BOARD01703

• Board Meeting Date: 5/5/1981
• Description: CWCB Meeting
• Board Meetings - Doc Type: Meeting

illa-rch 24, 1981

~r. BENTSE:-r. ~r. President. today I
am Joining with r::lY' dlsllilguished col-
leagUe from Texas. Senator Town.. in
1ntroducing a '~ill to rer.se the currently
complex and disruptive bureaucratic
nightma.re of redtape of the dean Wa.ter
Act ~ection 404 d:edge and fill permit
program.
My colleagues will well remember that
thls 18 not the first tlme Congress has
had to deal with the issoe. In 1975 and
again In 1977 Congress failed to change
section 404 of the z.ct to d..-aw a clear
Une oobeen those dredge and fill permit
requirements that are in the national
interest and those that represent Federal
encroachment on the everyday Uves of
this Nati(J:l'S cit1ze:1s.
Under c~nt law eve.-y fanner and
rancher who wants to alter the use of
hJs land. every city that wants to lay a
waterline. every COtmt7 that W3I1ts to
constroct a drainage ditch could need
a Feder31 pe..-mtt.
In 1977 the Co,,= attempted to re-
spond to problems with the 404 program
that were resulting in unrea5003.ble tune
delays for permits. Federal control o!
traditionally state responsibilities. and
Federal inIr1ngement on the water rights
at private landowners through a defi.I:l-
tion ot "naV:gsble" waters that had been
broadened to e.'Ctend to all waters of the
United Stat.s. We were told dtn1ng l1ear
debate an ~endments to section 404
program tr...at tJ1e mod1.ficetions-which
have now beco:ne law-would ... . . dis-
pel thf'! widesi):,e:ul fem-s that the pro-
gram is reg-u13.t1n~ acti\1ties that 'lVe.re
not Intended to be regulated." SadlY. thls
is not the case.
In 1977 it. took the average 404 permit
B.ppUc.q,tfon 125 days to be reviewed.
Proponents of U:.e current law argued
that time limits :vcre ~et within the law
to limit review Urne toO 90 days. What has
happened s!.r::ce then? A recent GAO
study ot three corps dlstr!ct offices re-
vealed that a,,'erage permit processing
time l<!n2es from 120 days to 300 days.
Pennl~ delays are worse today than they
were 4 years ago. And they are going to
get even worse as budget cuts and staif
reductIons at the key per.n.itting agen-
cies are Implemented and take their toll.
In 1977 we were told that the CUtTCnt
law provided for States to take permit-
ting responsibility for the Slrc:.alled
pb3se II ar.d pb3se m waters. And that
thts delegation to the states would re-
duce involvement. I said at th~t. time
that-
EPA. the corps. &nd the flah and wUd-
ute sen1~. each retains an e'tf'ect1ve v~to
over an1 State propo63J. r tall to see how
we ean ~cally claim. much I.n the way
of progress. . . . I sincerely qUestion wJJe_thet"
many states wtll aeeept delegation (ft 404:
powet' WldeI' .such eondlUons.
Mr. President, my tears have become
reality. Not ,. single State has been
delegated 404 responslbUlty.
In 1911 we were told that the problems
ot Federal encroachment on the rights
at private Ia:ldOWIl.... would be resolved
by spee1ftc activities exemptfons and
delegation o! the pb3se II and phase m
waters regula~ry authority to the
States. But thls apProach never really
faces the key questlon-the de11nltlon o!

CONGRESSIONAL RECORD-SEi'';,

Federal jurisdiction in the regulation of
dred.:.~ and fill activities. It makes eV'ery
1:mdO\....n.er with any bit of water subject
to the maze of Federal regulation and
power 01 the Federal Government when-
eyer he wants to alter the use of wzter
on his land. Le~ me give you a telling
eX3..Il:ple. Much of the arid West ha.s
small bodies of water that exist period-
lcall7 after rainf::Jl. In my part ot the
country they are called "pl.:1ya" takas.
Tnere are 10.000 o! these lakes. Most
have r.o dlscharge. Almost all are pri-
vately held and used by their owners
tor agriculture purposes. Recently, the
Fish and Wildli!e Service convinced the
E:t:.vironmentaJ Protection Agency to de-
ctare these private 1akes ""bj"", to the
404 process. This far exceeds the concept
o! dreCge and fill _+..ting that Con-
gress Intended. Yet. under the sweeplng
and uncontrolled authority of current.
Jaw. it may well be allo'ilOable.
Clearly. with the 404 program loosely
strnctured-as it 15 under current law-
it lends Itsel! to misinterpretations In
the courts and abuse by the bureaucracy.
The time has co"'e tor Congress to re-
esta2Jlish its will and define a clear and
workable program. The bill that Senator
ToWEll. and I a..--e introducing today is a
step In thAt direction.