[Congressional Record Volume 142, Number 2 (Thursday, January 4, 1996)]
[Senate]
[Pages S56-S58]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FEDERAL REGULATION OF WETLANDS
Mr. BOND. Mr. President, for years, I have tried to reform the way
our Federal Government protects wetlands. The current system is
bureaucratic and cumbersome; it is full of delay, waste, and
uncertainty. I believe that wetlands should be protected. I believe
that the Federal Government should continue to have an important role.
But clearly, whatever is done to address the outstanding questions
surrounding the Federal regulation of wetlands, the system must be
streamlined. This is not radical or extreme. It is not even partisan.
If one is not an employee of the Environmental Protection Agency or if
one is not a K-Street concrete environmentalist, streamlining makes
sense. Streamlining is a bipartisan issue. Depending on which day one
decides to listen to the President, he believes in streamlining.
Senators may remember the National Performance Review to re-invent
Government making Government work better and cost less. We have been
told that the administration wants to make the Government user
friendly, that it wants to streamline and reduce duplication and waste.
Our goal is to make the entire Federal Government both less
expensive and more efficient, and to change the culture of
our national bureaucracy away from complacency and
entitlement toward initiative and empowerment. We intend to
redesign, to reinvent, to reinvigorate the entire national
government.
This is President Clinton on March 3, 1993. He also said:
It is time the Federal Government follow the example set by
the most innovative State and local leaders and by the many
huge private sector companies that have had to go through the
same sort of searching reexamination over the last decade,
companies that have downsized and streamlined and become more
customer-friendly and, as a result, have had much, much more
success.
Apparently, Vice President Gore also believes in streamlining and
reinventing Government. On that same day, Vice President Gore said:
It's time we cut the red tape and trimmed the bureaucracy,
and it's time we took out of our vocabulary the words, `Well,
we've always done it that way.
The Vice President also requested action from citizens and
policymakers.
Help us get rid of the waste and inefficiency. Help us get
rid of unnecessary bureaucracy. Let us know when you spot a
problem and tell us when you've got an idea.
I have spotted a problem and I have an idea. Outside of Washington,
this is common sense. The problem is that we have multiple agencies
doing the same thing with regard to wetlands. My idea was to eliminate
just a fraction of the existing redundancy in wetlands regulation. The
Clinton administration already has employees at the U.S. Army Corps of
Engineers who have had the lead in making permitting decisions on
wetlands for 20 years. The Clinton administration also has employees at
the Environmental Protection Agency which oversee the same permitting
decisions. My idea is that one team of professionals should be enough.
If it is not enough, then we have more management problems than a
National Performance Review could remedy.
I included a provision in the VA-HUD appropriations bill which
removes EPA's duplicative authority to veto corps-issued permits.
According to the corps, there is no other Federal regulatory program
that gives two Federal agencies decisional authority over the same
Federal permit of action. The corps has been the lead agency in
wetlands protection for almost 20 years and it simply cannot be
demonstrated that we need to hire one set of bureaucrats to second-
guess what the first set of bureaucrats is hired to do in the first
place. We are here today to balance a budget. To balance a budget,
tough choices must be made. Eliminating redundant activities is an easy
choice. It is common sense. Leave it to the environmental lobbyists to
argue that we need two or more different Federal agencies conducting
the same task--looking over each other's shoulder--adding expense,
confusion, delay and frustration for our Nation's citizens.
There have been many changes recommended to improve the
administration of this important program. This change is the easiest
one. In that sense, I thought the provision should be non-
controversial. In fact, no Senator offered an amendment on the floor to
address this provision. It was not challenged in the House. Hearings
have been held in both the House and the Senate. The House-passed
reauthorization of the Clean Water Act removes this duplicative
authority. The bipartisan bill introduced in the Senate to reform the
wetlands regulatory program removes this authority.
Knowing of the Clinton's administration's efforts to streamline
Government, I was surprised to learn in the President's veto message
that this provision is one of the reasons for the
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President vetoing the bill that funds Federal employees at EPA, the
Veteran's Administration, Housing and Urban Development, and others.
Not even rank and file people at the EPA could think this is a very
good reason for the President to prevent their funding bill from
becoming law. This is truly an astonishing notion put forth by the
President. He is saying, in effect, I don't trust the people who I
hired and the people who work for me at the U.S. Army Corps of
Engineers to protect wetlands and to obey the law so I want to make
sure I have another agency of people who I hired and who work for me to
keep an eye on them.
Mr. President, for me, this issue is a flashback to another
streamlining provision I proposed in the 102d and 103rd Congress.
Several years ago, a farmer in St. Louis County came to my office with
a real problem. He had some wet places of ground on his land and he had
four different agencies coming out to that land telling him different
things. I sent representatives out. The four agencies could not agree.
They had swampbuster, they had section 404 regulations in hand. We got
two different opinions on the particular wetlands problems and the
agencies could not agree.
I had a modest suggestion and introduced legislation to make the Soil
Conservation Service the lead agency responsible for technical
determinations about wetlands on agricultural lands. After several
years passed, I offered this proposal as an amendment on May 4, 1993,
to S. 171, the Department of the Environment bill to elevate the EPA to
Cabinet level. The administration opposed that idea also--at least
initially. The opposition dug out all the same bogeymen, ghosts, and
goblins. I was actually told that this amendment would make things more
complicated--not less--if SCS was the lead agency. I was told this was
the wrong vehicle and that the amendment would make wetlands regulation
more expensive. The bipartisan amendment failed 40-54. Eight months
later, the administration adopted this idea administratively and said
they were glad they thought of it. In the interagency press release,
they noted:
The agreement eliminates this duplication of effort and
gives the farmer one wetland determination from the Federal
Government. Farmers can now rely on a single wetland
determination by the Soil Conservation Services.
Interior Assistant Secretary for Fish and Wildlife and Parks George
T. Frampton, Jr., said:
This agreement represents a common sense approach to
administering wetlands programs affecting our Nation's
farmers. We are minimizing duplication of effort.
For this administration, it is a fine line between extremism and
common sense. I would hope that another change of heart could be in
order but I fear that the pressure from environmental lobbyists may be
too great.
During Senate hearings, EPA argued repeatedly that they never use the
authority so we shouldn't care about them having it. I will argue that
if they never use it, then why have it? I would like to know why the
administration desperately needs an authority that has only been used
11 times in the last 20 years as tens of thousands of permit decisions
were made. Is the President trying to say, well, yes, we agree that the
EPA has not officially objected to corps decisions 99.9978 percent of
the time, but we can never be too careful. We have so much extra money
and so many people looking for work at EPA, that we better have them
ready for that eventuality that occurs .0022 percent of the time.
The other argument that is used is that we would have the corps
permitting themselves for their own activities. As Senators know, the
corps does not actually issue itself section 404 permits but does
follow all of the steps involved in the permitting process. Every other
existing internal and external decision safeguard is affected by my
legislative provision. The corps must meet the public interest review
which requires the careful weighing of all public interest factors. Mr.
President, listen to the list of criteria to be considered under the
public interest review:
All factors which may be relevant to the proposal must be
considered including the cumulative effects thereof: among
those are conservation, economics, aesthetics, general
environmental concerns, wetlands, historic properties, fish
and wildlife values, flood hazards, floodplain values, land
use shore erosion, etc.
Additional criteria the corps are bound to follow are found in the
section 404(b)(1) guidelines developed by the EPA. EPA retains its
404(q) authority, known as elevation authority, which allows the EPA
and the Department of Commerce and the Interior to request higher level
review within the Department of the Army. Individual State permitting
and water quality certification requirements provide an additional form
of objective safeguard to the corps regulatory program. Section 401 of
the Clean Water Act requires State certification or waiver of
certification prior to issuance of a section 404 permit--effectively
giving States veto authority.
In addition to these requirements, the corps' implementing
regulations require that district engineers conduct additional
evaluations on applications with potential for having an effect on a
variety of special interests such as Indian reservation lands, historic
properties, endangered species, and wild and scenic rivers. The corps
must satisfy the National Environmental Policy Act requirements during
the permit process and permit decisions are subject to legal
challenges. EPA also has lead enforcement authority. One final
safeguard is provided by my fellow Senators. The great majority of
corps projects are authorized by Congress. I believe this Congress has
the understanding and concern to put the brakes on bad projects--
environmental lobbyists and EPA wetlands experts are not the only
people who understand and are willing to protect valuable wetlands.
As anyone can see, the cries from the environmental lobby are a red
herring. There remains lots of bureaucracy and lots of redundancy for
those who cherish it. In this case, they are crying wolf. My provision
will do nothing to harm wetlands. Under my provision, if a wetland is
or is not permitted, it will be because of an official decision made by
an official of the Clinton administration.
What is this about? It is a plain old-fashioned bureaucratic turf
fight. EPA bureaucrats have power and they don't want to surrender any
of it. They have good working relationships with environmental
lobbyists who don't want to see their access reduced. I have no doubt
that EPA employees work very hard and have expertise in wetlands
issues, but I am simply saying that the corps does, too, and one agency
is enough. I expect bureaucrats to fight to protect power and to
protect turf. What I do not expect, however, is their political
leadership to provide them cover for doing so. Is the President here to
create a government that works better and costs less or is he here to
protect bureaucratic turf and the regulatory status quo. Unfortunately,
the bureaucrats whose turf the President is protecting are currently at
home because the President vetoed their funding bill--in part, and
astonishingly, over this common-sense issue.
Mr. President, there was a New York Times article printed in the
Record on December 14 [S18650] that discusses this issue. I ask
unammious consent that my response to that letter be printed in the
Record. I also ask unanimous consent to have printed in the Record a
Wall Street Journal op-ed piece entitled ``Death of a Family Farm,''
detailing an abuse of wetlands regulations.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Senate,
Washington, DC, December 15, 1995.
Ms. Kris Wells,
Editor, Letters to the Editor, The New York Times, New York,
N.Y.
Dear Ms. Wells: The December 12, 1995, story entitled
``Brief Clause in Bill Would Curb U.S. Power to Protect
Wetlands'' is a very catchy headline, but grossly inaccurate.
As the article accurately notes, the U.S. Army Corps of
Engineers and the Environmental Protection Agency (EPA) have
dual decisional authority in permitting activities in
wetlands. According to the Corps of Engineers, no other
program maintains this dual decisional authority over the
same permit or action.
In the spending measure I crafted for Veterans Affairs,
Housing and Urban Development and the EPA, I included a
provision that eliminates this dual authority by removing
EPA's authority to veto permits the Corps has issued.
Therefore, the provision would indeed curb one and only one
of the many ``EPA'' powers to protect wetlands, but it
certainly does not curb ``U.S.'' power to protect wetlands
unless you think the
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``U.S.'' Army Corps of Engineers in not a federal agency. Additionally,
these two agencies just happen to report to the same boss/es;
ie., the President, Office of Management and Budget, the
Counsel on Environmental Quality and the Vice President, who
is a self-proclaimed advocate for the environment.
There are many things this government can no longer afford,
and on the top of that list is bureaucratic redundancy. Leave
it to the environmentalists to argue that we need two or more
different federal agencies conducting the same task--looking
over each other's shoulder--adding expense, confusion, delay
and frustration. The bottom line on this issue and on the
projects that were mentioned in the article is this: if a
wetland is or is not permitted, it will be because of an
official decision rendered by officials of the Clinton
Administration. If people in the environmental community do
not feel that the Clinton Administration has hired aggressive
enough regulators, then they should take it up with the
Clinton Administration and quit crying wolf about a common-
sense provision to streamline government--a goal that the
President has repeatedly endorsed.
As Vice-President Gore said on March 3, 1993: ``It's time
we cut the red tape and trimmed the bureaucracy, and it's
time we took out of our vocabulary the words, `Well, we've
always done it that way.' . . . Help us get rid of the waste
and inefficiency. Help us get rid of the unnecessary
bureaucracy. Let us know when you spot a problem and tell us
when you've got an idea.'' Don't bother telling the
environmental activists and lobbyists when you've got an
idea. Which conservative ever called such dug-in-defenders of
the status quo liberals?
Sincerely,
Christopher S. Bond.
____
[From the Wall Street Journal]
Death of a Family Farm
(By Jonathan Tolman)
``My mother lives in Cranston. There aren't any wetlands
there.'' This was the incredulous statement of a co-worker
when I tried to explain to her the plight of the Stamp farm.
Bill Stamp, president of the Rhode Island Farm Bureau, and
his wife Carol own one of the few farms left in the state.
But due to federal regulations, their farm is slated to close
at the first of the year.
The Stamps' troubles all started when the city of Cranston,
R.I., rezoned their property from agricultural to industrial.
For years, Cranston had been trying to get the Stamps to
develop their property. To give them an added incentive, the
city decided to raise their taxes to the industrial bracket
in1983.
In order to pay the higher taxes and keep their farming
operation alive, the Stamps decided to develop part of the
property at Cranston and move their farm to another part of
the state. Their first encounter with wetlands happened three
years later after they built a road on part of their
property. The Stamps had already received permits from both
the city and the state to proceed with the road when the Army
Corps of Engineers decided to get involved.
Under Section 404 of the Clean Water Act, before anyone can
deposit dredged or fill material into a ``navigable water''
of the U.S., they must get a permit from the Army Corps of
Engineers. Over the years, with the legal prodding of
environmentalists and a string of court cases, the Corps has
expanded its definition of ``navigable water'' to include
areas you wouldn't normally expect to see boats, namely
wetlands.
Identifying wetlands is a difficult business. As the Corps
pointed out in one of its recent press releases, ``Wetlands
don't have to have visible water.'' Because of the tricky
nature of wetland identification, in 1987 the Corps developed
a 150-page manual filled with flow charts, appendices and
guidelines for identifying wetlands.
Upon learning about the road, the Corps told the Stamps,
``Since a Federal permit has not been issued for the work you
are presently performing, you are hereby ordered to cease and
desist from any further work within Corps jurisdiction.'' In
order to continue, the Stamps had to apply for a permit for
the road they had already built. The Corps denied the permit,
and demanded that the road be removed. In addition, the Corps
demanded that the Stamps also remove the water and sewer
lines which had been placed on their property. The Corps
refused to consider any additional permits until the Stamps
complied with their demands.
Realizing the mess they were in, the Stamps hired an expert
consultant to help them with their wetland problems. After
surveying the area with the Corps' own manual, the consultant
came to the conclusion that the area where the Stamps built
their road wasn't even a wetland. Just to be sure, he brought
in two other wetland and soil scientists to look at the area.
In a letter to Mr. Stamp, one of the experts, a dean at the
University of Rhode Island, wrote: ``The delineation of
wetlands on that portion of your property is obviously in
error.'' The other consultant, a former New York State
soil scientist, concluded, ``Since the soils would not
qualify as hydric soils, the area would not be a wetland
under the U.S. Army Corps of Engineers jurisdiction.''
Yet when the Corps was asked to reevaluate the site, it
refused. The consultant, feeling that the Stamps had been
wronged, wrote the Washington headquarters of the Corps and
asked for a re-evaluation. The Acting Assistant Secretary of
the Army. G. Edward Dickey, refused, ``because the Corps is a
decentralized agency, the divisions and districts are
responsible for most permit decisions and other related
regulatory decisions, including delineations.'' (Perhaps
someone should tell the secretary of the Army that he is now
in charge of a ``decentralized agency.'')
Now, after the Stamps have spent thousands to restore the
``wetland,'' as well as having paid $15,000 in fines,
thousands of dollars in legal fees and a lot more in
increased property taxes, the original permits from the state
of Rhode Island have expired. Unless the state can come
through with new permits in the next few weeks, the Stamps
will be unable either to sell or develop their land, and
their financiers will likely foreclose on their farm in
January.
Some might argue that in order to protect our nation's
fragile wetlands, some errors and unfortunate incidents will
happen, but in the long run it will be worth the price. The
problem with this reasoning is that the 404 program doesn't
really protect wetlands. Although the unwitting can get
caught in the regulatory morass of the 404 program, savvy
developers are aware of myriad exemptions, such as a rule
that if the Corps does not respond within 30 days of being
notified about a construction project of less than 10 acres,
the developer can proceed with the project.
Because of such loopholes it is not surprising that many
environmentalists detest the 404 program almost as much as
landowners. An article published last spring in Audubon
magazine described the 404 program as ``a hoax perpetrated
and perpetuated by a wasteful, bloated bureaucracy that is
efficient only at finding ways to shirk its obligations and
that when beaten on by developers, spews wetland destruction
permits as if it were a pinata.'' The environmentalists'
argument isn't just liberal griping. Recent data from a
nationwide survey of wetlands, conducted by the U.S.
Agriculture Department, suggests that even though wetland
regulation has increased in the last decade, wetland losses
to development have not slowed. Even more ironic is that
despite the continued loss of wetlands to development, a host
of non-regulatory, incentive-based programs have restored so
many wetlands that this year the U.S. will gain more wetlands
than it lost.
Recently, Sen. John Chafee (R. R.I.), chairman of the
Environment and Public Works Committee, announced plans to
consider the re-authorization of the Clean Water Act,
including the 404 program. The senator has the power to
eliminate a program that both landowners and
environmentalists agree is a bloated, wasteful bureaucracy.
Maybe he can do it before another farm in his home state goes
belly up.
Mr. BOND. Mr. President, there are many ways in which we can reform
this program. We can do so in a bipartisan way. We can do so in a way
that cuts redtape and offers new incentives for wetlands protection. We
can do so in a way that includes more respect for those who currently
protect wetlands--private property owners. We can bring rationality to
the program and turn an important program into a more effective and
maybe--maybe--even a more popular program. In the process, we might
even give the States a greater role. In my State, I know we have
officials who understand and care just as much about wetlands as the
folks who work here in Washington. I am hopeful that these issues can
be addressed. In the meantime, this legislative provision is an
important start toward removing duplicative redtape and an important
test for the President to see if he is so wed to the regulatory status
quo, that he would reject this commonsense reform.
____________________