August 4, 1977
Page 26711
The PRESIDING OFFICER. On this amendment there is a limitation of 2 hours, evenly divided.
Mr. BENTSEN. Mr. President, for 2 years now, the people of America have lived with section 404 of the Federal Water Pollution Control Act as interpreted by the courts and administered by the Corps of Engineers. Mr. President, we can now say with certainty that this is one Federal program that has been weighed in the balance and found wanting. Section 404 has become a symbol to many Americans of how a well-intentioned legislative initiative can turn into a quagmire of disruption, frustration, and bureaucratic entanglement for the ranchers, farmers, foresters, and average citizens of this country.
The message we have heard from the people is clear and unequivocal; they have told us with their letters, their telegrams, their telephone calls, and their personal appeals that they are sick and tired of attempting to cope with the provisions of section 404. With the passage of time, their anxiety has turned to resentment, their concern has become determination.
Section 404 has assumed an importance that extends far beyond dredge and fill activities; it has become synonymous with Federal over-regulation, over-control, cumbersome bureaucratic procedures, and a general lack of realism. Accordingly, our debate today will be seen by many Americans as a test case in which Congress attempts to come to grips with a blatant example of unwarranted Federal intrusion into the daily lives of millions of Americans, the sort of intrusion that costs us the support of the people as we strive to realize commendable objectives.
Mr. President, it is with regret that I rise to oppose my good friend, the Senator from Maine.
I had hoped that we would be able to report legislation that resolved the problems inherent in section 404, but such is not the case. The committee has failed to recommend any reduction in the scope of the section 404 permit program as interpreted by the courts. It has not addressed the concerns and frustrations so evident to all of us.
Mr. MUSKIE. Mr. President, will the Senator yield for a question?
Mr. BENTSEN. I would be pleased to yield to my distinguished friend who, I think, has done as much for clean water and clean air as any Member of Congress, and I regret to have to oppose him on this one.
Mr. MUSKIE. So I understand.
The PRESIDING OFFICER (Mr. HUDDLESTON). The Senator from Maine.
Mr. MUSKIE. I think it ought to be clear that no Member of the Senate, as far as I know, defends section 404. The Senator knows that I vigorously opposed the interpretation of section 404 which the Corps of Engineers undertook to implement, and the committee undertook in its proposal to meet the objections of section 404 in one way, and the Senator's amendment seeks to meet it in another way. So the contest is really not between those who defend section 404 and those who object to it but rather it is a competition between two different methods of dealing with the problems created by the corps' interpretation of section 404.
I just thought it might be useful to have that point stated.
Mr. BENTSEN. I would say to the Senator from Maine that I think that is a fair statement. But I do not believe the committee proposal really addresses the problem. I think you still have, in effect, a shadow Federal program that is imposed on the people of this country.
The committee's amendment skirts the fundamental problem: the definition of Federal jurisdiction in the regulation of dredge and fill activities. The program would still cover all waters of the United States, including small streams, ponds, isolated marshes, and intermittently flowing gullies. We are left with a scope of jurisdiction as defined by the courts, a jurisdiction that runs counter to the original intent of the legislation as passed by Congress.
True, the committee has provided for possible delegation of authority to the States in the enforcement of 404. But will this formula reduce the number of activities subject to control? It does not. Does it diminish the burden on the average citizen? It does not. The committee amendment merely shuffles the administrative structure for enforcing a federally imposed permit program.
Under the committee proposal, it is clear that the individual States would have minimal flexibility in developing diversified permit programs to meet their specific requirements and environmental conditions.
Let us consider for a moment how this phantom delegation of power would operate in practice.
Before a State could be authorized to assume delegated authority over phase II and III waters, EPA would have to review and approve the State proposals. The EPA, in turn, would be required to consult with the Corps of Engineers and the Fish and Wildlife Service before acting on a State plan. Since that troika of original enforcers, EPA, the Corps, and the Fish and Wildlife Service, each retains an effective veto over any State proposal, I fail to see how we can realistically claim much in the way of progress.
Furthermore, under the committee proposal, EPA would retain authority to withdraw approval of State programs if they are not administered in strict accordance with the federally sanctioned guidelines. The committee has also accorded EPA the right to review and disapprove individual permits granted by the States in accordance with delegation of powers under 404.
If the committee language is accepted by the Senate, we will be dealing with a shadow Federal program that would saddle the individual States with the administrative burden of implementation.
I sincerely question whether many States will accept delegation of 404 power under such conditions. If the States do not accept delegation, the Corps will continue to administer the permit program over all waters of the United States. Nothing will be changed. We will have done nothing to resolve what is obviously an unacceptable situation.
The amendment I am proposing would provide for effective delegation of power to the individual States. It would allow States the freedom to develop programs that reflect their individual needs and situations, but would also require States to demonstrate that they have the resources and the capability to effectively manage the program.
Mr. President, I believe we are entering a period in the life of our Nation when people are becoming concerned — perhaps even resentful — about the growing control Washington is exerting over their daily lives. We now have a new President who was elected to office on a platform that called for less government, and a return to a simpler way of life. Jimmy Carter understood the mood of America, and responded to it with a message that the voting public embraced as their own.
Faced with the prevailing anti-Washington sentiment, I am confident those Senators now facing reelection will soon begin to hear that same message from their constituents. It would be difficult, indeed, to face the voters at home after tomorrow's recess without having voted to limit this pervasive and excessive Federal regulatory program.
Since enactment of the 1972 act, the budget for the Corps of Engineers Permit Division has escalated from $8 million to a requested $41 million for the next fiscal year. More than 95 percent of this budget increase has occurred since the 1975 court ordered expansion of the 404 program. Furthermore, other agencies are also spending vast sums of tax money simply to keep up with the growing number of 404 permits that they must jointly process. For example, the Fish and Wildlife Service has 160 full time employees — at a cost to the public of nearly $3 million — just to review permits and send their comments to the Corps. EPA has budgeted $1.5 million next year for section 404 activities. But despite these rapidly growing expenditures, the average application still takes 125 days to review.
I find it offensive that before a small farmer can dig new irrigation ditches he must first write the U.S. Army for permission, complete the necessary Federal forms, and then wait an average of 125 days while his request is shuffled from one bureaucrat's inbox to another. I also find it offensive that a farmer who paid hard earned money for new land 2 years ago may now be prohibited by the Government from improving that land for agriculturally productive uses, and will not receive a penny in just compensation for his loss of income from the property.
Mr. President, most individuals currently affected by section 404 are completely unaware that they must petition for Government permission to conduct many of their routine business activities. As more and more people learn what is necessary to comply with this law, public outrage will continue to build. The expressions of alarm that we now hear will be insignificant compared to the deafening cries that we are destined to hear.
Our amendment offers the only responsible approach to resolving this controversial problem. By limiting the scope of section 404 coverage to those waters that are navigable for interstate and foreign commerce, this amendment will restore the program back to the manageable dimensions originally intended by Congress. It also provides protection for our valuable coastal wetlands and for wetlands adjoining navigable waters. Further, because I realize the importance of protecting important wetland that may not fall within this jurisdiction, our amendment calls for Governors
to designate those wetlands and flowing waters within their States which shall be covered in the Corps' administration of the program.
The overall thrust of this amendment is to preserve strong measures protecting important wetlands while dramatically cutting the size, red tape, and bureaucratic entanglements of the present program. It is a reasonable approach, and identical to the language that has been overwhelmingly adopted for the past 2 years by the House of Representatives.
I am aware, Mr. President, that one lobbyist who opposes this amendment was calling news organizations throughout Washington yesterday and advising them that this legislation would permit toxic discharges into smaller, non-navigable, waterways.
This is false, Mr. President. Nothing could be further from the truth and I am deeply disappointed that the Washington Post, on its editorial page this morning reported the assertion of this lobbyist in an editorial, when it said:
The dumping of toxic spoil in a creek, for instance, can poison water supplies miles downstream.
The Washington Post has a deserved reputation for accuracy, Mr. President, for careful research of the facts that it includes in its editorials.
In this case, though, this newspaper made a grievous error.
The fact in this case is that our amendment deals with section 404 of the water pollution law which regulates dredging and filling activities on navigable waters. Section 404 does not speak to toxic discharges, that falls within the purview of section 307 and we do not propose to change the law and permit any relaxation of our efforts to clamp down on the dumping of sewage or "toxic spoil" or any other toxic discharges in even the smallest creek in this Nation.
Any assertion to the contrary is inaccurate, Mr. President, and has no place in the debate taking place today.
I urge my colleagues in the Senate to rise above this atmosphere of emotionalism and deception, and join with me in supporting this reasonable and responsible amendment.
Mr. President, I ask unanimous consent to add as cosponsors of the amendment Senators HANSEN, HAYAKAWA, HELMS, and BARTLETT.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BENTSEN. Mr. President, I ask unanimous consent that Mike Naeve, Margaret Blaszak, Bill Taggart, and Jim Giltmier be accorded the privilege of the floor.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BENTSEN. I told my friend I would yield to him, and I yield to him.
Mr. MUSKIE. I simply wanted the Senator to yield on a point of correction. The Senator's discussion referred to his understanding of the committee bill.
Mr. ANDERSON. I cannot hear.
Mr. BENTSEN. I understand. If it is a matter of discussion, I would like to yield on the Senator's time if I may.
Mr. MUSKIE. I yield on my time. I was going to yield to the Senator from Colorado.
Mr. BENTSEN. All right.
Mr. MUSKIE. It seems to me that the Senator probably inadvertently made a reference to the committee bill which I consider to be inaccurate when he said that in the committee bill it is necessary for a farmer to write to Washington to get permission to dig an irrigation ditch.
The committee bill explicitly exempts construction, and I am reading from the bill, "construction. or maintenance of farm or stock ponds or irrigation ditches or the maintenance of drainage ditches."
So there is no such requirement for a farmer, under the committee bill, to write to Washington to get any kind of permission to dig an irrigation ditch.
Mr. BENTSEN. To my understanding, it does exempt the construction of new irrigation ditches. I was referring to drainage ditches.
Mr. MUSKIE. But the word "construction" is in the language of the bill.
Mr. BENTSEN. Of the ditches for drainage?
Mr. MUSKIE. It says:
... construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches; ...
Mr. BENTSEN. Is it "or the maintenance"?
Mr. MUSKIE. Yes.
Mr. BENTSEN. But not the construction of drainage ditches?
Mr. MUSKIE. No, the word "construction" does not occur there.
Mr. BENTSEN. But not the construction, that is right.