August 4, 1977
Page 26728
Mr. MUSKIE. Mr. President, I will be glad to open the debate.
First of all, let me disabuse the Senate on one point. There is not a Senator on the floor, including the Senator who is speaking, who supports section 404 as it has been interpreted and implemented by the Corps of Engineers. Much of the rationale of the Bentsen amendment is based on the reaction of the country to over-regulation by the Corps of Engineers of small farmers, foresters, normal agricultural activities, and so on.
Nobody defends section 404. The committee bill does not defend section 404. The Bentsen amendment is aimed at section 404.
So what we are talking about is two approaches to deal with a national problem. What is that national problem? That national problem, if there is one, involves the protection of the Nation's wetlands.
With respect to the Bentsen amendment, if it is adopted, 85 percent of the wetlands of this country will be left unprotected. Two percent of the waterways of the country will be left unprotected.
Now, what the committee bill does is very simple. It undertakes to continue the Corps' traditional jurisdiction exercised since the Refuse Act of 1899 and before.
It was under that jurisdiction that the Corps for all these decades has policed and monitored and approved dredging in the waterways of our country and disposing of the dredged spoil wherever it chose without any consideration for the environmental values concerned or the damage that was done because of that insensitivity.
For the purpose of disciplining the Corps in that respect, section 404 was enacted into law in 1972. The Corps proceeded to take that section and, by its interpretation, expand it far beyond any intent of the Congress so that it found itself threatening regulation in areas of the country which the Corps had never imagined it had any jurisdiction over.
We all began to get letters from farmers, foresters, ranchers, from people whose activities in the mind of the Congress were not in the slightest bit intended to be affected by 404 when we enacted section 404.
Mr. DOMENICI. Will the Senator yield for a question?
Mr. MUSKIE. I have just 5 minutes, I say to the Senator, but I will yield for the question.
Mr. DOMENICI. I just wanted to ask, the Senator said the Corps began to expand its permit system, is it not true a court intervened and interpreted this section so that they had to expand their jurisdiction?
Mr. MUSKIE. That is right. In 5 minutes, I could not cover every detail.
But the effect of it was that the Corps with the courts — and whatever other footnotes the Senator wants to add — found itself in the posture of threatening all these small citizens who are trying to conduct normal activities without undue interference by the Federal Government. That is the problem as it was put in our laps.
But the other problem remains, the protection of the wetlands of this country.
If we do not regard that as a problem, then there is no problem with the Bentsen amendment. If we regard it as a problem—
The PRESIDING OFFICER. The Senator's 5 minutes have expired.
Mr. MUSKIE. As I said to the Senator, my 5 minutes was too little.
I urge to the Senators the committee's approach as a sensible approach which exempts, specifically exempts, the kinds of activities which created this storm.
Mr. BENTSEN. Mr. President, we are all agreed that 404 is bad and it ought to be changed.
My contention is that what the committee actually did was to create a shadow program by the Federal Government. That means that before a State program is approved it has to have the EPA's Good Housekeeping stamp of approval on it. They have to have the "i's" dotted and the commas in the proper place, and that is determined by the Federal Government, and not just by one agency. States have to have the approval of the EPA, they have to have the approval of Fish and Wildlife, and they have to have the approval of the Corps of Engineers.
I still contend that all of the waters in the United States will be subject to a permit program, under the legislation proposed by the committee.
Mr. MUSKIE. Will the Senator yield?
Mr. BENTSEN. I have the same problem with time that the Senator had before, but will yield for a question, not for a speech.
Mr. MUSKIE. Yes. I want to make it clear, the exempt activities in the committee bill are not subject to any Federal agencies.
Mr. BENTSEN. I understand. Concerning exempt activities, there is substantial question as to the meaning of many of those exemptions.
One of the other questions was, what do we do about toxic substances? Section 307 was not changed; 307 is still in full force and effect to protect on toxic substances.
The point was made that it really is not effective. If it was not effective, then why did they not try to modify it, improve it, during the committee hearings?
In addition to section 307, the Toxic Substance Act, the Waste Disposal Act provide tough penalties for toxics which are still in force. My amendment does not restrict these important measures that protect waters from toxics.
Perhaps the most crucial issue is that people are fed up with Federal regulations. All the committee approach does is substitute State regulation for Federal regulation. The bill sends a clear message to State authorities, "Just keep watching over your shoulder because unless you continue to satisfy the Federal bureaucrat, he can pull back his authorization to you any time he wants to."
When they give him that Good Housekeeping stamp of approval, that is not permanent, not by any means.
The bill also permits EPA to review and veto individual permits. The Federal Government retains that kind of restrictive authority under the committee's measure.
So I do not really think the committee has addressed the problem of trying to cut back on paperwork, on red tape, on bureaucracy in this country. I believe the Bentsen amendment does accomplish that. We decided that the Federal Government does not have all the answers, that the States and the Governors and their legislators can best adapt to local conditions and can take care of the wetlands in their jurisdictions. We continue to protect the wetlands along with the navigable streams and along the coastlines. Those are fully protected, under the Bentsen amendment.
I urge the Senate to adopt this amendment. I urge Senators to put their action where their words are, when they say they want to cut back on over-regulation and bureaucracy in this country. Here is a chance for Senators to show that they mean it by voting for the Bentsen amendment. I urge Senators to vote in the affirmative.
Mr. MUSKIE. Mr. President, I move to table the motion to reconsider.
Mr. TOWER. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER (Mr. HATHAWAY). Is there a sufficient second? There is a sufficient second.
The yeas and nays were ordered.