September 1, 1976
Page 28790
Mr. MUSKIE. Mr. President, will the Chair repeat that?
The PRESIDING OFFICER. Four minutes remaining to the opponents of the amendment controlled by the Senator from Maine.
Mr. MUSKIE. May I inquire who is using the time against the Tower amendment? I do not recall any debate having been undertaken on behalf of the opponents.
The PRESIDING OFFICER. The Senator from West Virginia used the majority of the time, the 6 minutes.
Mr. MUSKIE. How much time do we have?
The PRESIDING OFFICER. Ten minutes to a side.
Mr. RANDOLPH. I respectfully ask the Chair if we can go off the time of the amendment. I will take my time on the bill in general debate.
Mr. MUSKIE. I will yield such time as the Senator may wish. How much time do we have?
The PRESIDING OFFICER. Forty minutes are left to the Senator from Maine on the bill. There is a 10-minute limitation on amendments.
Mr. MUSKIE. Whatever time the Senator from West Virginia wishes.
Mr. RANDOLPH. Mr. President, I have said on other occasions that the issues relating to section 404 of the Water Pollution Control Act Amendments of 1972 are the most controversial we have had to face in developing this legislation. In the amendment before the Senate is language that the Committee on Public Works believes is responsive to the problems raised by judicial and administrative interpretations of section 404. This language, in section 8 of the pending amendment, is designed to eliminate much of the confusion and uncertainty that exists with respect to section 404. It permits activities that cause little or no harm to the environment, but it also provides for controls over functions that are damaging to sensitive areas.
The Senators from Texas are asking the Senate to substitute their proposal for dealing with the problems of section 404. I remind the Senate that language almost identical to that offered by Senator TOWER was rejected by the committee during its consideration of this amendment. We felt that this approach was inadequate and that the proposal offered by Senator BAKER. and myself more fully addressed the problems associated with section 404.
Mr. President, we are often reminded that the proposal of the Senators from Texas is identical to that contained in the House-passed version of this legislation and that it was adopted by a vote of 234 to 121. While I have the greatest respect for our colleagues in the House of Representatives, I do not believe that we should follow their lead unquestioningly. The Senate must address the problems before us and we must develop solutions that we feel are most responsive. The conference procedure exists to provide the mechanism for melding the thinkingof the two bodies.
In considering this amendment, it is important to remember that the House language relating to section 404 was adopted on the floor without consideration of the appropriate committee and with little debate.
I share the concerns of the Senators from Texas about the impact of regulations proposed by the Army Corps of Engineers to implement the provisions of section 404 as interpreted by the courts. They have expressed reservations about the impact on agriculture. This was a matter of prime consideration by the Committee on Public Works.
The committee amendment provides a specific exemption for normal agricultural activities. A discussion of what is meant by "normal" activities is contained in a discussion of the committee amendment which appears in the CONGRESSIONAL RECORD today. In no way is this language intended to restrict the ability of farmers to carry out activities concerned with the normal growing and harvesting of food and fiber.
Similar exemptions are provided for normal silviculture and ranching practices so that they are not hampered by regulation when none is needed. The committee carefully examined many activities to determine which ones should not be subjected to the full impact of the permit process which is authorized by sections 402 and 404 of the Water Pollution Control Act.
Mr. President, I think we need to again underscore the fact that the language of the amendment which I referred to incorporates an exemption for the construction of farm or stock ponds or irrigation ditches or, as the able Senator from Texas (Mr. TOWER) has said, sloughs. We were even going to exempt those in the lands that he represents in Texas.
I must continue to call attention to the discrepancy in the words spoken by the two Senators regarding the language of the bill. We address the matter of construction and we address the matter of maintenance for such categories as farm and stock ponds regardless of their size. Both construction and maintenance are exempted for these categories.
Mr. President, as we talk about agriculture and farming and ranch country we should note that 80 percent of the permits now required under the Corps of Engineers' program would not be needed under the Baker-Randolph provision incorporated in the bill.
As I said to the able Senator from South Dakota (Mr. McGOVERN), all members of our committee share the concern of the Senators from Texas. This is not a pleasantry. I value highly the service of the Senator from Texas (Mr. BENTSEN) as a member of the Committee on Public Works. I am only continuing to focus on this subject as it concerns agriculture because I share your concern, and the other members share your concern for the impact of regulations proposed by the Army Corpsof Engineers to implement the provisions of section 404 as interpreted by the courts.
Sometimes, however, as we think we are having more and more regulations, we should read these words:
If all the seas were ink and all the reeds were pens and all the skies were parchment,and if all men could write, they could not match the red tape of this government.
I am sure that most persons would think that this statement applies to the present day. But that statement was made about the government of Rome about 2,000 years ago.
So the matter of regulation, of implementation of law, is a matter that carries with it the necessity for the following guidelines and meeting goals.
We have had an expression of reservations about the impact on agriculture, and that is proper to be injected into this debate. It is important that we have it for this matter was, and I emphasize, a matter of prime consideration to the members of the Committee on Public Works. The committee members, in adopting the amendment offered by Senator BAKER and myself, were not unmindful of the arguments made within the committee by the diligent Senator from Texas (Mr. BENTSEN). The committee amendment, as well as the Bentsen-Wright amendment which is strongly supported by Senator TOWER, both provide a specific exemption for normal agricultural activities.
What is a normal activity is contained in the discussion of the committee amendment as set forth in the debate. In no way is the language in the amendment intended to restrict the ability of farmers or ranchers to carry out activities concerned with the normal growing and harvesting of food and fiber.
The PRESIDING OFFICER. All the Senator's time has expired.
Mr. RANDOLPH. May I have another5 minutes?
Mr. MUSKIE. Yes, I yield another 5 minutes.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. RANDOLPH. Now, similar exemptions are provided for what we call normal silviculture and ranching practices so they are not hampered by regulation.
The committee members — and I am very frank to say the vote was close — have carefully examined many activities to determine which ones should not be subjected to the full impact of the permit process which is authorized by section 402 as well as 404 of the Water Pollution Control Act.
As contained in the committee amendment, section 8 gives the Corps of Engineers authority to regulate the disposalof dredge spoil and fill material in navigable waters as they have been traditionally defined. Such control in other waters is retained by the Environmental Protection Agency under its existing authority in section 402. Section 402 is the basic control program of the Agency.
The committee also recognized the need to give some authority for permit programs to the States. This is another concern of the Senator from Texas. I, too, believe that the States in many instances can implement these regulatory programs, relieving Federal agencies of the burden and hopefully eliminating many of the administrative and bureaucratic delays that contribute to today's frustration. Provision is made in the committee amendment for the delegation of this permit program to the States when they have the ability to successfully carry out such a program.
Mr. President, the Committee on Public Works developed its own approach to the section 404 problem because we felt there were deficiencies in the language adopted by the House. The most glaring of these is the failure to provide any regulation of the disposal of dredge and fill materials in water other than those that are navigable in fact and under control of the Corps of Engineers.
This area is left to the discretion of the States and would be unprotected if the States chose not to exercise their authority. Such a situation could leave many important wetland and other areas open to unrestricted contamination. The language proposed to the Senate corrects this deficiency. The States, as I have stated, can assume the responsibility for control in these upstream areas. Until they do, however, the Federal Government — through the Environmental Protection Agency — can regulate disposal in these areas.
Mr. President, the aims of the Senator from Texas and the members of the Committee on Public Works are identical. We both seek to establish a regulatory program over disposal of dredge and fill material. We both seek to reach this objective in a manner that does not hamper the conduct of certain activities. The only difference is one of approach and I believe the committee language to be more complete and workable.
Mr. President, in the interests of a balanced response to an admittedly difficult problem, I urge the Senate to reject the amendment of the Senator from Texas.
Mr. BENTSEN. Mr. President, I ask for the yeas and nays on the amendment.
The PRESIDING OFFICER. Is there a sufficient second?
There is not a sufficient second.
Mr. MUSKIE. Mr. President, I yield myself 3 minutes on the bill for the purpose of commenting briefly on this amendment, if I may.
The Senator from North Carolina has already indicated that in committee I was opposed to the Bentsen amendment which is now before us as the Tower amendment as modified.
I was opposed to the Baker-Randolph amendment because I prefer to completely strike section 404. However, I preferred the Baker-Randolph proposal to the Tower amendment.
Section 404 was designed to do two things. It was designed to control the dumping of dredged spoil into navigable waters. Second, it was designed to give EPA veto power over dredged spoil disposal sites selected by the Army.
Neither of those purposes, which were the only explicit purposes of section 404 in the 1972 law, has been implemented, nor are they covered by the regulations issued by the Army Engineers.
So I would have preferred striking section 404, thus leaving the disposition of dredged soil, which is a point source of pollution, under the general provisions of the 1972 law and leaving the control of nonpoint source pollution subject to section 208 of this act.
That was my preference.
Mr. TOWER. Will the Senator yield for the yeas and nays?
Mr. MUSKIE. Yes.
Mr. TOWER. I ask for the yeas and nays on the amendment.
The PRESIDING OFFICER. Is there a sufficient second? There is a sufficient second.
The yeas and nays were ordered.
Mr. MUSKIE. Mr. President, I yield myself another 2 minutes.
I appreciate the statement of the Senator from North Carolina that if the Tower amendment is defeated, he would support mine.
Unfortunately, I did not have any support in committee and I doubt I would have any support in the Senate.
May I say to my colleagues from Texas, if the Tower amendment is adopted, I would be very reluctant to support any provisions dealing with section 404 except on striking section 404.
The adoption of the Tower amendment on the floor would effectively remove the issue from conference except for the slight change dealing with toxic substances that Senator BENTSEN has mentioned.
May I point out with respect to that, Senator BENTSEN's amendment, would rely on section 307 of the Water Pollution Act as a way to deal with toxic substances.
But, Mr. President, section 307 of the act has never been implemented. There are no regulations dealing with it. Use of section 307 is irrelevant.
So using section 307 for the answer to the toxic substances problem that may be created by the Tower amendment is no answer at all.
The more tinkering is done with section 404, Mr. President, the more I am convinced that the answer is to repeal it. It may be that if I continue to make this point, I may gradually begin to accumulate some support.
But one problem I have with the Bentsen amendment and the Wright amendment which preceded it in the House—
The PRESIDING OFFICER. The Senator's 3 minutes have expired.
Mr. MUSKIE. Two more minutes.
It seeks to deal with this problem which Senator BAKER, Senator RANDOLPH, and Senator TOWER sought to deal with primarily, and that is, the overregulation by the Army Engineers of activities that they were never intended to be given any authority over by section 404.
The third objection I have to the Wright amendment is that it undertakes to jeopardize about three-quarters of all U.S. wetlands by removing them from the jurisdiction of the Clean Water Act.
In other words, it undertakes to redefine navigable waters, thus tinkering with the hydrologic system — tinkering with the hydrologic system and removing about three-quarters of it from any control whatsoever.
What we are concerned about is overregulation of activities. I do not think we ought to express that concern, Mr. President, by pretending that the hydrologic system can be arbitrarily divided in two, leaving three-quarters of it beyond protection of the Clean Water Act in order to do this limited job that is of concern to the Senators from Texas, and, I gather, most Senators on the floor in the Senate.
It is for that reason I object to the approach of the Tower amendment, the Wright amendment.
May I point out, too, Mr. President, that the Wright amendment was written on the House side about an hour before the House acted on it. There were no hearings on it. It was offered as a substitute for a provision that resulted from a House Public Works Committee markup.
The only recent hearings that have been conducted are 2 days conducted by the Senate Public Works Committee, and it was on the basis of those hearings that the Baker-Randolph amendment was produced. There is a basis in the hearing record for this answer.
So I support this, not because I prefer it, but because I prefer it to the Tower amendment, and I made that very clear to the Senator from West Virginia, to Senator BAKER, and all others.
Mr. JACKSON. The State of Washington has an effective shorelines and wetlands management program.
Would you expect the State of Washington to qualify to administer the program?
Mr. MUSKIE. Yes. My staff has had conversations with officials of the State of Washington, and I am advised that Washington's program could quickly be approved.
Mr. JACKSON. Mr. President, could the chairman also clarify the question of whether forest and farm road construction and road drainage facilities are considered normal elements in agriculture and forestry and are therefore excluded under the Baker-Randolph amendment from the permit requirements? Are these "normal" farming and forestry activities resulting from dredging and filling under sections 402 and 404 as amended by the Baker-Randolph provision?
Mr. MUSKIE. The purpose of the committee in the amendment is to make this exemption specific. Forest and farm road construction, which meet basic environmental criteria are definitely exempted from permit requirements by the Randolph-Baker amendment.
Mr. JACKSON. I wonder if the Chairman could clarify section 404(3) (A) (ii) which exempts maintenance and emergency reconstruction of certain structures on lands covered by the act. Is it the intention of the committee to permit the reconstruction or maintenance of structures necessitated by wear? Would the maintenance of a structure so that its approximate function and capacity is preserved or restored be exempted from the permit requirement under the Baker-Randolph amendment?
Mr. MUSKIE. Yes.
Mr. JACKSON. Would the Senator explain what is intended by section 402 (1) (3) (A) (v) which gives the EPA authority to issue "guidelines" for the construction of farm and forest roads? Specifically, is it intended that these "guidelines" would rely on and reflect existing state forest practices acts which regulate forest road location and design?
Mr. MUSKIE. Yes. It is also an intention that the Forest Service road construction guidelines and the 404(b) (1) guidelines be used.
Mr. JACKSON. Do you envision any significant inconsistency between these guidelines and the existing state laws in this area?
Mr. MUSKIE. No.
Mr. JACKSON. I am somewhat troubled by the apparent ambiguity of section 402(1) (4) (B) of the Baker-Randolph amendment pertaining to the issuance of "general permits." This language allows general permits to be revoked where the authorized activity "may have an effect which is more appropriate for consideration in individual permits." The term "appropriate" is vague and I wonder if it could be clarified in conference as to what circumstances and by what criterion could a genera! permit be revoked?
Mr. MUSKIE. That is a legitimate question and we will try to deal with it in conference.
Mr. JACKSON. Could a general permit be revoked for an activity which has already begun or does it only affect new activities?
Mr. MUSKIE. Only new activities.
Mr. JACKSON. Mr. Chairman, does section 404(d) (3) of the Baker-Randolph amendment refer to only those wetlands, marshes and other covered lands which are contiguous or adjacent to lands covered in items (1) and (2) of 404(d) ?
Mr. MUSKIE. Yes.
Mr. ROTH. I would like to describe a situation which exists in Delaware and ask the Senator whether a permit would be required for the activity in question.
The western part of Delaware has a great deal of low lying farmland. There are drainage ditches which run off major rivers and their tributaries. Most of these ditches are silted and overgrown, with little or no capacity to carry runoff. The land around these ditches is farmland, already in agriculture. In some summers the land can be successfully planted and harvested. In others it cannot.
The ditches are old WPA ditches, built about 40 years ago. There are projects currently underway to clear these ditches out, rehabilitating them. Usually, a bulldozer clears the land on either side of the ditch, then a drag line is run through it. The actual work is based on designs drawn by hydrological engineers.
Mr. BAKER. The situation the Senator describes is maintenance of existing agricultural drainage and is specifically exempted as a nonpoint source activity by section 3(A) (iii) of the Baker-Randolph amendment. It, thus, would not require a permit.
Mr. ROTH. Many of the farmers are constructing lateral ditches in their same fields, which run into the major ones. Would these laterals require a permit?
Mr. BAKER. If the drainage is being constructed in fields already in agricultural use for crops such as soybeans or corn the construction would not be covered under the program as amended by our provision. No permit would be required.
Mr. BARTLETT. Mr. President, I am pleased to be a cosponsor of Senator TOWER’s amendment to specify the intention of Congress under section 404 of the Water Pollution Control Act.
The House has acted on this matter, and it is now the Senate's responsibility to expedite this clarification.
It is imperative that Congress clearly express its intent so that the Corps of Engineers and other Federal agencies will have clear and specific guidelines within which to operate. Also it is necessary that Congress define the parameters of the Water Pollution Control Act for Federal courts, thereby precluding any opportunity for the court to misinterpret the intention of Congress.
My concern is the implication of this section if the courts’ interpretation is allowed to stand. The decision provides that the Corps should regulate all bodies of water, even if there is no evidence that the particular body would ever be navigable.
Not only is this a staggering expansion of Federal authority, not to mention the staffing that would be required, but it is another major extension of Federal interference into private lives, private business, and local control.
The Corps has published its "interim final" regulations requiring a "general permit." This seems to lead to the acceptance of the premise that all agricultural activities are "point sources" of pollution. Under Public Law 92-500, the Water Pollution Control Act, Congress clearly stated that only certain activities would be considered "point sources" requiring treatment. The cost of this permit is $100, but this expense is misleading because it does not reflect the cost to the farmer in time, effort, and delay to secure the permit.
An analysis by several farm organizations shows that the following steps would be necessary to meet the requirements being established under section 404:
1. Permit Application.—The application will include a complete description of proposed activities; location; purpose; use; schedules; names and addresses of adjoining property owners; all other Federal, State and local agency approvals required; the type, source, composition, quality and transportation method of materials involved; and other information requested by the District Engineer.
2. Public Notice, Comments and Hearing.— Notice must be given by the District Engineer of the application allowing opportunities for and consideration of public comments to include public hearings.
3. Section 401 Certification — The applicant must obtain certification from the State when an activity would discharge into a navigable water that the discharge will comply with the acceptable effluent limitations and standards for that particular watershed.
4. Coastal Zone Management Certification.— An applicant in a coastal zone area must obtain a certification from his respective state where the activity would affect land or water in the coastal zone.
5. Environmental Impact Statement.— The District Engineer must determine whether an EIS is necessary for the particular permit application, and if necessary, must complete prior to the hearing on the application.
6. Corps Decision Making.— The Corps must apply a complex and lengthy series of general and specific policies including factors and criteria mentioned in their own regulations, those of the Environmental Protection Agency and policies under numerous other statutes. The Corps must also engage in substantial interagency consultation.
7. EPA Review.— The EPA must consult with the Corps of Engineers and has final veto power if it determines the discharge will have an unacceptable adverse effect.
These requirements are in addition to applicable State and local requirements, which include compliance with State environmental policy acts, State forest acts, and State and local land use laws. Also, there are other Federal requirements from specific agencies such as the Department of Agriculture which already must be complied with. It has been estimated by certain agricultural organizations that section 404 permit requirements would take between 6 and 24 months for completion, depending on the specific project undertaken by the farmer.
This type of delay can be ill afforded by the agricultural community or any other type of business. A decision is made on the basis of a number of tangible and intangible considerations but particularly depends on immediate need, anticipated need, availability of capital, and present costs. Lengthy delays can do nothing but detrimentally affect the business planning that has become increasingly imperative in complex agribusiness.
The U.S. Department of Agriculture has estimated that 60,000 additional permits per year would be required if the normal conservation practices now being carried on by USDA and farmers are continued. Each of these conservation practices would be delayed, thus perpetuating the environmental problem that the "practice" is seeking to solve.
If the court decision to expand the jurisdiction of the Corps to all bodies of water, both public and private, is an accurate reflection of the legislative intent, then it should stand; however, I do not believe this is true. Therefore, Congress should demonstrate that it was not their intention to extend such jurisdiction and immediately act to correct this error by adopting the present amendment introduced by the Honorable Senator from Texas.
The problem is apparent. I urge the Members of this Senate to consider the statements made in support of this amendment, and consider their commitment to the elimination of unnecessary paperwork, red tape, and bureaucratic interference. This is an excellent opportunity to demonstrate this commitment, and I congratulate Senator TOWER for introducing this amendment, and I urge its immediate adoption.
The PRESIDING OFFICER. Who yields time?
Mr. DOMENICI. Mr. President, I yield myself 2 minutes.
The PRESIDING OFFICER. Is this on the bill?
Mr. DOMENICI. On the bill.
Mr. President, I have been asked by Senator BAKER to see if we could reach an agreement here and not vote on this amendment prior to 1 o'clock this afternoon.
As we all know, he worked very hard on this amendment in the committee, and he supports it very strongly.
He was called over to speak to the President and could not be here until 1 o'clock.
With that background, Mr. President, I ask unanimous consent that the vote on this amendment, the Tower amendment, not take place prior to 1 p.m. this afternoon.
Mr. TOWER. Reserving the right to object.
Mr. HUDDLESTON. Reserving the right to object.
Mr. TOWER. There are other Senators who have to leave before that time, so, reserving the right to object, one Senator may be denying rights to others.
Mr. RANDOLPH. Could we just delay it for a little while? There are other amendments to be offered.
Mr. TOWER. Mr. President, I ask unanimous consent that I may suggest the absence of a quorum without the time being charged to either side.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. TOWER. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The second assistant legislative clerk proceeded to call the roll.
Mr. TOWER. 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. TOWER. Mr. President, I object to the request of the Senator from New Mexico.
The PRESIDING OFFICER. Objection is heard. Who yields time?
Mr. MUSKIE. Mr. President, what is the situation on time on the amendment?
The PRESIDING OFFICER. The Senator from Maine has 4 minutes remaining and the Senator from Texas has no time remaining.
Mr. MUSKIE. Mr. President, I am prepared to yield back the remainder of my time unless someone wants any portion of it.
I yield back the remainder of my time.
The PRESIDING OFFICER. All time is yielded back. The yeas and nays have been ordered and the clerk will call the roll.
The second assistant legislative clerk proceeded to call the roll.
The result was announced — yeas 39, nays 38, as follows:
[Roll call vote tally omitted]