Providing for Congressional Disapproval Under Chapter 8 of Title United States Code, of the Rule Submitted By the Department of the Army, Corps of Engineers, Department of Defense and the Environmental Protection Agency Relating to Revised Definition of Waters of the United States

Floor Speech

Date: March 29, 2023
Location: Washington, DC


Mr. CARPER. Madam President, I believe I have 15 minutes to speak.


Mr. CARPER. I would ask that I be granted 15 minutes to speak.


Mr. CARPER. Madam President, I rise today in strong opposition to H.J. Res. 27, a Congressional Review Act resolution to disapprove the Biden administration's rule defining the ``waters of the United States,'' or WOTUS, as it is popularly known.

To many Americans, the definition of the ``waters of the United States'' may not seem like a controversial matter. To understand why it is, though, we need to first ask ourselves, how did we get here to this point?

Well, a little more than 50 years ago, Congress came together to pass the Clean Water Act. In doing so, Congress affirmed our Nation's commitment to protecting and restoring waterways from industrial pollution. Until that point, our Nation's waters--which were and continue to be critical to our health, to our environment, and our economy--were subject to indiscriminate pollution and destruction. Polluters could dump their waste into upstream waters without consequence.

In fact, some of you may recall that the Cuyahoga River in Northern Ohio was so polluted that it caught fire in 1969, not far from where I went to college as a Navy ROTC midshipman during the Vietnam war. The memory of that fire remains with me still today.

When Congress passed the Clean Water Act, there was no confusion--no confusion or uncertainty--about what it was seeking to protect. At the time, there was broad bipartisan concern over the health of our Nation's waters. There was also consensus that we needed to fix a very real and a very costly problem. America's waters needed once again to be drinkable; they needed to be swimmable; and they needed to be fishable.

During the Senate debate on the Clean Water Act all those years ago, Democrats and Republicans alike spoke in support of the legislation. Senator Ed Muskie, a Democrat from Maine and the bill's lead sponsor said:

[T]he rivers of this country serve as little more than sewers to the seas. Wastes from cities and towns, from farms and forests, from mining and manufacturing, foul the streams, poison the estuaries, threaten the life of the ocean depths. The danger to health, the environmental damage, the economic loss can be anywhere.

That is his quote from all those years ago.

Senator Howard Baker, if you recall, a Republican from Tennessee who was also a Republican leader in this body for a number of years had these words to say:

[T]he economy of this Nation can absorb the costs of cleaning up pollution without inflation or without a loss in economic productivity.

He went on to say these words:

If we cannot swim in our lakes and rivers, if we cannot breathe the air God has given us, what other comforts can life offer us?

Senator Baker's words were true then, and they ring true still today. Thanks to the Clean Water Act, our Nation's waters are remarkably cleaner than they were five decades ago. The same Cuyahoga River that caught fire all those years ago is now cleaned up and home to more than 60 species of fish.

The simple fact is the Clean Water Act remains our best tool to safeguard our nation's waters from persistent pollution, protecting our health, protecting our environment. We cannot afford to turn back the clock on these protections for our Nation's waters and those who depend on them.

In a nutshell, that is why I support President Biden's commonsense rule defining which of our Nation's waters need to be protected under the law. It is also why I oppose--what I believe to be--a misguided Congressional Review Act resolution to invalidate it.

After multiple administrations' failed attempts to create a lasting WOTUS definition, the 2023 Biden rule represents--what I believe--is a fair balance. The rule protects our Nation's waters and wetlands and provides flexibility for those who need it. And that last ``and'' is important--and provides flexibility for those who need it. And, particularly, the Biden rule thoughtfully responds to many concerns that the agricultural community in my State and in other States have voiced over the years.

In fact, the Biden rule makes agricultural exemptions clearer and more consistent with other existing regulations. For example, the rule includes express exemptions for farming on land designated by the U.S. Department of Agriculture as prior converted cropland, an exemption long-sought by the agriculture community in my State and, I suspect, in most of the other 49 States. According to the American Farm Bureau, there are approximately 53 million acres of prior converted cropland in the United States--that is 53 million acres of farmland that the Biden rule makes clear should not be regulated--should not be regulated--53 million--million with an ``M.''

If the CRA resolution of disapproval were to become law, it would overturn this important clarification for agricultural activities under the Biden rule, including the one I just mentioned. The Environmental Protection Agency and the Army Corps of Engineers would also be prohibited from developing substantially similar regulations in the future. All of this would lead to confusion and uncertainty from our farmers and ranchers. We don't need more uncertainty; we need less.

Many of our colleagues who oppose the Biden rule say they prefer the Trump administration's so-called Navigable Waters Protection Rule. I would like to remind them that the Trump rule actually earned its name, I think, for good reason--Trump's dirty water rule was vacated not just by one court but by multiple courts. I think at least two Federal courts vacated that rule. These court rulings found that the Trump rule failed to fulfill the requirements of the Clean Water Act. Overturning the Biden rule will not bring the Trump rule back.

I will say that again. Overturning the Biden rule will not bring the Trump rule back. The courts have already spoken--not once, but twice-- with respect to the Trump rule.

Instead, all that this CRA would accomplish is to create a new phase of litigation and even more uncertainty, neither of which we need. We have also heard some of our colleagues argue that protecting streams and wetlands under the Clean Water Act is an overreach. The science, however, is abundantly clear. The health of our waterways is inextricably linked to our streams and to our wetlands. As we all know, wetlands are valuable for our economy, our environment, and our planet.

So how is that, you might ask? How is that? Well, wetlands protect our communities from dangerous and costly flooding. One acre of wetlands can store up to 1.5 million gallons of floodwater. In total, that means that wetlands in the United States provide $2.9 trillion in value just by reducing and delaying floods. That is more than the GDP of every State and territory in 2022, except maybe for California. It is also worth noting that nonflood plain wetlands buffer floodwaters by capturing runoff during storms.

So when I hear the criticisms that the Biden WOTUS rule is bad for our economy, put plainly, I could not disagree more. Some may say that our Nation cannot afford the level of protection for our waterways and wetlands provided by the Biden rule. As it turns out, the converse is true: We cannot afford not to protect it.

The reality is that because of the interconnectedness of our waterways, streams, wetlands, oceans, and estuaries, how private property owners manage their land has the potential to affect us all. If your upstream neighbor pollutes the water or drains a wetland, that can impact your property too. Similarly, what one State does can impact neighboring States as well as States even further downstream.

May I add one other thing? The Clean Water Act reminds us of the moral obligation all of us have to follow the Golden Rule: to treat others the way we want to be treated. The Biden rule requires us to be good neighbors and stewards of our planet, while also providing flexibility for those who need it. I, for one, am grateful for that.

As the late Senator Baker put it more than 50 years ago, right here on this very floor, he said.

[I] have found that the kind of natural environment we bequeath to our children and grandchildren is of paramount importance.

Those words were true then, and they are even more true today.

So let me say this again: The planet that we bequeath to our children and the planet that we bequeath to our grandchildren is of paramount importance to them, and it is also to us as their parents and their grandparents. With that thought in mind, I strongly urge my colleagues to join me in opposing H.J. Res. 27.

Madam President, I was coming down on the train today and thought about a visit I paid to a farm probably about a half dozen years ago. It was a beautiful day like today, and we had farmers--scores of farmers who were there. It was organized, I believe, by the Delaware Farm Bureau.

We had people from the administration, the Senate Democratic administration, who had come. And they had come to listen, to hear from the farmers that were gathered, their concerns with an earlier version of this rule, the waters of the United States rule. And the farmers, among other things, said: We want some certainty. We want some predictability, and we want you to listen to us. We want you to listen to our thoughts, and we want you to make sure that the next time you write something like this, you take our thoughts into consideration.

I don't have time in the short time that has been allotted to me to go chapter and verse about the words that were spoken by farmers in my State on that day, but the words that have been spoken by farmers all over this country in the weeks and months since then have been taken into effect, and simply saying that they have been ignored is just not true. It is just not true.

Changes have been made, and they are reflected in the document that we are going to be voting on here in a bit--reflected in the good work that has been done by this administration.

How much time do I have left, Madam President?


Mr. CARPER. That could be scary.


Mr. CARPER. Madam President, I think we have another Senator from West Virginia that is ready to speak over here.

I want to just close with this. The U.S. Department of Agriculture stands ready to work with farmers and ranchers to assist them with compliance. I will say that again: The U.S. Department of Agriculture stands ready to stand with farmers and ranchers to assist them with compliance.

Finally, I think this is a moderate rule that thoughtfully responds to the concerns of farmers and ranchers. I met with Administrator Regan personally. This is not the Trump rule, and this is not the Obama rule. It is a compromise, and I think it is one that deserves to be supported.

So I would ask for a vote that is against the measure that is before us today.

I yield to the Senator from West Virginia.