[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.

                          ____________________