2015

Senate EPW Committee Passes Barrasso’s Bipartisan Bill to Protect Navigable Waters in the United States

Bill directs EPA to issue a revised “waters of the United States” rule that protects traditional navigable water, wetlands, and protects farmers, ranchers and private landowners.

WASHINGTON, DC –Today, U.S. Senator John Barrasso (R-Wyo.), praised the Senate Environment and Public Works (EPW) Committee’s passage of S. 1140, the bipartisan Federal Water Quality Protection Act.

S. 1140 directs the Environmental Protection Agency (EPA) and Army Corps of Engineers to issue a revised “waters of the United States” (WOTUS) rule that protects traditional navigable water and wetlands from water pollution, while also protecting farmers, ranchers and private landowners.

“With today’s EPW Committee vote, our bipartisan bill is now one step closer to protecting America’s waterways and our farmers, ranchers and landowners,” said Barrasso. “I will push for the Senate to pass this bill immediately so we can send EPA back to the drawing board to write a new rule that truly reflects the needs of all Americans.”

Senator Barrasso introduced S. 1140 on April 30, 2015 with Senator Joe Donnelly (D-IN), EPW Chairman Jim Inhofe (R-OK), Heidi Heitkamp (D-ND), Pat Roberts (R-KS), Joe Manchin (D-WV) and 33 other co-sponsors.

Senator Barrasso delivered the following remarks at today’s Senate EPW Committee mark up of S. 1140:

“Thank you very much Mr. Chairman. I do appreciate you holding a markup on this bipartisan, pro-environmental protection, pro-small business legislation.

“S. 1140, the Federal Water Quality Protection Act, is legislation I introduced with along with Democrat Senators—Senator Donnelly, Senator Heitkamp, Senator Manchin, along with other members of this committee, including you Mr. Chairman.

“This is legislation that will protect our nation’s navigable waterways and the streams and wetlands that help keep our navigable waters clean.

“This bill is a testament to the hard work that both sides of the aisle have done in achieving an agreement on an environmental protection bill.

“Our rivers, our lakes, our wetlands and other waterways are among America’s most treasured resources.

“In my own home state of Wyoming we have some of the most beautiful rivers in the world – the Snake River, the Wind River, dozens of others.

“The people of Wyoming are devoted to keep these waterways safe and pristine for their children and grandchildren.

“They understand that there is a right way and a wrong way to do this.

“It is possible to have reasonable regulations to help preserve our waterways, while still respecting the difference between state waters and federal waters.

“Now unfortunately, the rule that the EPA has released does not do that. In fact, the rule is actually worse than the proposed rule.

“Now this is important, because many of my colleagues have been waiting for the rule to be released and gave the administration the benefit of the doubt.

“But I am here to tell you, that no matter what concessions EPA has claimed, they added new provisions that greatly expand their authority.

“For example, instead of clarifying the difference between a stream and erosion of the land, the rule defines tributaries to include any place—any place where EPA thinks it sees, believe this, an ‘ordinary high water mark.’

“Well what looks like—not what it is—but the EPA says what it looks like a ‘high water mark.’

“Even worse, EPA proposes to make these decisions from their desks, using aerial photographs and laser generated images – claiming a field visit isn’t necessary.

“Under the rule, the Environmental Protection Agency also has the power to regulate something as ‘waters of the United States’ if it falls within a 100-year floodplain or if it is within *400 feet of a navigable water or a tributary, and EPA claims that there is a ‘significant nexus.’

“So under this rule, ‘significant nexus’ can mean a water feature that provides ‘life cycle dependent aquatic habitat’ for a species.

“Well if you start drawing 4,000 foot circles around everything that the EPA identifies as a tributary, and everywhere there is potential aquatic habitat for birds and fish in that area, I expect nearly the whole country would be included—the whole country.

“And Mr. Chairman, this isn’t just me. This is from the economic analysis of the EPA Army Clean Water Rule, May 2015 this year. This is what the EPA says, confirm my suspicions, ‘The agencies have determined that the vast majority of the nation’s water,’ not the state’s water, not the county’s water, not the local water, but the nation’s water they think they own it all, ‘the nation’s water features are located within 4,000 feet of a covered tributary, traditional navigable water, interstate water, or territorial sea. We believe therefore, that very few waters will be located outside 4,000 feet and within a 100-year floodplain.’

“They believe they can control it all.

“In addition, the final rule exempts puddles, and they define that as – ‘very small, shallow, and highly transitory pool of water that forms on pavements,’ oh that’s good, ‘or uplands during or immediately after a rainstorm or similar precipitation event.’

“But it does specifically include other pools of water created by rain, such as prairie potholes, vernal pools even if the land where these pools of water form is far away from any navigable water, or even a tributary.

“Since the Supreme Court issued its 2001 decision in the SWANCC case, none of these isolated pools of water have been found to be jurisdictional, applying a case-by-case analysis.

“Under this new regulation, nearly all of them will be considered ‘waters of the United States,’ giving the Environmental Protection Agency the power to regulate what you do on that land.

“These provisions are sweeping, and will create uncertainty in communities across America.

“Rather than support an EPA rule that is actually worse than the proposed rule, that does not represent the interests of our farmers, ranchers, families, communities, let’s move forward with this bipartisan Federal Water Quality Protection Act to assure the public that we hear and we understand their concerns.

“At the same time, let’s give EPA and the Army Corps the certainty that they need to confidently move forward with a new rule that truly reflects the needs of the constituents that we represent.

“Thank you Mr. Chairman, and I urge a YES vote on this bipartisan piece of legislation.”

*Senator Barrasso meant to say 4,000 feet, not 400.