August 30, 1976
Page 28353
AN IMPROPER ROLE FOR THE CORPS OF ENGINEERS
Mr. MUSKIE. Mr. President, when the Committee on Public Works met last week to develop a committee amendment to S. 2710, I differed from a majority of my colleagues on the question of how dredge and fill materials should be regulated and by whom. I voted against proposals that were offered, including the successful Baker-Randolph amendment.
Because of my position on section 404, I shall explain my views in greater detail. The Senate needs to be aware of the history of this section. And the Senate needs to understand the degree to which the Corps of Engineers has abused its discretion, exceeded the intent of the Congress, and acted in a manner inconsistent with what I believe to be good public policy.
I shall attempt to put this issue in perspective and to provide the reasons why I am inclined to support striking section 404 from the act. I share my colleagues’ concern with the obvious and unwarranted extension of the Corps of Engineers' regulations into activities which were not intended by the Congress.
Section 404 was included in the 1972 act as an exception to the otherwise comprehensive regulatory program. It has had a damaging effect. It has not led to the end of open water discharge of dredge spoil — its primary purpose — as intended. It has led to a perception of needless interference into the affairs of farmers, foresters, miners, and others.
The confusion, the irritation, the divisiveness caused by the corps' attempted regulatory activity under section 404 must cease. That is why I have suggested repeal of section 404 to restore the basic Federal/State regulatory program under sections 402 and 208 of the act. In this way, point sources of discharge of pollutants, including dredge and fill material, would be regulated, as appropriate, by the Federal and State governments.
But more important to many Senators is that repeal would get the Corps of Engineers out of the business of regulating most farming, forestry, construction and mining activities. Without section 404, the intent that these activities be subject to State and local processes under section 208 will be restored.
Repealing section 404 would avoid the redundancy of permit programs and the cumbersome regulations that have resulted. The enactment of section 404 was premised upon regulation by the corps of the discharge of dredge spoil as a part of its authority to protect navigation. The corps has not done this.
I am afraid that the corps will have to find its justification in an area other than purported environmental regulatory effort. While the corps appears to regulate wetlands in the public interest, it continues to allow open water discharge of dredge spoil.
Mr. President, many have argued that section 404 is essential for environmental protection. Some environmentalists have become enamoured with the newly found interest of the Corps of Engineers in environmental protection. I reject the position of the environmentalists on this issue.
To the extent that dredge and fill material is actually discharged from a point source into the navigable waters as defined in the Clean Water Act, it will be subject to regulation by the Environmental Protection Agency.
The proposed amendment from the House provides an excellent example of what happens from legislating exceptions. The House amendment would only compound the problem. Exceptions legislated on exceptions result in a law which is complicated and application of which is uneven.
Red tape, overlap, frustrations are all functions of creating exceptions, especially exceptions which create authority for new agencies, new procedures, new criteria. The public becomes confused. And the Government loses credibility. Creating multi-authority to control the discharge of pollutants into the navigable waters was not good policy in 1972. The proposed amendments by the House make it clear that it is not acceptable in 1976.
Legislating by exception is an all too frequent practice by the Congress. We must adopt comprehensive programs which are coherent and which are as understandable as possible. People should be given the assurance that they can understand both procedural and substantive requirements which are required by Congress. This is best done by working with uniform administration. Creating exceptions, separate definitions, and separate procedures for matters which fall within a single heading such as the control of discharge of pollutants does a disservice to the American people. We confuse, we erode credibility as we give special interests special protection.
I urge, my colleagues to review this statement carefully. The confusion under section 404 as intensified by the House action cannot be corrected by an amendment. There is only one way to inform a public agency that the Congress absolutely rejects confusion in the law brought about by legislating exceptions — that is through repeal of those exceptions.
Mr. President, in order to help the Senate understand the issue, let me summarize its history. It reveals how acts of Congress can become distorted almost beyond recognition at the hands of the executive branch.
LEGISLATIVE HISTORY
The section of the 1972 act which the House proposes to amend was not in the bill (S. 2770) which the Senate passed in 1971. An amendment which would have added a section 404-like provision was defeated in the Senate Public Works Committee by a vote of 9 to 6. During the Senate debate on this bill, S. 2770, Senator STENNIS offered an amendment similar to the amendment defeated in committee which would have added a section 404 to regulate, through the Corps of Engineers, the discharge of dredge spoil. As floor manager of the bill, I responded with an amendment to section 402 regarding EPA's authority to issue permits for the discharge of pollutants so as to provide for review by the Corps of Engineers of the impacts on navigation whenever dredge spoil was to be discharged. My amendment was adopted.
For those who are interested in reviewing the issues discussed at that time, I refer to the debate which has been reproduced in the legislative history documents printed as a committee print by the Committee on Public Works on pages1386 to 1393. The philosophy of the Public Works Committee, and ultimately of the Senate at that time, was that the program authorizing the discharge of pollutants into the navigable waters of the United States would be best administered through a single program under the direction of the Environmental Protection Agency with the authority to delegate that program to States upon the qualification of State programs. Dredge spoil and fill were definitely considered pollutants. I continue to support that position.
In 1971, the House Committee on Public Works added a section 404 which separated the regulation of the discharge of dredge or fill material into the navigable waters from section 402 and placed the jurisdiction for the issuance of such permits with the Army Corps of Engineers. In addition, the House bill would have exempted Federal projects involving dredge or fill material from the 404 permit procedure and would have given EPA only a limited consultative, not authoritative, role in the issuance of permits for the discharge of dredge or fill. The text of this provision appears on page 1063 of the legislative history, volume 1. The provision reported by the House Public Works Committee was adopted by the full House.
As a result of conference, a provision was adopted which, although it provided authority for the Corps of Engineers rather than EPA to issue permits regarding the discharge of dredge or fill material in the navigable waters, gave the Environmental Protection Agency a veto role over the choice of any disposal site in the navigable waters specified by the Corps and did not include the exemption for Federal activities originally provided in the House bill. This provision became law.
This program authorizing the disposal of dredge and fill material at selected sites was an extension of the Rivers and Harbors Act of 1970 which authorized the corps to provide diked disposal areas, so as to, in the words of the Senate report on S. 2770, "reduce as much as possible the need to dispose of dredge spoil in the open waters." Public Law 92-500 struck the limitation on the corps' diked disposaI authority which, prior to 1972, was restricted to the Great Lakes. Thus, the program was made applicable to all the Nation's waters after enactment of the 1972 act.
ADMINISTRATIVE HISTORY
However, the corps has not carried out this provision of section 494. It has not designated sites for the disposal of dredge spoil. It has not reduced or eliminated the open water discharge of dredge spoil. The practice continues unabated. The corps has not carried out the law.
I wrote to the Corps of Engineers, Senator BUCKLEY and I wrote to the Corps of Engineers, the staff of the Subcommittee on Environmental Pollution met with the Corps of Engineers, to urge that they pull in their horns, comply with the law, and cease to extend their jurisdiction beyond that which Congress intended. All of these discussions were to no avail.
Somehow the limited exception to the general permit program under section 402 of the act has become a major exception by the broadening of the charge of the corps under section 404 to all discharges of dredge or fill material, notwithstanding whether at specified sites or not. This has resulted in a confused, complicated program. This duality could have been, in large measure, avoided. Under the section 402 permit program, the Environmental Protection Agency was to issue permits for the discharge of all pollutants, including dredge or fill material, except for the discharge at specified sites of material dredged from the navigable waters.
One of the most important features of the 1972 Water Pollution Control Act was its definition of "navigable waters." This term was intentionally defined broadly to protect the Federal interest in the integrity of the Nation's waters. The expanded definition eliminated the arbitrary political distinctions of water which were not recognized by the natural system we were trying to protect.
The Congress recognized in 1972 that the water system of the United States was a single aquatic system and that biological integrity could not be achieved and maintained without a comprehensive program for regulation of the discharge of pollutants into that system. This definition was in contrast to an earlier narrow Federal interest in interstate waters and to earlier definitions of navigable waters by various Federal agencies, including the U.S. Army Corps of Engineers under authority of other law. The Corps of Engineers' role under section 404 of Public Law 92-500 was a compromise to utilize the permit system that the corps had in place under section 10 of the Rivers and Harbors Act. It was not designed simply to protect the commercial interest of the Federal Government in the navigable waters.
With respect to the corps' role in water pollution programs, the most important definitions were in the context of section 10 of the Rivers and Harbors Act of 1899 and section 13 — better known as the Refuse Act — of the Rivers and Harbors Act of 1899. These two sections,which authorized protection of navigable waters by the Corps of Engineers with respect to navigation, had different descriptions of navigable waters and have resulted in extensive litigation on that question.
As a result of the special section of the 1972 Water Act for the regulation of the discharge of dredge or fill material at specified sites, the Corps of Engineers had to somehow incorporate this new definition into its existing authority under sections 10 and 13 of the 1899 act. In doing so, it found itself perplexed as to the scope of the new provision. This uncertainty resulted in an extended period of rulemaking activity which only reached interim final stage in July of 1975, almost 3 years after enactment of the 1972 act.
This rulemaking activity was surrounded with bitter controversy within the administration and among all interested parties throughout the United States. The rules which have been adopted primarily through the energy of Russell Train, the Administrator of EPA, can be described as reaching middle ground, although some controversy continues. Notwithstanding the fact that these regulations have taken nearly 4 years to put into place, the House of Representatives, without any public hearings on this complicated issue, has now passed a provision which would create a new cloud of uncertainty over the program to protect and enhance the quality of the Nation's waters.
The House-passed provision would compound errors which were first made by legislating the section 404 exception. In fact, the proposed amendment would intensify the complexity of the 1972 act by creating additional exceptions to the fabric of the Federal Water Pollution Control Act. The House bill would withdraw from regulation many important polluting activities. The House provision achieves this result in several respects.
PROPOSED HOUSE AMENDMENT
First, the House provision creates an entirely new definition of navigable waters to govern the scope of the corps regulation of the discharge of dredge or fill material. This new definition would seriously restrict the waters into which the discharge of significant dredge or fill pollutants would be regulated. This is totally without support and is unacceptable.
Second, the House bill would reinstate, although in different language, the exception for Federal activities which the Congress rejected in 1972.
Third, the House, not content to limit the corps' authority, would further limit the role of the Federal Water Pollution Control Act by precluding any regulation under section 402 of the discharge of dredge or fill material in the navigable waters other than those under the new limited definitions of the House bill. The consequences of such restriction are that for the purposes of dredge or fill, the House would restore the old 1965 act limitation on Federal law which was so decisively rejected in 1972.
Fourth, the House bill would add a provision allowing the corps to authorize a State to issue permits under section 404. This provision would be added, notwithstanding the fact that without the special legislative exemption for dredge or fill materials under section 404, the permit. program would be fully authorized for transfer to the States under the established and separate procedures of section 402 of the act. Twenty-seven States to date have been authorized under section 402, a provision that includes, as the House bill does not, sufficient criteria to protect the Federal interest in the integrity of the Nation's water.
A PREFERRED PROPOSAL
Mr. President, in 1972 the Committee on Public Works, the Senate and Congress worked very hard to enact a law to protect and enhance the integrity of the waters of the United States. The 1972 act attempted to establish an appropriate balance between the Federal and State governments. It attempted to create a Federal role as needed and maintain a State and local role where one was appropriate. For example, nonprofit sources such as agricultural activity, forestry practices, road building, and the like are to be regulated under section 208 by State and local governments. We did not want a mammoth Federal presence involved in these activities. But under section 404, insisted on by the House as it relates to the dicharge of dredge or fill material, we got just that.
Section 402, with its delegation provision both achieves the Federal purpose ofprotection of water, while providing for administration by qualified States.
Mr. President, as I stated earlier, I prefer that the Senate respond to the problems that have arisen in the 404 program with an amendment to the Water Pollution Control Act to strike section 404 so that the discharge of the dredge or fill materials will be regulated within the overall fabric of the 1972 act. The discharge of dredge or fill material into the navigable waters of the United States would then be regulated pursuant to section 402 of the act in accordance with its provisions for authorization of State regulation where a State has demonstrated the capability to administer the program. This avoids creating exceptions and the procedural and substantive complexity that exceptions bring. The number of permit issuing agencies would be reduced. There would be no ambiguity as to the relationship of the discharge of dredge or fill material under section 402 and the activities which are otherwise regulated under section 208. It would also be clear that Federal facilities would be treated as any other citizen, in accord with section 313, and not subject to any special exemptions. It would also be clear that the States could implement the program if they qualify under appropriate criteria.
But more important to many Senators is that this approach would get the Corps of Engineers out of the business of regulating most farming, forestry, construction and mining activities. Without section 404, the intent that these activities be subject to State and local processes under section 208 would be restored.
I print at this point in the RECORD support for this position — basically the position of the Senate in 1972 — given by the then Administrator of the Environmental Protection Agency William Ruckelshaus, in a letter to the House of Representatives at the time they were marking up the 1972 amendments to the Water Pollution Control Act. Mr. Ruckelshaus stated as follows :
Section 404, "Permits for Dredged or Fill Materials," would let the Corps issue permits for dredge or fill in navigable waters subject to EPA criteria and review, but no recommendation of EPA need be followed where the Secretary of the Army determines" there is no economically feasible alternative reasonably available." The bill would allow the Secretary to govern Federal dredge and fill projects by regulations rather than permits.
We are strongly opposed to this action. We believe that all permits for discharges into navigable waters or the oceans should either be issued by EPA or subject to EPA review and concurrence with respect to environmental considerations. Moreover, we believe that it is overly complex and would be very difficult to administer.
When this committee amendment is adopted, the Baker-Randolph proposal becomes part of the Senate bill. I will not try to amend it; I will not offer my proposal. We will send Baker-Randolph back to the House. Maybe they will adopt it, maybe we will go to conference. I intend to continue to search for a solution and to continue to develop a position. I appreciate the efforts that have been made so far and hope they will continue.