December 15, 1977
Page 39582
AMENDMENT TO THE FEDERAL WATER POLLUTION CONTROL ACT
Mr. CHAFEE. Mr. President, Congress recently completed and the President signed amendments to the Federal Water Pollution Control Act. These are important amendments and much time and hard work were invested by members of both the House and Senate to get a bill that will assure protection of the environment.
One provision of this bill, the section 404 provision which sets the groundwork for a national program to protect our dwindling wetlands, was of great interest to me. I strongly favor such a program because of the tremendous environmental importance of wetland areas.
I would, however, like to clarify for the record one point concerning State programs under section 404. Question has been raised as to the applicability of other Federal statutes, particularly the National Environmental Policy Act and the Fish and Wildlife Coordination Act, to discharges of dredged or fill material subject to regulation under an approved State program. To clarify this question I wrote to Senator MUSKIE, chairman of the Senate Environment and Public Works Committee's Environment Subcommittee and of the recently completed conference between the House and Senate. I believe that his response to me on this subject answers my questions and clarifies completely the intent of the majority of the conferees.
I ask unanimous consent to have printed in the RECORD my letter and Senator MUSKIE's response.
There being no objection, the letters were ordered to be printed in the RECORD, as follows:
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS,
Washington, D.C.
Hon. EDMUND S. MUSKIE,
Chairman, Subcommittee on Environmental Pollution,
Committee on Environment and Public Works,
Washington, D.C.
DEAR ED: It has come to my attention that there may be some misunderstanding concerning the amendments to section 404 of the Federal Water Pollution Control Act which were recently approved by the Congress. Statements have been made which suggest certain Federal environmental laws including the Fish and Wildlife Coordination Act would not be applicable to actions taken by states to regulate the discharge of dredged or fill material under approved state programs, since these Acts only apply to actions taken by Federal agencies.
I am disturbed by statements of this sort since neither I nor a number of other conferees intended this to be the result of the provisions to authorize States to implement the wetland protection program in most areas.
I wish you would give me your views on this matter in order that I might clarify for myself and others the uncertainty here.
Sincerely,
JOHN H. CHAFEE.
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS,
Washington, D.C. Hon.
JOHN H. CHAFEE,
U.S. Senate,
Washington, D.C.
DEAR JOHN: I will be happy to clarify for you and the record what I believe the conferees intended regarding the applicability of the National Environmental Policy Act and the Fish and Wildlife Coordination Act to discharges of dredged or fill material subject to regulation by an approved State program under section 404.
It was the intent of the conferees that any State permit program for the discharge of dredged or fill material approved by the Administrator must, as in State permit programs approved under section 402 of this Act, have demonstrated itself capable of accomplishing the same objectives as the Federal permit program. The State program must include enforcement authority comparable to the Federal program, adequate resources including staff and funds, and ensure full and complete coordination with all related Federal, State and local programs. A State permit program must include substantive decisionmaking criteria at least as stringent as 404(b) guidelines, and followup procedures to assure compliance with the permits that are issued.
Section 67(b) of the conference bill adds a new subsection (h) to section 404 which establishes criteria which must be met by a State section 404 permit program submitted to the Administrator, for approval
These State programs must assure that the Administrator, the public and affected States are afforded notice and opportunity for public hearing on each permit application and that there will be continued cooperation with Federal and Federal-State water-related planning and review processes. This latter coordination requirement would include comments from all agencies such as the Fish and Wildlife Service and State fish and wildlife Coordination Act — and any other appropriate public or private agency that customarily comments on proposed Federal actions which have a significant environmental impact.
The Administrator is expected to assure that these coordination processes exist and will continue before he approves a State program, or before he approves the best management practices program submitted under the section 208 amendment which contain similar coordination requirements. The Administrator is further expected to assure that similar coordination exists for Federal permit applications and proposed general permits as provided in the new section 404(j) of the conference bill.
I hope this discussion clarifies the issues with which you are properly concerned. Sincerely,
EDMUND S. MUSKIE,
Chairman, Subcommittee on Environmental Pollution.