[Congressional Record Volume 144, Number 17 (Friday, February 27, 1998)]
[Pages S1147-S1150]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


  The PRESIDING OFFICER. Under the previous order, the Senate will now 
resume consideration of S. 1173, which the clerk will report.
  The assistant legislative clerk read as follows:

       A bill (S. 1173) to authorize funds for construction of 
     highways, for highway safety programs, and for mass transit 
     programs, and for other purposes.

  The Senate resumed consideration of the bill with a modified 
committee amendment in the nature of a substitute (Amendment No. 1676).
  Mr. CHAFEE addressed the Chair.
  The PRESIDING OFFICER. The Senator from the great State of Rhode 
  Mr. CHAFEE. Mr. President, I am delighted that the Senator from 
Missouri is here. It is my understanding that he has an amendment he is 
prepared to present. I would just use this opportunity, before we start 
on the Senator's amendment, to urge all Senators to come with 
  We are ready to do business here. There are a host of amendments. As 
we know, under the ground rules, we are not taking up amendments that 
deal with financial matters, but there are a whole host of other 
amendments that do not deal with those particular subjects. We would 
certainly like to dispose of them. So I do urge all Senators who have 
amendments to come to the floor and bring them up.
  I thank the Chair.
  Mr. BOND addressed the Chair.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BOND. Mr. President, I thank my good friend from Rhode Island. 
Let me begin by saying it is high time. I am anxious for this bill to 
move forward. I am very pleased to be here today with my colleagues to 
talk about this very important highway and transportation legislation 
and to offer an amendment which I believe has been cleared on both 
  Mr. President, this past October, November, I had the pleasure of 
working with our distinguished committee chairman, Senator Chafee, and 
the subcommittee chairman, and my good friend, Senator Warner, and the 
ranking member, Senator Baucus, to forge an interim solution that 
produced a short-term extension for this vital highway and 
transportation legislation that provided necessary resources to make 
certain that the orange cones and barrels that signal highway 
construction underway would continue to drive drivers nuts and show 
them that progress is being made.

  But as already has been pointed out on the floor numerous times over 
the last couple weeks, we only passed an extension, one that does 
expire. Let me tell my colleagues that getting agreement in passing the 
extension was not easy. However, it did give us an idea of the 
complexity of what we have ahead of us.
  We all know the importance and the role that transportation plays in 
our everyday lives and especially in our economy. We absolutely must 
improve upon the existing infrastructure--that is, the roads, the 
bridges, the transportation systems--and determine better ways to meet 
our transportation needs. That is why I worked with the distinguished 
chair and ranking member and the subcommittee leaders to produce the 
bill that is now pending.
  I am very pleased to support and urge the adoption of that measure. 
As Senator Chafee said yesterday, this bill was reported unanimously 
out of committee--I repeat, unanimously out of committee. This happened 
because the bill, called ISTEA II, builds our new policy solidly on our 
commitment to the concrete and asphalt reality that roads and bridges 
are and will continue to be the foundation of our transportation 
  Mr. President, for me and for the people of my State of Missouri, 
highways are not an academic debate. They are a matter of life and 
death. All of us have heard the statistics about how our inadequate 
highways contribute to 114 deaths on our Nation's highways each day. 
Missouri's highway fatality rate is above the national average. I am 
reminded of these tragedies every time I go home. Every time I travel 
to a new part of the State, they have lost someone or several people on 
the highways.
  Missouri has roads designated as part of the National Highway System 
that have no shoulders. We have two-lane roads carrying traffic meant 
for four lanes. These are real death traps, because somebody who is not 
familiar with the road, too often an out-of-State visitor to our State, 
makes a mistake and crosses over the center line with tragic 
consequences to them and to some other innocent party as well. And our 
bridge needs are perhaps greater than any other State.
  I drove last Friday over the bridge at Hermann, MO. It is an eerie 
feeling driving over a highway bridge and looking down at the river 
below and seeing it through the bridge that you are driving over. Mr. 
President, that is not fun. That gets your attention. The people know 
that these bridges are not going to last forever.
  Missouri has too many highways marked with white crosses along the 
side where people have died. The white crosses are in memory of the 
loved ones who will never return because of our inadequate highways.
  Reauthorization of this measure, this highway transportation measure, 
is imperative. We must move forward. I know that maintaining our 
Nation's roads and bridges is not always a glamorous issue or 
undertaking. Too often we hear discussions about priority items that 
take our attention away. But as with the debate raging in education 
circles about improving our Nation's crumbling schools, so goes the 
equally important debate about improving our transportation 
infrastructure, our roads and highways and bridges. Here it is lives we 
are talking about.
  Mr. President, reasonable people do have passionate differences. We 
see that every day on the Senate floor. All of us who were here in 1991 
can recall that debate can get ugly over those differences, especially 
when money is involved. Overall funding has proven to be one of the 
difficult issues already, and the floor debates have not even started 
on formulas yet.
  We all know there are tremendous challenges in meeting our aim of 
balancing the budget and our commitment to the American people to do 
so. I am ever mindful of and support achieving this goal. However, I do 
know the importance of the transportation infrastructure, the roads and 
highways and bridges and transportation needs of this country and the 
desire to provide for increased funding to meet those needs.

[[Page S1148]]

  As a member of the Budget Committee, the Appropriations Committee and 
the Environment and Public Works Committee, I am committed and pledge 
my support in working to find a solution that will provide the 
increased funding necessary for transportation while maintaining our 
commitment to a balanced budget.
  I expressed my appreciation to the majority leader, Senator Lott, and 
to our Budget Committee chairman, Senator Domenici, who are working 
together and working with us to provide the resources we need to put 
the ``trust'' back in the highway trust fund.
  I do support the highway money going for highways and transportation 
needs. My goal has always been to increase the size of the overall pie 
for highways and transportation and, as well, to increase Missouri's 
share. I will do everything possible to ensure that the State of 
Missouri gets a full, fair share back.
  Maybe S. 404, which is known as the Bond-Chafee Highway Trust Fund 
Integrity Act, introduced with the distinguished chairman a year ago, 
is part of the overall funding solution. It does not take the highway 
trust fund off budget, but it does ensure that the ``trust'' is put 
back in the trust fund. That is a goal that I believe we all share.
  I hope that negotiations on the overall funding level continue. If we 
can get a $28 billion highway program, let us do it. Let us work to 
achieve the allocation and the commitment of the highway trust fund 
moneys going back to highway trust fund purposes.
  Mr. President, unfortunately, when we talk about Federal money and 
formulas, there are always clear-cut winners and losers. I know 
Missouri has been on both sides, too often on the losing side. But none 
of this goes away if we wait. I thank the majority leader and I thank 
the chairman and the ranking member for bringing this up.
  Now, Mr. President, unless the chairman has other matters, I wish to 
introduce an amendment that I believe has been cleared on both sides.

                Amendment No. 1677 to amendment no. 1676

   (Purpose: To require that, in funding natural habitat and wetland 
     mitigation efforts related to Federal-aid highway projects, a 
 preference be given, to the maximum extent practicable, to the use of 
                       certain mitigation banks)

  Mr. BOND. Mr. President, I send an amendment to the desk on behalf of 
myself, Senator Breaux, and Senator Lott and ask for its immediate 
  The PRESIDING OFFICER. The clerk will report the amendment.
  The assistant legislative clerk read as follows:

       The Senator from Missouri [Mr. Bond], for himself, Mr. Lott 
     and Mr. Breaux, proposes an amendment numbered 1677.

  Mr. BOND. Mr. President, I ask unanimous consent that further reading 
of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       Beginning on page 181, strike line 20 and all that follows 
     through page 183, line 23, and insert the following:

     esses. With respect to participation in a natural habitat or 
     wetland mitigation effort related to a project funded under 
     this title that has an impact that occurs within the service 
     area of a mitigation bank, preference shall be given, to the 
     maximum extent practicable, to the use of the mitigation bank 
     if the bank contains sufficient available credits to offset 
     the impact and the bank is approved in accordance with the 
     Federal Guidance for the Establishment, Use and Operation of 
     Mitigation Banks (60 Fed. Reg. 58605 (November 28, 1995)) or 
     other applicable Federal law (including regulations).
       ``(N) Publicly-owned intracity or intercity passenger rail 
     or bus terminals, including terminals of the National 
     Railroad Passenger Corporation and publicly-owned intermodal 
     surface freight transfer facilities, other than seaports and 
     airports, if the terminals and facilities are located on or 
     adjacent to National Highway System routes or connections to 
     the National Highway System selected in accordance with 
     paragraph (2).
       ``(O) Infrastructure-based intelligent transportation 
     systems capital improvements.
       ``(P) In the Virgin Islands, Guam, American Samoa, and the 
     Commonwealth of the Northern Mariana Islands, any project 
     eligible for funding under section 133, any airport, and any 
       ``(Q) Publicly owned components of magnetic levitation 
     transportation systems.''.

                   TRANSPORTATION PROGRAM.

       Section 133(b) of title 23, United States Code (as amended 
     by section 1232(c)), is amended--
       (1) in paragraph (2), by striking ``and publicly owned 
     intracity or intercity bus terminals and facilities'' and 
     inserting ``, including vehicles and facilities, whether 
     publicly or privately owned, that are used to provide 
     intercity passenger service by bus or rail'';
       (2) in paragraph (3)--
       (A) by striking ``and bicycle'' and inserting ``bicycle''; 
       (B) by inserting before the period at the end the 
     following: ``, and the modification of public sidewalks to 
     comply with the Americans with Disabilities Act of 1990 (42 
     U.S.C. 12101 et seq.)'';
       (3) in paragraph (4)--
       (A) by inserting ``, publicly owned passenger rail,'' after 
       (B) by inserting ``infrastructure'' after ``safety''; and
       (C) by inserting before the period at the end the 
     following: ``, and any other noninfrastructure highway safety 
       (4) in paragraph (11)--
       (A) in the first sentence--
       (i) by inserting ``natural habitat and'' after 
     ``participation in'' each place it appears;
       (ii) by striking ``enhance and create'' and inserting 
     ``enhance, and create natural habitats and''; and
       (iii) by inserting ``natural habitat and'' before 
     ``wetlands conservation''; and
       (B) by adding at the end the following: ``With respect to 
     participation in a natural habitat or wetland mitigation 
     effort related to a project funded under this title that has 
     an impact that occurs within the service area of a mitigation 
     bank, preference shall be given, to the maximum extent 
     practicable, to the use of the mitigation bank if the bank 
     contains sufficient available credits to offset the impact 
     and the bank is approved in accordance with the Federal 
     Guidance for the Establishment, Use and Operation of 
     Mitigation Banks (60 Fed. Reg. 58605 (November 28, 1995)) or 
     other applicable Federal law (including regulations).''; and

  Mr. BOND. Mr. President, this amendment on wetlands mitigation 
banking has been cleared by both sides, and has been reviewed by EPA 
and the Corps who have no objection. It is, I believe, consistent with 
administration policy. It is supported by the Association of State 
Highway and Transportation Officials and the National Wetlands 
Coalition. I believe this amendment is good for wetlands protection. It 
promotes private sector efforts to protect wetlands, and it saves money 
that can be used on highways or other authorized uses under this act. 
This is a win-win-win amendment.
  Now, let me tell you what the amendment does. It simply provides, 
when highway projects result in impact to wetlands that require 
compensatory mitigation--a big word saying: If you take away a wetland 
here, you have to restore a wetland there so we do not have any loss of 
wetlands. That is required under current law. Here in this amendment we 
say that preference can be given, to the extent practical, to private 
sector mitigation banks.
  The amendment mandates that the banks be approved in accordance with 
the administration's Federal guidance on mitigation banking issued in 
1993. It requires that the bank be within the service area of the 
impacted wetlands.
  Mitigation is usually accomplished by restoring or creating other 
wetlands. Isolated, on-site mitigation projects are expensive and often 
costly to maintain. Wetlands mitigation banks, on the other hand, are 
typically large tracts of land that have been restored as wetlands. A 
State department of transportation building a highway project which 
impacts wetlands near a bank buys ``credits'' generated from the bank 
based on the acreage quality of restored wetlands in order to satisfy 
its obligation to mitigate the harm to impacted wetlands.
  The bank sponsor assumes full responsibility for maintaining the 
restored wetland site, and the State Transportation Department has 
fulfilled its mitigation requirement and can get on with the work on 
much-needed projects.
  The amendment does nothing to change the mitigation requirement. It 
simply provides that mitigation banking will be the preferred 
alternative, where available, once mitigation requirements are found to 
  In 1996, the Committee on Environment and Public Works held a hearing 
where witnesses from the administration, the private sector, the 
environmental community, and the scientific community spoke to the 
promise of mitigation banking as being an important instrument to 
protect wetlands and to do so with less expense and less red tape.
  Robert Perciasepe, Assistant Administrator in the Office of Water at 

[[Page S1149]]

testified to ``EPA's strong support for mitigation banking.''
  In his testimony, he said, ``It's a unique win-win proposition. It's 
great for landowners because it makes the permitting process simpler 
and easier. . . . It's great for the environment because the 
consolidation of multiple mitigation projects into a single, large 
mitigation bank leads to greater environmental benefit in terms of the 
enhancement of wildlife habitat and the improvement of local water 
quality and flood control.''
  I will add that as a matter of policy, we have a great opportunity 
with mitigation banking to protect wetlands by making wetlands 
protection a profitable private enterprise.
  This effort is supported by the Missouri and Ohio Departments of 
Transportation and by AASHTO. Let me quote for you a September 1997 
letter from the Director of the Ohio Department of Transportation:

       ODOT's costs for onsite mitigation have ranged as high as 
     $150,000 per acre, when cost of design, real estate, 
     construction and mitigation monitoring are combined. These 
     costs are not out of line with the high-end costs experienced 
     by many other DOTs around the country. Our lowest costs for 
     onsite mitigation have generally exceeded $35,000 per acre. 
     The cost of banking, in our experience, has ranged from 
     around $10,000 to $12,000 per acre and includes all of the 
     above cited cost factors. This equates to about one-quarter 
     the cost of our average onsite mitigation.

  The States of Florida and Illinois, in the Chicago area, have already 
had a similar experience.
  This savings is significant and it can be achieved because of 
specialization and economies of scale. As a result, less federal 
highway money is spent on mitigating impacts to wetlands, and more 
federal highway money is made available for highway construction.
  Many agree that mitigation banks, approved in accordance with 
Administration guidance, will have a greater long term rate of success 
in protecting wetlands because: (1) they are in the business of 
wetlands protection and have the expertise; (2) banks are easier to 
regulate and be held accountable; and (3) because there is more time 
and flexibility for a bank to identify and procure high quality 
  I appreciate the assistance of the chairman, Senator Chafee, and 
Senator Baucus with this amendment.
  Again, this is good for the environment and the efficiencies will 
permit more of our precious highway dollars to be spent on highways. I 
urge the adoption of this bipartisan amendment.
  I yield the floor.
  Mr. LOTT. Mr. President, I wish to express my support for an 
amendment to the Federal highway bill that is simple and 
  The amendment improves the environment and it saves federal highway 
dollars--two worthy goals.
  The amendment establishes a preference for the use of wetlands 
mitigation banks to offset impacts to wetlands caused by the 
construction of highways funded under the federal highway program.
  The amendment is not a mandate. It provides only that mitigation 
banking is the preferred alternative for mitigating wetlands impacts 
where there is a bank in the area of the highway project.
  The amendment is an incentive-based strategy for environmental 
protection that enjoys bipartisan support. Members of Congress on both 
sides of the aisle know that this is the only real way to achieve 
  The amendment is sponsored by my friends and colleagues Senators 
Christopher ``Kit'' Bond and John Breaux.
  Mitigation banking refers to a large wetlands restoration effort 
where a ``bank'' of wetlands, usually 100 acres or more, is undertaken 
to compensate in advance for future wetlands losses from nearby 
development. The best sites for restoration of wetlands are often lands 
that used to be wetlands but were drained in order to plant crops. 
Mitigation bankers take a number of steps, such as breaking up drainage 
tiles, in order to reintroduce water to the site. Sometimes mitigation 
bankers replant native species, but often existing seed banks 
revegetate the land naturally once the water has been restored. Before 
long, a large, fully functioning wetlands ecosystem has been 
reestablished. Under federal guidelines, ``credits'' are generated 
based on the acreage and quality of the restored wetlands. The credits 
may then be sold to those who must restore wetlands to make up for 
those they have been allowed to disturb in order to build their school, 
office park, or other nearby project.
  In the context of highway construction, mitigation banking works as 
follows: a state department of transportation building a highway 
project that affects wetlands near a mitigation bank may buy credits 
from the mitigation bank. The state DOT fulfills its mitigation 
requirement by purchasing sufficient credits from the bank to offset 
the loss of wetlands from the project, and the bank sponsor assumes 
full responsibility for maintaining the restored wetlands site.
  Of course, the current federal highway program already allows federal 
funds to be used to mitigate adverse effects on wetlands caused by 
highway construction. But small, isolated, on-site mitigation projects 
are expensive and costly to maintain given the many small wetlands 
affected by a typical new highway project. In contrast, mitigation 
banks consolidate small, isolated wetlands mitigation efforts into 
large, high quality, diverse wetlands habitat. As a result, mitigation 
banks provide greater environmental benefits than piecemeal mitigation.
  The Bond-Breaux amendment provides simply that mitigation banking 
will be the preferred alternative for wetlands mitigation efforts paid 
for with federal highway money where there is a bank in the area of a 
highway project. Banks must be approved under the federal guidance on 
mitigation banking.
  In addition to benefiting the environment, use of mitigation banks 
will save federal highway dollars that can be made available for more 
highway construction. Experience has clearly demonstrated that private 
mitigation bankers can restore high quality wetlands at significantly 
less cost than state departments of transportation, as my colleague 
from Missouri has pointed out.
  This amendment is supported by the Corps of Engineers, EPA, the 
American Association of State Highway Transportation Officials, and 
numerous state departments of transportation. Even my own State of 
Mississippi believes this is a smart environmental idea and a smart 
highway idea.
  It doesn't surprise me that this amendment is sponsored by the 
Senator from Missouri, Mr. Bond, Senator Bond's creative mind has 
produced an innovative answer to this thorny environmental policy. All 
Americans know the value of wetlands and recognize the contributions of 
an effective transportation infrastructure. Mr. Bond has found a way to 
balance the problems and provide a smart solution.
  Mr. Bond has provided a win-win solution. His amendment encourages 
the investment of private sector resources and technology in wetlands 
restoration. It establishes a policy that rewards doing the right thing 
for the environment. I congratulate the Senator for his foresight, good 
judgment, and leadership.
  I am also not surprised to see the Senator from Louisiana, Mr. 
Breaux, joining Senator Bond in sponsoring this amendment. I citizens 
of Louisiana know what wetlands are because most of their state is 
classified as one. They know this type of public policy is a smart way 
to do highway business. I also commend my friend from Louisiana for his 
leadership on this amendment.
  Mr. President, in closing, this is an excellent amendment that will 
save federal highway dollars, benefit the environment, and allow 
federal highway projects to go forward more quickly and with more 
certainty. It has my strong support, and deserves that of my 
  Mr. CHAFEE addressed the Chair.
  The PRESIDING OFFICER (Mr. Brownback). The Senator from Rhode Island.
  Mr. CHAFEE. Mr. President, I commend the Senator from Missouri for 
this amendment. It is an excellent one. What it will do is have a 
wetland of a larger size than would be under normal conditions. When 
they do damage to a wetland, they create a new wetland next to the 
highway. To have it in the so-called mitigation bank is a far superior 
way of operating, and I commend the Senator.
  The amendment will improve the mitigation that is done to offset the

[[Page S1150]]

loss and degradation of wetlands as a result of highway projects. We 
have suffered unacceptable wetlands losses--more than half of the 
estimated 220 million acres that existed when the nation was founded 
have been lost.
  Transportation has unintended but negative consequences on the 
nation's wetlands. The original ISTEA recognized this by establishing 
wetlands mitigation as an eligible expense of a State's highway 
construction funds. Mitigation banking is an innovative concept that 
allows a person who wishes to fill a wetlands to compensate for that 
loss by obtaining credits representing positive wetlands function 
generated at a nearby site. It is the perfect example of a forward-
looking environmental policy that offers more bang for the buck.
  With respect to highway construction, mitigation banking offers 
several potential advantages over on-site, individual mitigation. A 
mitigation bank, unlike on-site mitigation, can consolidate wetlands 
compensation where it is most ecologically beneficial. Moreover, 
mitigation banking helps to achieve the goal of ``no net loss'' of the 
Nation's wetlands by providing additional opportunities to compensate 
for impacted wetlands. So I thank Senators Bond and Breaux again for 
their work on this.
  We are prepared to accept the amendment.
  Mr. BAUCUS addressed the Chair.
  The PRESIDING OFFICER. The Senator from Montana.
  Mr. BAUCUS. Mr. President, we all want to protect wetlands, and we 
know when highways are constructed that wetlands are often in jeopardy. 
It is in the law that when a highway is constructed which does 
jeopardize a wetland, an offset must be provided for; that is, the 
developer or the contractor has to find some other way to enhance or 
improve the wetland.
  This is another step in that direction. It is a step toward greater 
efficiency, namely, where someone may enhance, develop a wetland, get 
credit for it, and the contractor comes along and goes to the bank 
which already has the credit for the wetland. It is a much more 
efficient process for getting the job done. I compliment the Senator 
from Missouri for coming up with this idea. We accept the amendment.
  Mr. CHAFEE. Mr. President, I urge the adoption of the amendment.
  The PRESIDING OFFICER. Is there further debate? If not, the question 
is on agreeing to the amendment.
  The amendment (No. 1677) was agreed to.
  Mr. BOND. Mr. President, I move to reconsider the vote by which the 
amendment was agreed to.
  Mr. CHAFEE. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. BREAUX. Mr. President, I thank the Senate for accepting the Bond-
Breaux amendment to S. 1173. It has been my privilege to cosponsor the 
proposal with the Senator from Missouri, Senator Bond, and to continue 
our work together on wetlands-related issues.
  I express my deepest appreciation to the Majority Leader, Senator 
Lott, and to the Committee Chairman and Ranking Member, Senator Chafee 
and Senator Baucus, for their support. I also look forward to working 
with them on this issue as the intermodal surface transportation bill 
advances through Congress.
  The Bond-Breaux amendment proposes to establish a reasonable, 
responsible wetlands and natural habitat mitigation policy as part of 
the federal aid highway program.
  Our language says that mitigation banking shall be the preferred 
means, to the maximum extent practicable, to mitigate for wetlands or 
natural habitat which are affected as part of a federal-aid highway 
project and whose mitigation is paid for with federal funds.
  The amendment establishes three criteria which are to be met in order 
to use a mitigation bank: first, the affected wetlands or natural 
habitat are to be in a bank's service area; second, the bank has to 
have enough credits available to offset the impact; and third, the bank 
has to meet federally-approved standards.
  The Bond-Breaux amendment does not mandate the use of mitigation 
banks nor does it say they shall be the sole means or the only method 
used to mitigate for wetlands or natural habitat affected by a federal-
aid highway project.
  Mitigation banks can offer advantages when built and operated 
responsibly, including achieving economies of scale and providing 
larger, higher-quality diverse habitat.
  Again, I'm pleased to join with Senator Bond in sponsoring the 
amendment, pleased that it has been accepted as part of S. 1173, and 
appreciative of the support extended for it by Senator Lott, Senator 
Chafee and Senator Baucus.
  Thank you, Mr. President.
  Mr. CHAFEE. Mr. President, again, I thank the Senator from Missouri. 
I see no other individual prepared to offer an amendment. I urge 
Senators to come to the floor. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. GRAMS. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GRAMS. Mr. President, I ask that I be allowed to speak out of 
order for 20 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.