August 4,1977
Page 26766
Mr. ALLEN. Mr. President, I applaud the committee's recognition in S. 1952 that everyday minor drainage activities for the production of food and forest products are worthy of an exemption from permit requirements under section 404. As I read the report of the committee I am confused, however. The report states that—
The exemption for minor drainage is intended to deal with situations such as drainage in Northwestern forests or other upland areas. The exemption for minor drainage does not apply to the drainage of swampland or other wetlands.
In my State we have many lowland forests, both hardwood and pine, that may at times contain excess moisture. These are not wetlands as that term is normally thought of in connection with the legitimate and specific concerns of the environmentalists. Instead, they are lands that are normally used for the production of wood products which may, under some circumstances, require minor surface drainage. This drainage is done usually with small ditches, to insure satisfactory establishment of the next tree crop — that is, to practice good forest management — after a timber harvest. It is important that this type of activity is included in the exemption.
To do otherwise is to legislate against good forest management. Most of the lowland hardwood forests in my State are wet because they have excess soil moisture and a high water table at certain times of the year. This minor surface drainage is necessary to insure proper reforestation and growing conditions for the Nation's important hardwood timber resources. It is not used to convert the site to a different land use, nor is it a threat to other forest values.
Minor drainage is a normal management practice in all crop production on lands that have excessive soil moisture. It is essential to achieve optimum productivity of our important farm, ranch, and forest resources. Minor drainage removes the excess soil moisture that otherwise would drown out newly planted crops or impede good plant growth. For instance, in 1975 more than 150 million acres of lands in farm and ranch production and 92 million acres of productive forest lands had problems with excess soil water.
The wet crop and forest lands which are generally lowland or flood plain areas that fall under the Corps 404 jurisdiction are where the exclusion of minor drainage is needed. It serves no purpose whatsoever to exclude activities on upland or other areas that do not fall within the scope of the section 404 permit program, as the committee report would seem to indicate. I trust then, that it is actually the committee's intent to exclude minor drainage activities on those lands such as I have described which are used for the production of food, fiber, and forest products. Am I correct?
Mr. MUSKIE. Mr. President, the drainage exemption is very clearly intended to put to rest, once and for all, the fears that permits are required for draining poorly drained farm or forest land, of which millions of acres exist. No permits are required for such drainage. Permits are required only where ditches or channels are dredged in a swamp, marsh, bog, or other truly aquatic area.
Mr. DOLE. Mr. President, among the examples of normal farming, ranching, and forestry activities which would be excluded from the 404 program under section 49 of the bill, reference is made to minor drainage. The committee report indicates an intention to limit the definition of minor drainage to the construction of drainage facilities in upland areas and in northwestern forests. The effect of the report language negates the exemption for farm and forest drainage facilities because the permit program is not applicable to upland areas in the first place.
This does not make sense for another reason. Construction of minor drainage facilities is just as typical a farming and forestry practice in the Midwest, the South, and the East.
I agree that the construction of major canals and waterways designed to modify significantly or to drain an entire swamp or marshland should not fall within the category of "minor drainage." On the other hand, ditching, tiling, and the construction of related facilities for the removal of excess soil moisture incidental to planting, protecting, or harvesting crops or to improve the productivity of land devoted to agriculture, silviculture, or ranching does indeed constitute normal farming or forestry practice and is not significant in terms of water quality impact.
I should like to ask the managers whether in the event one or two farmers got together and dug small ditches or installed tiling in order to drain a low lying area of their adjoining farmlands to improve the production of crops, would they have to obtain a permit from the Corps of Engineers?
Wetlands are defined by Corps of Engineers regulations as areas periodically inundated with water and characterized by aquatic vegetation. So, theoretically, any standing water in a field where cattails, or other weeds have grown up around it, would require a license from the corps to drain.
Mr. MUSKIE. Mr. President, I would first like to respond to your statement regarding the Corps regulations. The Corps definition requires a prevalence of aquatic vegetation and is intended to describe only the true swamps and marshes that are part of the aquatic ecosystem.
The type of draining you have described in many cases would not require a permit since the drainage could be performed without discharging dredged or fill material in water, or would occur in areas that are not true marshes or swamps intended to be protected by section 404.