[Congressional Record Volume 144, Number 11 (Thursday, February 12, 1998)]
[Senate]
[Pages S719-S720]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
THE FEDERAL WETLANDS PERMIT PROGRAM
Mr. LOTT. Mr. President, I want to call attention to a Federal permit
program that is causing problems in Mississippi, in the Southeastern
United States and, indeed, in the entire United States: the Federal
Section 404 ``wetlands'' permit program. This program has its roots in
Section 404 of the Clean Water Act, but has been designed primarily by
the Federal courts and the Federal agencies, the Environmental
Protection Agency and the U.S. Army Corps of Engineers, and not by the
elected officials of this Nation.
Twenty years have passed since the Congress of the United States has
addressed this program legislatively. Currently, a Federal appellate
court decision, two pending appellate court cases and a new proposed
rulemaking by the Corps of Engineers are stirring up controversy about
this program. No one should be surprised. This program is held together
by baling wire and string and pieces are beginning to fall off all over
the place.
I encourage the Senate Environment and Public Works Committee to
bring to the full Senate legislation that makes meaningful, common
sense changes to the Section 404 permit program. Review of this program
is long overdue. Mr. President, I hope that this Congress can take
meaningful action on the Section 404 program in 1998.
One basic controversy about this program is the issue of the areas
that are regulated as wetlands. The Federal agencies have interpreted
their jurisdiction to extend to the farthest reaches of the Commerce
Clause, and, I think, even beyond, including those isolated areas that
merely ``could affect'' interstate commerce. Specifically, to some
agencies this means those areas where a migratory bird ``could'' land.
To make this grab for jurisdiction worse, according to the U.S. Fish
and Wildlife Service, 75 percent of all Section 404 regulated areas are
on privately owned property!
On December 23, in Wilson v. United States Corps of Engineers, the
United States Court of Appeals for the Fourth Circuit overturned the
criminal convictions of an individual, a corporation and a partnership
for violating the Section 404 program in Charles County, Maryland. The
individual had been sentenced to 21 months in jail and the three
defendants had been fined a total of $4 million. The Fourth Circuit
overturned the convictions and remanded the case to the district court,
finding that only those areas that are either connected on the surface
to navigable waters or are proven to be in interstate commerce could be
regulated under the Section 404 program. Specifically, the court held
that:
Absent a clear indication to the contrary, we should not
lightly presume that merely by defining `navigable waters' as
`the waters of the United States', Congress authorized the
Army Corps of Engineers to assert its jurisdiction in such a
sweeping and constitutionally troubling manner. Even as a
matter of statutory construction, one would expect that the
phrase `waters of the United States', when used to define the
phrase `navigable waters' refers to waters which, if not
navigable in fact, are at least interstate or closely related
to navigable or interstate waters. When viewed in light of
its statutory authority, (the regulation), which defines
`waters of the United States' to include intrastate waters
that need have nothing to do with navigable or interstate
waters, expands the statutory phrase `waters of the United
States' beyond its definable limit.
Accordingly, we believe that in promulgating (the
regulation), the Army Corps of Engineers exceeded its
congressional authorization under the Clean Water Act, and
that, for this reason, (the regulation) is invalid.
At long last, this case begins to limit the reach of the bureaucracy
onto privately owned property under this program.
A second area of controversy is a regulation issued by the Clinton
Administration in September, 1993, that broadly expanded the definition
of activities that are regulated under the Section 404 program. As many
of you know, this permit problem was never designed to be a wetlands
permit program, but rather evolved in that direction through judicial
rulings and agency interpretations. The activities in ``wetlands'' that
are regulated under Section 404 of the Clean Water Act are the
``discharge of dredged and fill material'' into the ``navigable
waters''. On the face of it, the statute does not cover other
activities that could degrade wetlands, such as ``draining'' or
``excavating'' wetlands. Obviously, if we are going to have a wetlands
regulatory program and protect valuable wetlands, the program needs to
cover ``drainage'' and ``excavation.''
In September 1993, the Clinton Administration issued a rulemaking
that expanded coverage of the Section 404 program to include activities
like drainage and excavation. Many of us noted that this might be good
public policy, but this expansion exceeded the statute, and legislation
would be necessary to expand the program to cover these activities.
On January 23, 1997, a Federal district court in the District of
Columbia struck down this regulation, called the Tulloch rule, as
exceeding the statutory authority of the Clean Water Act. On January 9,
1998, the United States Court of Appeals for the District of Columbia
Circuit heard oral arguments in this case. The Federal government had a
rough day in court. I am told that the judges suggested that the agency
interpretation of the jurisdictional reach of the Section 404 program
went as far as ``land that might be wet someday''. One of the appellate
judges asked the government attorney whether riding a bike through a
wetland, where dirt accumulated on the tires and then fell off into the
wetland during riding, would be an activity regulated under the Section
404 program. The government attorney answered yes, but the regulation
was not aimed at this activity. The judge answered correctly, ``Not
yet!''
This brings me to a recent Corps judgment on Nationwide Permit 26
that was attacked on the front page of the Washington Post on Saturday,
January 31st.
[[Page S720]]
With the Corps and the EPA interpreting almost every activity as one
covered by the Section 404 program, the Corps has adopted a series of
Nationwide Permits that cover routine activities and prevent the
necessity of proceeding through the costly and time-consuming normal
permitting process. One of these permits, Nationwide Permit 26, which
covers certain areas up to 3 acres in size, is scheduled to expire in
December 1998. The Corps is developing a series of ``replacement
permits''. These ``carve outs'' are essential if the Corps is to be
able to manage this program without enormous delays in permit
processing times. This is particularly true as the bureaucracy
continually expands the types of activities that are regulated under
the Section 404 program. Yet, some interest groups are attempting to
pressure the Administration to reject these replacement permits. If
they are successful, I am convinced that the program will fall into
disarray, prompting calls not only for the reform of the current
program, but the repeal of the whole thing. We will all have to keep an
eye on this development.
Finally, a case is pending in the United States Court of Appeals for
the Ninth Circuit styled Resource Investments, Inc. v. U.S. Army Corps
of Engineers. In this case, the Corps used its Section 404 regulations
to overturn the judgment of a county government in a public bid process
regarding the location of a new solid waste disposal facility. I can
assure you that it is not this Senator's view that the mission of the
Army Corps of Engineers is to make judgments that historically have
been within the purview of local elected officials.
Mr. President, this is just a quick survey of some of the judgments
that are being made by Federal agencies and Federal courts regarding
the Section 404 program. These judgments sometimes expand and sometimes
narrow this program. What is missing--and has been missing for 20
years--is the judgment of elected officials about fundamental aspects
of this regulatory program that defy common sense and so often intrude
on privately owned property, local economic activities and governmental
infrastructure decisions. It is long-past time for the committee of
jurisdiction over this program to bring forth legislation that proposes
meaningful and responsible adjustments to this awful program.
By the way, Mr. President, I should add one more thing. The current
President of the United States, when he was the Governor of Arkansas,
chaired the Lower Mississippi River Delta Development Commission. The
statutory charge of this Commission was to study the seven-state Lower
Mississippi River Delta region and to develop a ten-year regional
economic development plan. This is a particularly troubled region
economically. Both my state of Mississippi and the President's state of
Arkansas contain portions of the Lower Mississippi River Delta.
In May, 1990, the Commission filed its report, which was submitted to
Congress over the signature of the current President. That report
specifically addressed the problems of Federal wetlands regulation,
stating:
The national wetlands policy has caused significant
problems for agriculture, aquaculture and commercial and
industrial development.
* * * * *
Current definitions do not adequately differentiate the
quality of wetlands.
* * * * *
Current interpretations of the national wetlands policy
have placed major limitations on the Delta's economy because
commercial and industrial development is being impaired. (all
quotes from page 80 of the report)
The report then made a number of recommendations, including these two
from page 81 of the report:
Congress should direct appropriate federal agencies to
establish minimum-sized wetlands for regulation.
* * * * *
Congress should assign the responsibility for
identification and maintenance of a wetlands inventory to one
agency, and require consultation with other affected
agencies.
Mr. President, the President of the United States seems to have
forgotten what he learned as chair of the Lower Mississippi River Delta
Development Commission. The current Federal Section 404 permitting
program regulates all wetlands regardless of size and is administered
by two Federal agencies: the Corps of Engineers and the EPA. The
President was correct with respect to these recommendations in 1990,
but now that he is in a position to act, nothing has happened. I would
hope that the President of the United States would submit at least
these meaningful changes to Congress for our consideration in 1998.
Mr. BOND. Mr. President, I share the concerns of the Majority Leader
regarding the shortcomings of the Section 404 program. In light of the
recent and pending court cases, as well as the ongoing controversy over
the scheduled demise in December of Nation Wide Permit 26, I agree
strongly that Congress must address the Section 404 program
legislatively. We should not continue to let the program bob and weave
and stray in response to interpretations or policy preferences of each
successive court decision or agency action. The law is unpredictable
and it is not fair to the agencies administering the law or the
landowners impacted by the law.
Based on accounts of the oral arguments in the United States Court of
Appeals for the District of Columbia Circuit, and subsequent
conversations my staff has had with various officials, it appears very
possible that the lower court decision on the ``Tulloch'' rule will be
upheld. The ``Tulloch'' rule extends regulation under the Section 404
program to activities like ``drainage'' and ``excavation'' that harm
wetlands. The lower court held that expanding the Section 404 program
to cover these activities might be very good public policy, but the
current statute does not cover these activities. Legislation expanding
the program will be needed. In its successful attempt to obtain a stay
of the lower court decision, the Federal government filed documents
suggesting that the failure to regulate ``drainage'' and ``excavation''
would be an environmental catastrophe. Thus, if the Court of Appeals
upholds the lower court decision, legislation will be necessary to
cover these activities.
My colleague from Louisiana and I have released a series of proposals
in a ``discussion draft'' to encourage discussion of these difficult
issues. One proposal in the draft would expand the activity regulated
under Section 404 to include ``drainage'' and ``execution.'' This draft
signals our commitment to engage in a constructive process with all
parties to develop legislation that will stabilize the Section 404
program, expand the program to cover activities that are destructive to
wetlands and make a number of common sense changes to the program that
will make it more acceptable to private landowners on whose property
75% of these regulated areas are located.
Senator Breaux and I released our discussion draft last summer. Time
is growing short in this session of Congress, yet there is still time
to act if there is a willingness of the various stakeholders to
negotiate constructively and the will for us to legislate. I believe
that I speak for my colleague from Louisiana when I pledge our
cooperation in any reasonable process to develop Section 404
improvement legislation that will earn the support of a majority of our
colleagues and will be good both for the environment and the regulated
community.
Mr. President, I agree with the Majority Leader. Twenty years without
legislative attention is long enough for the Section 404 program. The
time has arrived to tackle this difficult issue.
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