June 5, 1975
Page 17346
WATER POLLUTION CONTROL
Mr. MUSKIE. Mr. President, in 1972, the Congress comprehensively revised Federal water pollution control policy. The 1972 Clean Water Act established a minimum and uniform regulatory regime for the control of the discharge of effluents into the navigable waters of the United States.
Prior to the enactment of the 1972 amendments, Federal responsibility for water pollution control was limited to approval of State water quality standards and associated implementation plans for interstate streams. Interstate streams were defined administratively to include only a small portion of the Nation's surface waters. Few sources of pollution were actually subject to Federal abatement action. The result was an inadequate unsystematic water pollution program which was in no way responsive to the Nation's demand for clean water.
The only significant enforcement tool available to the Environmental Protection Agency was the little-known 1899 Refuse Act which barred the discharge of material into the Nation's navigable streams without a permit. The decision to use that statute, combined with the recognition of the inadequacy of the water quality standards approach to pollution control led the Congress to revise the basic national water pollution law.
The 1972 law prohibits any discharge into the Nations' navigable waters without a permit from the Environmental Protection Agency. The Environmental Protection Agency was given the authority to regulate all discharges into navigable waters except for the discharge of dredge or fill material which is regulated by the Secretary of the Army. Also, in 1972, the Congress broadened the traditional definition of navigable waters in recognition of the fact that pollutants migrated into the Nation's waters through water courses, swamps, creeks, and underground sources, many of which simply were not "navigable" in the traditional sense but the pollution impact was sufficient to merit regulation.
Thus, the term navigable waters was defined to mean "waters of the United States including the territorial seas." The Senate report on the 1972 act noted that–
Water moves in hydrologic cycles ... and therefore, reference to the control requirements must be made to the navigable waters, portions thereof, and their tributaries.
To complete the history on this issue, the 1972 act defines discharge of pollutant as "any addition of any pollutant to navigable waters to a point source"; and goes on the define point source as "any discernable, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged."
Thus, any discharge of any pollutant is subject to Federal regulation, if such discharge is from a point source into a navigable water, either by the Environmental Protection Agency – or a State – or the Corps of Engineers. The law did not authorize regulation of pollutants which migrate to the navigable waters from nonpoint sources. Pollutants which run from farmers’ fields, overflow from farmers’ stock ponds or otherwise enter the navigable waters from nonpoint sources are subject to State regulation and State regulation only.
Mr. President, I cite this extensive legislative history because of a controversy which has been provoked by a distorted and mischievous announcement of regulatory action by the U.S. Army Corps of Engineers relative to its responsibility to regulate the discharge of dredge or fill material into the navigable waters. The Corps, in what appears to be a deliberate attempt to distort Federal water pollution policy for purposes which I do not understand, publicly announced that a court decision which upheld the intent of Congress as regards the meaning of navigable waters would have the effect of placing thousands of farmers in violation of Federal law. Nothing could be
further from the truth and the Corps knows it.
The Administrator of the Environmental Protection Agency, Russell Train, has castigated the Corps for what he describes as a "seriously inaccurate and misleading press release." I ask unanimous consent that Administrator Train's letter, as well as a Washington Post editorial be inserted in the RECORD at the end of my remarks. I also ask unanimous consent that a letter from me to Secretary of the Army Howard Callaway be printed in the RECORD as well.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. MUSKIE. Mr. President, I have called on the Secretary of the Army to publicly retract the press release which has already caused so much concern and confusion regarding this important issue. I have asked that the Secretary's announcement of retraction be circulated to the media and placed in the Federal Register and I have asked the Secretary to investigate carefully to determine how and why this unfortunate event came to pass.
I only hope that this matter can now be ended and we can get on with the job of regulating the discharge of dredge or fill materials in such a manner as to protect both the Nation's wetlands and the quality of all of the Nation's waters.
EXHIBIT 1
WASHINGTON, D.C.,
May 16, 1975.
Lt. Gen. WILLIAM C. GRIBBLE, JR.,
Chief of Engineers,
Washington, D.C.
DEAR GENERAL GRIBBLE: It is becoming increasing apparent that the recently proposed regulations and guidelines published by the Corps of Engineers and EPA governing the implementation of section 404 of the Federal Water Pollution Control Act are being misunderstood by the public and by Congress. Most of this confusion and misunderstanding is directly attributable to the seriously inaccurate and misleading press release issued by the Corps at the time the regulations were published. Because of the extreme importance of section 404 as the primary mechanism to protect America's valuable wetland resources, I consider it imperative that the Corps of Engineers take steps to remedy these impressions.
We are particularly concerned that the false impression that farmers must obtain permits whenever they plow a field be corrected. Since this was clearly not contemplated by either the Corps or EPA and is not required by the statute, we fail to understand how such a statement could appear in this press release. As you are well aware, the primary concern of section 404 is to address situations where dredged or fill material is discharged into wetland areas. By no stretch of the imagination can the simple act of plowing be considered to fall within that category.
The Corps has also stated to the public that "millions of people may be presently violating the law." Obviously, there are some discharges of dredged or fill material presently occurring which are not regulated due to the Corps' present restrictive definition. Such discharges should and would be regulated under a broader approach. To say, however, that this number approaches millions is totally without basis.
The illustrations contained in the press release have led to EPA receiving numerous inquires about the types of activities covered by the program. The confusion about its applicability is apparent. For example, it has been suggested that section 404 applies to any area where there is a body of water which has the potential of flooding and that a rice farmer is violating the law if he puts any acreage into cultivation without a permit. Clearly this is not true. While there may be some rice growing operations which are located in wetland areas and which may involve the discharge of fill material for the building of dikes, it is unreasonable to assume that all rice operations fall within this category. Merely because an agricultural operation involves water does not mean that it is subject to section 404. As we indicated in our example to our guidelines, we believe that regulations can be developed which will provide effective administration of a permit program within the broader definition of "navigable waters", without involving the extreme and unwarranted extensions of federal jurisdiction mentioned in your letter.
Both EPA and the Corps have issued policy statements recognizing the need to protect wetland areas. It would be unfortunate indeed if, on the basis of these recent misconceptions, legislative changes were made to return the statutory definition of jurisdiction to traditional concepts of navigability. Such a change would leave vast areas of valuable wetlands without the protection of this regulatory mechanism and possibly subject them to uncontrolled development.
I strongly urge the Corps of Engineers to work with us in the development of our section 404 program within the spirit of the Federal Water Pollution Control Act and to take immediate action to correct the misunderstandings which your department's public statements have created.
Sincerely yours,
RUSSELL E. TRAIN.
WETLANDS AND THE CORPS OF ENGINEERS
Over the years, the Army Corps of Engineers has earned a reputation for its often high-handed disregard of the environment. From time to time, one citizens' group or another would try to stop the Corps when a given project was blatantly ill-conceived, but usually these groups were plowed under as easily as a tree stump by a Corps bulldozer. But then an awareness of the nation's fragile ecology began to spread, and the Corps was forced to adopt a measure of responsibility. It did so – however reluctantly. An indication of just how deep that reluctance has been is seen in a current campaign of the Corps in response to a court order for the engineers to expand their responsibilities under the Federal Water Pollution Act.
Following the March decision of a U.S. District Court judge in Washington – a decision intended to enlist the Corps to prevent developers and builders from destroying ecologically useful wetlands – the Corps responded by announcing that "federal permits may be required by the rancher who wants to enlarge his stock pond, or the farmer who wants to deepen an irrigation ditch or plow a field, or the mountaineer who wants to protect his land against steam erosion."
Such a tactic – rousing farmers and others to think they may need the government's permission to plow a field, dig a ditch or whatever – may have been useful to the Corps in rallying the support of those who think they see a federal big brother behind every tree. Others, with better vision, immediately saw what the Corps was doing. Russell E. Train, director of the Environmental Protection Agency, said in a letter to the Corps that "confusion and misunderstanding" were spreading because of the "seriously inaccurate and misleading" presentation the Corps made following the court order.
A week before Mr. Train's letter, which asked the Corps to end its misleading campaign, a number of environmental groups – including the Natural Resources Defense Council, one of the winning plaintiffs in the original suit, issued a statement alleging that "with the outrageous threat that they are going to strictly police the plowing of fields and construction of farm ponds across the nation, Corps officials are attempting to incite a uninformed backlash from citizens to help the Corps escape the environmental responsibilities Congress has given it."
It is doubtful that many farmers, ranchers or mountaineers are being persuaded by the Corps' presentation. More likely, they would prefer that the engineers get on with the work that the courts, EPA and Congress are asking them to do, and which the Corps knows how to do well.
According to the National Wildlife Federation, America has already lost 40 per cent – 45 million acres – of its wetland resources. An effort is being made to hold the line at that figure. But unless the Corps of Engineers chooses to make a positive contribution, the destruction will go on. If there is any difference this time, it is that the courts, EPA and environmental groups will be watching closely to see that the Corps is held accountable.
JUNE 5, 1975.
Hon. HOWARD H. CALLAWAY,
Secretary of the Army,
The Pentagon,
Washington, D.C.
DEAR MR. SECRETARY: I am deeply concerned by the recent press release of the Corps of Engineers regarding options for the regulation of the discharge of dredge or fill materials into the nation's navigable waters. This press statement is mischievous and distorts an important issue. It demands public retraction.
I would hope you will announce such a retraction in the same manner and with the same vigor which obviously accompanied the original release. Also, I would hope you would investigate the source of the release to determine why it came about in the first place so that any necessary remedial action can be taken.
I am enclosing a copy of the statement which I made on this issue on the floor of the Senate today. I hope that you share my sense of urgency in responding to this issue.
Sincerely,
EDMUND S. MUSKIE,
Chairman,
Subcommittee on Environmental Pollution.