September 1, 1976
Page 28796
The PRESIDING OFFICER. Are there further amendments to be proposed?
Mr. MUSKIE. I yield to the distinguished Senator from Delaware.
Mr. ROTH. Mr. President, I believe that I am as aware of the concerns underlying the section 404 controversy as any Member of the Senate. On the one hand, my State of Delaware has extensive wetlands bordering the Delaware Bay, which is the Nation's second largest estuary; it is the site for two fine wildlife refugees, Prime Hook and Bombay Hook; and it is the home of some of the earliest wetlands protection legislation in the country.
Delaware is also blessed with some of the finest farmland in the country, but the use of drainage ditches is compelled; our rivers have channels which must be dredged in order to maintain proper channel depths ; and some of the most intensive dredge disposal activity in the country occurs off our shores.
Because the stakes in this controversy are so high for Delaware. I have studied this issue very carefully. After a great deal of study and thought, I have concluded that I cannot support either the proposal offered by Senator TOWER or the proposal offered by Senators BAKER and RANDOLPH. In my view, the proper course of action would be to legislatively mandate a moratorium on section 404 under the same terms as that imposed by the President. I believe that the Congress of the United States is about to embark on major Federal programs without adequate attention to or reflection on their implications.
I am gravely concerned that because we have not thought these things through, we could find ourselves saddled with a massive Federal program which would fail to protect Delaware wetlands while blocking the productive use of Delaware's farmlands. I am gravely concerned that Delaware's farmers — who are already hard pressed to make a living — will find themselves confronted by a tangle of Federal paperwork standing between them and the productive use of their lands. I am gravely concerned that Delaware's wetlands, rivers, and streams could suddenly become the victims of thoughtless destruction. I am not saying these things will happen, but I am saying those are the risks we are running, because we are unwilling to spend the weeks and months required to study this issue carefully. Mr. President, I cannot hazard those risks on behalf of Delaware and her citizens.
The issue is whether we are going to put a massive new Federal program into place affecting nearly every part of the country in some degree or another without looking at the issues carefully and at length. I urgently hope that when this issue is taken to conference, other Senators and Representatives will be persuaded to my views.
I ask the distinguished Senator from Maine his views as to whether or not it might not be the best approach to delay action for another year, which would give further time for study, and then try to come up with legislation that would be an answer to the conflicting needs.
Mr. MUSKIE. I say to the Senator that that proposal is one that I find very attractive. It is a proposal I made in the Committee on Public Works.
I also proposed that we might solve the problem by simply striking section 404 from the law. But it was quite clear that I had very little support in the committee for either position, and the Baker-Randolph amendment was adopted by a close margin in committee. The Senator has observed the close vote in the Senate.
My answer to the Senator is that we now go to conference with the issue open. The Baker-Randolph amendment having been adopted, the Wright amendment is in the House version. So the issue is open.
If, after defending the Senate position, as it is our duty to do, we find ourselves in a stalemate, I assure the Senator that his idea will not lie fallow.
Mr. ROTH. I express my appreciation to the Senator for those remarks. As I said, I think this is a matter of greatest concern, both to the farmers and to the wetlands. For that reason, I think we are far better off to move with care, rather than to rush into a program that could cause serious problems in the future.
Mr. MUSKIE. The reason I resisted these various proposals, all of which have been developed on good faith and with considerable ingenuity, is that they are simply patchwork answers built upon an original mistake, and I do not like that kind of legislation, wholly apart from the substance of the issue involved. I would like to see us start anew and build a policy that fits within the basic structure of the Water Pollution Act. I suspect that that is what the Senator's attitude is.
Mr. ROTH. That is correct.
Mr. DOMENICI. Mr. President, will the Senator yield?
Mr. MUSKIE. I yield.
Mr. DOMENICI. I think the Senator from Maine will agree with me that, as we proceeded through the hearings, it was quite obvious, regardless of what we do in this bill, that there seemed to be a genuine concern that we approach the wetlands problem of this country in a very deliberate manner. I do not believe there is any intention on the part of the committee in any of its activities to just say there is not a problem in the preservation of the wetlands of this country. The evidence we have to this point is that there is a serious problem. It is just that by the interpretation of section 404, we have gotten ourselves into a hodgepodge, and we do not know quite where we are. I do not think we intend in any way to jeopardize the wetlands so far as the committee's activities are concerned.
Mr. ROTH. I appreciate those remarks. I want to make clear that I was not personally suggesting that we strike section 404 entirely. However, as Senator DOMENICI has said, what concerns me is that I do not think we have adequately determined how to strike the right balance, and I hope we move with care.
ADDITIONAL STATEMENTS
Mr. TALMADGE. Mr. President, I support S. 2710 and I commend the efforts of the chairman and members of the Committee on Public Works to restore the proper direction of the 1972 Federal Water Pollution Control Act amendments.
Perhaps the one section of the 1972 act which needs revision to assure the proper attention to the Nation's water quality objectives is section 404. That section, as the result of a 1975 court decision involving the Army Corps of Engineers, is being interpreted by the courts and the administration to require a tremendous enlargement of the Corps' permit granting authority concerning the Nation's waterways. Under the court's mandate the Corps has expanded its regulatory activities throughout the Nation to embrace many farm and forest lands which are adjacent to navigable waters.
This new jurisdiction of the Corps would embrace over 3.5 million miles of rivers and tributary streams as opposed to the 50,000 miles now within the Corps' jurisdiction. Corps jurisdiction over lake shores would jump from 50,000 miles to over 4.7 million miles. There is no accurate estimate of the acreage of wetlands adjacent to these streams and lakes that would be embraced within this new responsibility since there is considerable uncertainty over the definition of wetlands. However, the Fish and Wildlife Service in the Department of the Interior estimates that there are 5.9 million acres of wetlands in the State of Georgia. The Forest Service of the Department of Agriculture estimates that 4.5 million acres of Georgia's highly productive forest lands are within this wetlands classification.
The Corps' new definition of wetlands will cause confusion and uncertainty to farm and forest managers as to when permits are required. This situation could result in administrative delays and costly litigation.
This confusion will be further compounded because of overlap with the coastal zone management planning efforts of the States. In many instances the Corps' 404 program duplicates the coverage under the Coastal Zone Management Act. Under the 404 regulations, Georgia's coastal zone management agency must review each 404 permit.
These problems were recognized by the members of the Public Works Committee in its consideration of proposed amendments to section 404.
It is my opinion that the amendment offered by Senator TOWER (amendment No. 2218) is superior to the language in section 8 of the bill reported by the committee. The amendment offered by the Senator from Texas is similar to the provision previously adopted by the other body and provides for the Corps of Engineers dredge or fill permit program under section 404 of Public Law 92-500 to be carried out in a commonsense, workable manner. Corps efforts should be focused on keeping the Nation's navigable waterways open for waterborne commerce; a job which the Corps has performed well throughout its history.
The proposed revision of section 404 adopted by the committee, following rejection of the language of amendment No. 2218 by the narrow margin of 7 to 6,would greatly expand the responsibility of the Environmental Protection Agency. Rather than reducing the Federal Government's authority, it is merely being shifted from one Federal agency to another. More confusion will result from new EPA regulations, with authority divided between two Federal agencies both of which will overlap with existing State laws and planning efforts.
I recognize and applaud the committee's intention to exempt most of the normal farming, forestry, and ranching activities from the scope of the new EPA authority. However, that exemption does not go far enough. EPA will have an expanded role in the construction of drainage ditches and other water control structures on lands already in production of food, fiber, and forest products. This is not to be confused with construction of ditches for land draining to accomplish a change in natural conditions.
While subparagraph (3) (A) (v) exempts farm and forest road building from the permit program, it unnecessarily expands EPA's regulatory authority to establish national construction guidelines for these roads. These national guidelines would most certainly be unresponsive to local needs and compound the problems of cooperation with State agencies and Federal land management agencies already charged with similar responsibilities.
I believe that EPA's water quality authority should not include regulating the day-to-day activities necessary for food, fiber, and forest products production. Education and technical assistance programs at the State and local level, such as those of the conservation districts, have shown they are effective.
The Corps' expanded program resulted from litigation involving uncertainty in the language of the 1972 act. I can see nothing but increased litigation resulting from the vague language in the committee bill. This is especially so in the bill's use of the word "appropriate" in the so-called "recapture clause" which authorizes revocation or modification of the proposed general permits where the authorized activity "is more appropriate for consideration in individual permits." How is any land manager to know when he can operate under Federal guidelines published for his activity or when he must get a special permit? It places an unreasonable and extremely expensive burden on these landowners to resolve these questions in the courts.
Mr. President, the Congress is aware of the need to correct the terms of section 404, but we are not facing up to our responsibility in the committee language. I will support adoption of amendment No. 2218.
Mr. CULVER. Mr. President, I would like to discuss a particular matter involving section 109(b) of the Federal Water Pollution Control Act with the distinguished chairman of the Environmental Pollution Subcommittee.
Before the Public Works Committee began its consideration of amendments to S. 2710, I had two concerns about section 109(b) of Public Law 92-500 which are of great interest to the State of Iowa. As you know, this section authorizes grants to institutes of higher education for the establishment of wastewater treatment training facilities, and Kirkwood Community College in Cedar Rapids, Iowa, has the first approved center in the Nation under this provision.
The committee addressed the first matter by amending section 109(b) to increase the authorization for these grants from $250,000 to $500,000 for each center, which will help to make them more effective in training needed personnel. I greatly appreciate the interest of the chairman of the full committee and the chairman of the Environmental Pollution Subcommittee in resolving this problem. The second concern did not require specific legislative language, and I would like to raise it at this time to clarify congressional intent.
I do not think the committee ever intended that grant applications under section 109(b) for training plants, be put through the same rigorous and time-consuming process as grants for municipal treatment facilities, especially with respect to the State priority listings as required by section 204. It is my understanding that funds for these training centers would be over and above the regular State allocations for construction grants. Since they were never intended for "on line" use of the treatment and discharge of municipal waste, these facilities should not be subjected to the conditions of section 204, but rather be a part of a State plan which includes operation and maintenance training.
As a result of EPA's interpretation of this section, our experience in Iowa was a long and drawn out process which was unnecessary for the objective of section 109(b) to be achieved: preparing qualified personnel for operating sewage treatment plants. I simply wanted to be sure that the legislative history reflects that my understanding is consistent with the intent of the Congress.
Mr. MUSKIE It does. I appreciate the Senator pointing out this problem to the Senate and I hope this exchange will be helpful.
Mr. CULVER. I thank the Senator.
Mr. President, I want to commend the distinguished chairman of the Public Works Committee, Mr. RANDOLPH, and the Chairman of the Environmental Pollution Subcommittee, Mr. MUSKIE, for deciding to address only the most pressing elements of the Federal water pollution control program this year. This will enable the Senate to devote complete attention early next year to the full range of water pollution issues after thorough hearings on Public Law 92-500 and the findings of the National Commission on Water Quality.
Of particular interest to Iowa, the amendments reported by the committee to S. 2710 include an increase in the authorization section 109(B) from $250,000 to $500,000. Section 109(B) was included in Public Law 92-500 to provide financial assistance to the States for establishing a State training center for waste treatment plant operation and maintenance personnel. These training facilities are to assure communities that their operators will be effectively trained to operate and maintain sewage treatment plants efficiently. The adequate training of such personnel helps to protect the sizable public investment in sewage treatment facilities made by all levels of government.
Kirkwood Community College in Cedar Rapids, Iowa, and the State of Iowa have constructed the first training center approved in the Nation under this program. The center opened in April 1976, and the experience at Kirkwood Community College has demonstrated that the $250,000 authorized under this section in 1972 for each facility is insufficient to construct a desirable facility. For instance, Kirkwood Community College had to subsidize the construction of its present center in the amount of $100,000, and bids on the facility exceeded the $250,000 authorization by at least 50 percent. It is my understanding that several other States, including Colorado, New Mexico, Oklahoma, and Missouri, have experienced similar problems. The additional funds will be used to install digesters, sludge drying beds, and other analytical equipment to complete the facility at Kirkwood.
During the consideration of this section of Public Law 92-500 in 1972, $1 million was initially included for each training facility, but that amount was ultimately reduced to $250,000. Taking into account the inflationary effects of the 1972-75 period, it would seem that a higher authorization of $500,000 per training plant would be more reasonable and effective. The public investment in municipal wastewater treatment plants is increasing as the Environmental Protection Agency accelerates the rate at which applications for construction grants are being processed. Operators will need to know the latest developments in the biological and chemical aspects of treatment and each successive level of treatment demands complex equipment that is very expensive. This change will let Iowa and other States have personnel trained in the latest treatment processes.
I believe the Public Works Committee has properly corrected existing deficiencies in section 109(B) relating to the funding of these vital training centers, and I am hopeful that the full Senate will act favorably on the changes proposed by the committee to this and other programs of the Federal Water Pollution Control Act.
THE "DREDGE AND FILL" PERMIT PROGRAM ON NAVIGABLE WATERS
Mr. DOLE. Mr. President, I want to take this opportunity to once again express the continuing concern of farmers, cattlemen, highway and housing contractors, and others regarding the "dredge and fill" permit program administered by the Army Corps of Engineers. While it is particularly reassuring that the Senate Public Works Committee has finally confronted this nagging issue, it is clear that the so-called Baker-Randolph proposal does not completely resolve the troublesome aspects of section 404 and of the corps regulations. The Tower-Wright amendment, on balance, seems to better address the full range of problems, while preserving essential environmental protections. It has already passed the House of Representatives. I support it and urge its acceptance by this body.
Section 404 of the 1972 Federal Water Pollution Control Act gave the Army Corps of Engineers primary authority to regulate dredge and fill operations in "navigable waters" of the United States. Historically, the Corps' duties have related to preventing navigational obstructions and facilitating interstate commerce. The Corps' expanded powers under section 404, however, resulted from a broader concern for environmental protection. The matter of "protection," per se, is not at issue. Instead, it is the mechanism, and the extent of jurisdiction reflected in the administration of section 404 that is justifiably challenged today. And until congressional intent is clarified, there will be challenges and counter challenges to the corps' regulatory authority.
UNANSWERED QUESTIONS
Congressional intent as reflected in the language of section 404 was admittedly vague and unspecific with respect to the issues of Federal wetlands protection, tributary protection and of defining "dredging" and "filling" activities. Confusion and uncertainty about the scope of section 404 in the wake of the Corps' regulations of last July, result from the haziness of guidelines for distinguishing between legal and illegal conduct. Just as the farmer needs clear cut guidelines addressed to his specific daily activities, so does the Corps of Engineers require an easily definable scope of authority to facilitate permit processing.
For these reasons, Congress needs to take positive steps now to clarify the proper scope of the section 404 permit program and to resolve jurisdictional questions. In my opinion, House approval of the Wright amendment to H.R. 9560 — now S. 2710 — last month was an appropriate step in the right direction. It is now up to the Senate to act, and to act expeditiously.
In June of this year, Senator TOWER and myself initiated a letter to the President — with 30 Senate signatures — asking that the forthcoming "phase II" of the Corps regulations be delayed until the Senate could act on this issue. The President responded with an appropriate 60-day delay to give us time to act decisively. That action gave us the opportunity to discuss the issue on the Senate floor today.
There are at least two very basic issues that must be resolved at this time by Congress. What specific types of normal and routine activities — as practiced by farming, forestry, mining, and construction industries — are to be considered "dredging" or "filling" for the purposes of the permit program? To what extent is Federal regulation of small waters desirable or necessary to achieve the purposes of the 1972 Water Pollution Control Act? These two questions strike at the very heart of the controversy that has engulfed the section 404 provision since its enactment. The Tower amendment resolves both of these questions in what I believe is a fair and equitable manner for dealing with both environmental and agricultural concerns.
REGULATING ACTIVITIES
Following the district court decision in NRDC against Calloway (1975), opposition to the section 404 permit program arouse from agricultural and forestry interests who feared an expanded program would interfere with normal daily activities near inland waters and on wetland areas, such as plowing, digging irrigation ditches, et cetera. There is certainly no obvious language in the 1972 act to arouse such concern, but the imprecise definitions of "dredging" and "filling," and the court's order covering lakes, ponds, tributaries, headwaters, and adjacent wetlands, made such regulation of normal farming acts a very real possibility.
The anticipated delay, expense, and general burden of imposing such permit requirements on farming, forestry, and construction industries is mind boggling. From a logistical standpoint, the Corps of Engineers is certainly not presently capable — in terms of manpower or money — of administering a comprehensive oversight over routine agricultural discharges or forestry functions. Furthermore, it is doubtful that the Corps possesses the technical and scientific competence necessary for such a regulatory permit program.
In view of these considerations, I believe the Corps of Engineers made a wise gesture when it included exemption provisions for "normal farming, silviculture, and ranching activities" in its July 1975 regulations. But those provisions did not eliminate concern, because they are inherently weak. In the first place, agency regulations do not carry the definitive character of public law; the Corps exemptions do not foreclose the possibility of later court challenges based on the 1972 law. In the second place, the exemption provisions do not completely eliminate all routine agricultural activities. A sample list of exclusions contained in the regulations do not refer to such practices as dredging for irrigation supply or filling in farm roads, fords, and bridges; and language concerning erosion prevention devices such as "ripraps" and "groins" is ambiguous. These common agricultural practices might or might not be judged "normal" by the Corps at the time of permit application.
Similarly, I understand that the beef cattle industry is concerned about potential permit requirements for terracing, digging irrigation canals and livestock ponds, and for cleaning out lagoons. "Normal" forestry activities including construction of culverts, drainage ditches, and temporary roadways could be subject to 404 regulation. The Kansas Department of Transportation advises me that routine cleaning of culverts, repair and replacement of bridge abutments and piers, and even debris clearance could possibly require a permit under current corps regulations.
I do not believe that Congress intended for such activities to be regulated by the Federal Government. For these reasons, permit exemptions for "normal" activities of private business need the full force of congressional clarification and public law.
IS FEDERAL CONTROL NECESSARY?
A second issue that arose from the 1972 law is the question of whether or not expanded oversight jurisdiction should be vested in a Federal agency such as the Corps of Engineers. I submit that in most cases, State government can more readily adapt, and more specifically direct, wetlands regulation to meet the particular geographic needs of the State. Furthermore, because water and wetlands use has been traditionally reserved to State government, the entire structure of water rights and land use administration would be seriously jeopardized, if not destroyed, throughout the Nation by expanded Federal oversight. State control of wetlands located in tidal areas is firmly rooted both in common law and statutory bases. Even though the expanded 404 corps regulations allow for an "advisory" role for the States, all decision making powers for issuance of a permit are retained by the corps.
Clearly, this involves a. duplication of State and Federal resources where the State has already devised an adequate water and wetlands regulation system.
Previous environmental legislation, such as the Coastal Zone Management Protection Act and Solid Waste Control Act, has given the States primary responsibility for carrying out the purposes of the protective legislation. Indeed, such Federal environment regulation should be in cooperation with, and not in substitution for, State regulation. There is no reason why State permit programs which meet uniform Federal standards cannot effectively achieve the purposes of section 404. Delegation of the authority to grant permits to States which have federally sanctioned permit programs would be a big "plus" in terms of practical and expeditious implementation of this program. The Tower amendment provides for such delegation in a responsible manner.
A very fundamental question lingers about the proper definition of "navigable waters." The courts have interpreted the term to encompass most waters in the United States and this has spread the scope of this Federal program far beyond traditional boundaries. We all understand the importance of regulating genuine polluting activities on tributaries that feed into larger waters. But Federal encroachment under the provisions of section 404 was neither intended nor desired by this Congress. The Tower amendment would statutorily define "navigable waters" in its more restricted, traditional sense, thus limiting Corps authority to large waters. Yet, the environmental integrity of smaller, non-navigable waters could be preserved through State oversight, with Federal cooperation if requested.
If we legislate in a thoughtful and practical frame of mind, I have no doubt that environmental protection efforts can proceed without undue encumbrance, while private business can proceed without undue regulation. I believe the Tower amendment embodies these principles and would resolve the broad range of concerns, without endangering the environmental goals to which this Congress is committed.
Mr. President, I support the Tower-Wright proposal and urge its speedy enactment.
Mr. MUSKIE. Mr. President, at this point I would like to comment briefly on the budgetary impact of the fiscal year1977 funding levels for the Environmental Protection Agency's water pollution control program that are authorized in the pending amendment.
For fiscal year 1977 the amendment authorizes $5 billion in grants for constructing waste water treatment facilities. The amendment also authorizes $760 million to administer the Federal water pollution control program. The regular HUD-independent agencies appropriation bill which has already been enacted provides budget authority of $160 million and outlays of $92 million for the administration of the Federal water pollution control program. The bill did not include any new funds for the construction grant program pending completion of action on this authorization bill.
Mr. President, since the Budget Committee has just completed its markup of the second budget resolution, I would like to place this authorization bill in the context of the decisions reached in those deliberations. The committee's full report on the second budget resolution will be issued shortly.
Let me begin by saying that the Budget Committee will be recommending to the Senate total budget authority of $447.5 billion and total outlays of $412.8 billion for fiscal year 1977. These amounts are, respectively, $6.7 billion and $0.5 billion below the first budget resolution targets.
Within these broad totals, we are recommending shifts among several functional budget categories from the first budget resolution targets to take account of congressional action to date and likely future action.
Built into our assumptions for the second budget resolution are $5.020 billion in budget authority and $70 million in outlays for programs authorized in this bill that have not yet been funded. The recommended totals also assume the $160 million in budget authority and $92 million in outlays for these programs that have already been appropriated. We believe these amounts are sufficient to cover likely further appropriations action for these programs.
Thus, Mr. President, assuming the Senate adopts the Budget Committee's second budget resolution recommended levels — levels which are below those adopted last spring — this bill can be accommodated within the congressional budget.
The PRESIDING OFFICER. Are there further amendments? If not, the question is on agreeing to the motion to concur in the amendment of the House with an amendment.
The motion was agreed to.
Mr. MUSKIE. Mr. President, I move to reconsider the vote by which the motion to concur with the amendment was agreed to.
Mr. ABOUREZK. I move to lay that motion on the table.
The motion to lay on the table was agreed to.