[Congressional Record Volume 143, Number 18 (Wednesday, February 12, 1997)]
[Extensions of Remarks]
[Pages E232-E233]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




     REGARDING CONGRESSIONAL REVIEW OF THE ARMY CORPS OF ENGINEERS 
                  NATIONWIDE PERMIT PROGRAM REVISIONS

                                 ______
                                 

                            HON. BUD SHUSTER

                            of pennsylvania

                    in the house of representatives

                      Wednesday, February 12, 1997

  Mr. SHUSTER. Mr. Speaker, I rise today to call the attention of the 
House to an issue which has recently arisen regarding the 
implementation of the Congressional Review Act [CRA], Public Law No. 
104-121, subtitle E, title II, 110 Stat. 847, 868-74 (1996). I 
particularly want to thank the Honorable H. Martin Lancaster, Assistant 
Secretary of the Army for Civil Works, and Maj. Gen. Russell Fuhrman, 
Director of Civil Works, for the spirit of bipartisan cooperation with 
which they and their staff worked with the Transportation and 
Infrastructure Committee and staff of the Government Reform and 
Oversight Committee. Because, however, the issue is one which is likely 
to recur, I bring it to the attention of my colleagues for their 
consideration.
  As many of you are aware, in December 1996, the Army Corps of 
Engineers issued its ``Final Notice of Issuance, Reissuance and 
Modification of Nationwide Permits,'' (61 Fed. Reg. 65874 (Dec. 13, 
1996)), which will significantly alter wetlands permitting in the 
United States. That regulation took effect yesterday, February 11, 
1997.
  Initially, the corps refused to submit the nationwide permit final 
rule to Congress because the agency maintained that the CRA did not 
apply. The corps argued that the nationwide permit regulations were not 
a rule within the meaning of the act for various reasons relating to, 
among other things, the permit-like nature of the regulations and their 
optional--rather than mandatory--use by permittees.
  I disagree with that view. In my judgment, the corps' nationwide 
permit regulation was a rule within the meaning of the CRA and section 
551 of the Administrative Procedure Act. My view was supported by an 
earlier opinion of the general counsel of the General Accounting Office 
who reached a similar conclusion on analogous facts last year. The 
general counsel considered the Secretary of Agriculture's issuance of 
an agency memorandum concerning the implementation of the Emergency 
Salvage Timer Sale Program. See B-274505, Letter from Robert Murphy, 
General Counsel, to Senator Larry E. Craig (Sept. 16, 1996). Even 
though that implementing memorandum was not a formal notice and comment 
rule, GAO nonetheless concluded that the memorandum met the much 
broader definition of a ``rule'' used in the CRA and was required by 
that act to be submitted to Congress for review. Given the nature of 
the Corps' Nationwide Permit Program proposal, I concluded that failure 
to submit the proposal to Congress would also violate the CRA, in light 
of the analysis and criteria used by GAO.
  I was even more concerned with the potential that failure to submit 
the nationwide permit proposal for review could have rendered the 
entire, reissued program invalid based solely on procedural grounds. 
The CRA, 5 U.S.C. 801(a)(1), provides that before a rule may become 
effective, the agency promulgating the rule must submit it to each 
House of Congress for review. The corps' initial inclination not to 
submit the nationwide permit final notice to Congress ran the risk that 
a Federal court might subsequently determine that the failure to do so 
violated the requirements of Sec. 801(a)(1). Were that determination to 
be made, the nationwide permit rule might be deemed without effect and 
all permits issued thereunder subsequent to February 11, 1997, deemed 
null and void ab initio.
  In light of this uncertainty, I urged the corps to rethink its 
position and accept the congressional review process adopted in the 
104th Congress. To its credit, the corps did so--although with 
reluctance. Though the corps continues to believe that submission of 
the nationwide permit rule was unnecessary, the corps agreed to submit 
the rule for review under the congressional review process and did so 
yesterday. We have both agreed that in doing so the corps remains free 
to argue its position both to Congress in connection with any further 
submissions under the CRA and in the Federal courts.
  While the corps submitted the rule in the interest of comity, I 
remain concerned about the agency's determination that the rule is not 
a major rule triggering the special moratorium

[[Page E233]]

and review provisions of Sec. 801. I am also concerned that the level 
of consultation with, and analysis by, the Office of Management and 
Budget--as required by CRA--was minimal. Even so, I appreciate the 
corps' willingness to work with us in the spirit of bipartisan 
cooperation so as to move beyond the initial issue of submission to 
Congress under the CRA.
  With this procedural issue set aside, we can now focus on the 
substance of these significant changes to the Nationwide Permit 
Program. The leadership of the Transportation and Infrastructure 
Committee and its Water Resources and Environment Subcommittee looks 
forward to reviewing the modifications, particularly to Nationwide 
Permit No. 26, and the overall impact of the January 23, 1997, Federal 
court ruling--American Mining Congress versus Army Corps of Engineers--
invalidating the corps' so-called excavation rule. Congressional review 
of these recent developments should help in the overall effort to 
reauthorize and improve the Clean Water Act, including the wetlands 
permitting program.

                          ____________________