August 4, 1977
Page 26720
Mr. MUSKIE. Mr. President, how much time remains?
The PRESIDING OFFICER. The opponents have 27 minutes remaining, and the proponents have 26 minutes remaining .
Mr. MUSKIE. I yield myself 5 minutes, if I may, with the permission of the floor manager of the bill.
Mr. President, I must say, with all the assurances on both sides, that this is such a serious matter that we should not react to it in an emotional or an irrational way.
Listening to some of the debate puts me in a state of considerable confusion. What is it that we are trying to do in this provision of the bill?
No. 1, we are trying to eliminate the impact and the implications of section 404, which has generated much emotion all across the Nation. No one on this floor is defending section 404; yet, much of the debate to which I listened has been directed against section 404.
I hope that Senators — there will not be many, because there are not many on the floor — will focus on the real issue, which consists of at least these questions:
First, is there a problem of protecting wetlands that is of national interest? Second, is there a rational proposal before us, either in the form of the committee bill or the Bentsen amendment, which will enable us to protect that national interest without imposing unreasonable, burdensome and unjustified regulation upon citizens who are powerless to do anything about the problem?
If I am right in stating those questions, then there is such a proposition, and I disagree wholeheartedly with my good friend from New Mexico, Senator DOMENICI, on that proposition.
We have had at least 2 years — as a matter of fact, we have had since 1972 — to consider this problem, and we know there is a problem. Let me state what it is.
There is no question that the systematic destruction of the Nation's wetlands is causing serious permanent ecological damage. I have not heard even the proponents of the Bentsen amendment dispute that conclusion.
The wetlands and bays, the estuaries and deltas are the Nation's most biologically active areas. I have not heard the proponents of the Bentsen amendment argue against that.
They are a principal source of food supply. They are the spawning grounds for much of the fish and shellfish which populate the oceans, and they are passages for numerous upland game fish.
They also provide nesting areas for a myriad of species of birds and wildlife.
If there are those on the Senate floor who argue that those are not sound premises for national policy makers, I wish they would stand and tell me so. But I have heard nobody say that in the course of this debate.
So there is a problem. How do we deal with it? So far as the committee position is concerned, it says two things: One, there is a legitimate national role, roughly spelled out by the 1899 Refuse Act, which has been the basis of the Corps of Engineers' jurisdiction over dredge and fill operations for the last 80 years.
The PRESIDING OFFICER. The Senator's 5 minutes have expired.
Mr. STAFFORD. I yield the Senator 5 minutes.
Mr. MUSKIE. Within that broad jurisdiction, the committee bill would continue the jurisdiction of the Corps of Engineers, which it has always had.
It was the purpose of section 404 to discipline the Corps of Engineers' discharge of its responsibilities under the 1899 act by requiring it to take into account the toxic nature of the materials which it was shifting from the bottoms of our waterways into wetlands and other vulnerable areas. That was the purpose of section 404, and it is a legitimate purpose and it is a purpose which I hope will continue to be served by the decisions which the Senate makes on this question today.
But there are other wetlands problems, and they happen to exist in areas which are also the subject of rather normal human activities by foresters, by farmers, and by others who are using the land to make a living.
The initial response to section 404 was to interpret it so as to extend its potential jurisdiction over those normal activities which would subject citizens to over-regulation, and we all began to get letters protesting that potential intrusion upon their normal activities.
Every proposal before this Senate, every one, is designed to exempt those normal activities from that kind of over-regulation by the Corps of Engineers or anybody else. Any argument that is made on the floor to the contrary simply misrepresents one or the other of the proposals upon which we will be asked to vote before this debate is over.
The committee bill is very clear on this proposition, very clear. For instance, in response to this question let me give an answer: How does the committee proposal handle minor agricultural drainage? I put this question because the Senator from Texas put it to me earlier. The answer is this: First, the committee's program does not apply to any drainage activities which occur in upland areas.
The committee amendment also specifically exempts the construction and maintenance of agricultural irrigation ditches and the maintenance of agricultural drainage ditches.
For instance, if the drainage is being constructed in a field already in agricultural use for crops such as soybeans or corn, the drainage activity would not be subject to any permit under the provisions of the committee bill.
What types of farming and forestry practices are exempt from permit requirements under the committee bill? Let me list them: Normal farming and forestry activities such as plowing, seeding, harvesting and cultivating, minor drainage, upland soil and water conservation practices, maintenance and emergency reconstruction of existing fills such as dikes, dams and levees; construction and maintenance of farm or stock ponds and irrigation ditches; maintenance of drainage ditches, construction and maintenance of farm and forest roads, placement of dredge and fill material from farming and forestry practices which the State chooses to regulate by best management practices.
Now, it is the implication of some of the debate that has been offered by the Senator from Texas that these activities cannot be permitted unless the farmer comes here to Washington and gets a permit from some bureaucrat. That simply is not the case under the Senate bill. These activities are exempted from Federal regulation under the committee bill.
We leave those kinds of activities and other activities which involve agricultural runoff or runoff from any activities whatsoever to States under the section 208 program, and that is very clear. Or if what are involved are point sources, they will be subject to permits under the section 402 program. So these normal activities which have aroused normal Americans—
The PRESIDING OFFICER (Mr. BUMPERS). The Senator's 5 minutes have expired.
Mr. ANDERSON. I yield 5 more minutes.
Mr. MUSKIE (continuing) Normal Americans against the threat of over-regulation by the Corps of Engineers have been exempted from that threat, and yet it is a threat which is the underlying and principal argument of those who urge adoption of the Bentsen amendment.
The question of toxics has been raised. Toxics have not been dealt with effectively by this Congress under any piece of legislation we have even enacted into law. Never, never. The Bentsen amendment would eliminate one of the few tools that are available under present law to EPA to at least identify what toxics particular dredge and fill activities are discharging into the waterways by eliminating the permit system.
It is all well and good to say, "Well, 307 is still there." That is like saying the Lord's Prayer is still there. But 307 will not work even to identify the toxics unless somebody has some authority to find out where they are, where they are coming from, where they are being discharged, and which ones ought to be stopped.
I am getting a little fed up myself, having written environmental laws for 15 years, to keep picking up the paper and reading about a new toxic that is killing more people, that is making more people ill because I have not done my job. We ought to be doing a better job, not a lesser job, to protect the people of this country against toxics, and the Bentsen amendment is a step backward. It is not a step sideways, it is a step backward.
I listened to the Senator from Texas make his arguments on the toxics. The Washington Post is absolutely right on this point. Section 307 does nothing to prevent the discharge of toxics into waterways because you wipe away with your amendment the permit system, which is the one way of giving teeth to section 307.
Those are the kinds of facts that most Senators ought to be listening to. You know, I have been living with this problem for a long, long time. This particular one of dealing with fill materials, dredge materials, runoff materials, is one the committee has found one of the most difficult with which it has had to deal.
Senator DOMENICI has been a very constructive force in committee debate on this question. Senator McCLURE has been, Senator BENTSEN has been, we all have been. But, gentlemen, what the committee has proposed here is not some Draconian over-regulatory scheme we are foisting on the American people. What it is is a scheme to insure that the Corps of Engineers respects environmental values within its traditional jurisdiction, and that the States are given the responsibility under section 402 to manage other sources of pollution.
If anybody in this body, including Senator DOMENICI, thinks we are going to have a better answer if we do nothing this year, he has learned nothing from his experience on the committee. We have learned in the committee that you have to build in an evolutionary way to deal with these problems.
The next big problem — it is not next, it is now — is not conventional pollutants which eat up oxygen contents of the waterways, it is toxics, toxics that cannot be dealt with effectively by secondary treatment, toxics for which we have found no total effective answer, and toxics are part of the problem we are talking about this afternoon.
I think the committee amendment, with its shortcomings — and it has them — is far preferable to the meat ax approach which is taken by the Bentsen amendment. When I say that I am not in any way denigrating the quality of the Senator from Texas, his public spirit, and his concern for the public welfare. I have had too much evidence to the contrary on that point to challenge it. We just happen to disagree on this point, and he knows when I disagree I often do it with considerable vigor. [Laughter.]
The PRESIDING OFFICER. Who yields time? Is all time yielded back?
Mr. BENTSEN. Mr. President, the nice thing about the Senator from Maine is he does not have to be disagreeable when he disagrees, and he is not. I appreciate that.