[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 

[[Page S57]]
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 

[[Page S58]]
     ``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.

                          ____________________