Before the Subcommittee on Clean Air, Wetlands, Private Property and Nuclear Safety of the Committee on Environment and Public Works
U.S. Senate
November 1, 1995
Good Morning Mr. Chairman and Members of the Subcommittee; I am Robert Perciasepe, Assistant Administrator for Water within the U.S. Environmental Protection Agency (EPA). Joining me is Dr. John Zirschky, Acting Assistant Secretary of the Army for Civil Works. We are pleased to be here today to address the important issue of wetlands protection. Nevertheless, we must underscore the Administration's strong opposition to S.851, the Wetlands Regulatory Reform Act of 1995. This joint statement is the result of successful and continuing cooperation among the Federal agencies participating in the Interagency Working Group on Federal Wetlands Policy and actively working together to implement the Administration's Wetlands Plan.
I would like to begin by placing the Administration's strong opposition to the provisions in S. 851 in the proper context. We agree that reform of the Clean Water Act Section 404 program is both necessary and appropriate. From the outset, the Administration has recognized that there are important problems with this regulatory program that need to be addressed, including issues that are best resolved legislatively.
As a result, the relevant question for the Congress and the agencies is not whether to reform the Section 404 program, but rather the extent to which the program needs to be changed to effectively respond to legitimate concerns and problems. The Administration is unequivocal in its position that the changes proposed in S. 851 do not represent responsible reform. To the contrary, the Senate bill would eliminate even the most basic level of wetlands protection.
The American people depend upon the environmental and economic benefits of wetlands located throughout this Nation and I believe we can offer them meaningful reform and maintain effective environmental protection. We have charted a clear course of action for achieving both goals, namely the Administration Wetlands Plan. Moreover, our progress over the past two years in implementing the administrative initiatives contained in the Administration Plan not only demonstrates our genuine commitment to meaningful reform, it also has produced tangible results by making the Section 404 program work better while reducing the regulatory burden on the public.
Consistent with the focus of this hearing, first I would like to explain why S. 851 fails to effectively respond to the important problems facing the Section 404 program. I would then like to discuss our progress in implementing the meaningful reform provided under the Administration Plan by highlighting some of the tangible improvements to the Section 404 program we have already achieved. I also want to identify those issues that the Administration believes would be best addressed through legislative changes to Section 404.
ADMINISTRATION VIEWS OF S. 851
S. 851 proposes to radically revise the wetlands protection program currently authorized in the Clean Water Act and abandon protection of the vast majority of the Nation's wetlands. The Administration is strongly opposed to this legislation.
Enactment of S. 851 would cripple existing protection of wetlands in three major ways --
S. 851 would adopt a scientifically unsound and dramatically narrowed definition of wetlands that would reduce the area of wetlands protected by the current law by between 60 and 75 percent and abandon protection of many important wetlands.
The bill would significantly reduce the authority to protect the few wetlands that would still be covered by the narrower definition of waters included in S.851.
And, S. 851 would create inappropriate, unfair exemptions from wetlands protection for selected special interests and activities.
I will briefly review each of these major problems.
Narrow Definition of Wetlands to be Protected
The EPA, Army Corps of Engineers, Fish and Wildlife Service, and Natural Resources Conservation Service (NRCS), in cooperation with States, recently conducted field tests of the wetlands identification criteria in S. 851 in all fifty States. We determined through these tests that a staggering 60-75 percent of wetlands now protected by the Clean Water Act would not be covered by the wetlands definition in the proposed bill.
While this new definition proposes a dramatic reduction in the scope of the program, the essential issue is whether the proposed definition would leave important wetlands unprotected. We believe that wetlands abandoned by the new definition in S. 851 are important and worth protecting.
Most Americans would agree that the Everglades, the Great Dismal Swamp, and the Okefenokee Swamp are wetlands. Yet, large portions of these areas would not be considered wetlands under S. 851. Most prairie potholes, vernal pools, playa lakes, and other seasonal, isolated wetlands would no longer be considered wetlands. In addition, riparian wetlands would not meet the criteria of S. 851.
Under S. 851, many of the most productive wetlands areas of the country would be unprotected. For example, areas of bottomland hardwood swamps that are dry in the fall are where fish spawn in the high waters of the spring. During migrations, waterfowl rest and feed in small isolated wetlands that produce bumper crops of fish and ducks in years of higher than average rainfall. These wetlands are essential to healthy and resilient populations of economically important fish and wildlife. In addition, many of the wetlands that S. 851 would exclude from protection are the most important for removing pollution from runoff in wet weather and reducing flood damage during major storms. These wetlands save the Nation millions of dollars in costly wastewater treatment.
The basic premise of the new, narrower definition of wetlands in S. 851 is that the existing definition includes areas that are not really wetlands or do not provide the benefits associated with wetlands. In response to this concern, the Congress asked the National Academy of Sciences, the preeminent scientific organization in the country, to conduct a comprehensive and objective review of wetlands delineation matters. Essentially, Congress asked if the existing definition of wetlands was scientifically sound.
The Academy issued its report this past May. The report concludes --
"The Federal regulatory system for protection of wetlands is scientifically sound and effective in most respects. . . ."
Numerous conclusions of the Academy directly refute the proposals in S. 851. For example, the Academy rejects the notion, central to the new wetlands definition in S. 851, that a wetland must be covered by water 21 consecutive days in the growing season. The Academy found that additional factors, such as those now used in delineation of wetlands, should be considered.
The Administration will be working to implement many of the Academy's recommendations for improvements to the wetlands program including steps to regionalize wetlands identification procedures to more accurately reflect local conditions.
Dramatically Reduced Authority to Protect Wetlands
S. 851 would significantly reduce the authority to protect the less than 40 percent of wetlands that would still be covered under the narrower definition of wetlands proposed in the bill.
The bill proposes to classify wetlands into three groups and provide different levels of protection for each group. Up to 50 percent of the wetlands meeting the narrower definition of the bill, including most of the wetlands in Louisiana and Alaska, would be classified as having low value and, under the provisions of S. 851, would be completely unprotected. The combination of the bill's narrower wetlands definition and low value classification would mean that upwards of 80 to 90 percent of wetlands covered by the existing Section 404 program would no longer receive any protection.
Wetlands classified as having medium value would get very limited protection. Any isolated wetland in this category under one-half acre, including many of the Nation's prairie pothole wetlands, would be left totally unprotected. This exemption, based on size alone with no regard for the nature of the project or the environmental effect, makes the limited protection offered to medium value wetlands virtually meaningless. While compensatory mitigation "may" be required for wetlands destroyed in this class, there would be no requirement to seek to minimize adverse effects to this category of the Nation's wetlands by, for example, modifying the project design, where it is practical, to avoid the most significant project impacts.
Only those few remaining wetlands classified as having the highest value would be protected in a manner similar to that provided under current law. Unfortunately, only a tiny fraction of wetlands -- probably less than five percent of the current wetlands base -- are likely to meet the very strict standards established in the bill for high value wetlands.
To be considered a high value wetland, a wetland must provide "critical habitat for a concentration of wetland-dependent wildlife." Even if a wetland meets this strict test, it may still not be eligible for the protection provided to all wetlands under current law. S. 851 provides that a high quality wetland must also be "scarce within the watershed" and its protection be weighed against whether the activity proposed in the wetland is in the public interest. The Administration does not agree that, as a matter of public policy, the destruction of most high value wetlands in a community should have to occur before some level of Federal regulation comes into play.
Inappropriate Exemptions for Special Interests
S. 851 would revise the current Clean Water Act to provide special exemptions from the wetlands program for a wide range of special interests. Some of these special interest provisions include --
-- exemptions benefiting mining activities;
-- exemptions benefitting railroads;
-- exemptions benefitting loggers;
-- exemptions for road building and utility lines;
-- exemptions for cranberry farmers;
-- special provisions to reduce protection of wetlands in Alaska, regardless of the environmental effect;
-- expansion of the existing exemption for "prior converted cropland' from about 53 million acres to about 78 million acres; and
-- provisions to allow development of wetlands in headwaters areas and isolated wetlands.
These provisions are unjustified and inappropriate. They would undermine the effectiveness of the national wetlands protection effort by allowing selected activities and interests free rein to degrade even the most valuable wetlands. In addition, these provisions would create a perception that wetlands protection policy is based on a subjective and arbitrary assessment of the relative importance of a specific activity or interest, rather than the environmental and economic importance of wetlands.
I want to emphasize that, while the Administration opposes these exemptions, we recognize that some of them may raise special issues that should be addressed in an appropriate way that achieves both meaningful reform and effective environmental protection. For example, the Administration has recognized the need for the Section 404 program to be responsive to the unique circumstances in the State of Alaska. The agencies instituted an abbreviated permitting process to ensure that permit decisions for water, wastewater, and sanitation projects in Alaskan villages are made within 15 days. In the first year it was in place, over 15 projects were permitted through this expedited process.
Vanishing Wetlands
Let's take a moment to review the vanishing wetland scenario proposed by S. 851.
First, 60-75 percent of wetlands are arbitrarily defined away as not wetlands.
Then, about half of the remaining wetlands are defined as "low" value and left unprotected, leaving about 10 - 20 percent of the wetlands currently protected by the Clean Water Act with some minimal protection.
Unfortunately, a great many of these "medium" value wetlands are likely to be degraded by projects involving less than half an acre. In addition, many of these medium value wetlands will be threatened by activities that the bill would exempt from compliance with the wetlands program, such as logging, mining, and development.
We estimate that less than 5 percent, and perhaps as little as 1 percent, of the wetlands now protected by the current law may be considered "high" value wetlands eligible for the protection we now provide under current law. And, even this protection can be withdrawn for several reasons, such as the potential for commercial development of the wetland.
The provisions of S. 851 redefining wetlands, reducing authority to protect the remaining wetlands, and exempting selected activities from the wetlands program will dramatically and immediately reduce wetlands protection throughout the country. The combined effect of these provisions would be an abandonment of the Nation's wetlands and a complete renunciation of the national goal of "no net loss" of wetlands first established by President Bush.
Additional Concerns
The Administration is also concerned that S. 851 would disrupt State wetlands programs. For example, S.851 would severely limit existing State authority to review permits for impacts to a State's water quality. As the North Carolina Secretary of the Department of Environment, Health, and Natural Resources stated in a July 14 letter, "[t]his provision coupled with the change in the definition of wetlands would effectively eliminate the state's role in wetlands protection at a time when the functions and values of wetlands are recognized as essential for the protection of our aquatic environment."
State wetland programs have been developed in coordination with the program authorized under the current Clean Water Act. Development of widely variable State wetlands programs would cause confusion among the regulated community and undermine the consistency needed to protect important interstate waters and resources that depend upon interstate protection of wetlands such as the Chesapeake Bay, coastal fisheries, and waterfowl flyways.
EPA APPROPRIATIONS BILL
I want to take this opportunity to reiterate the Administration opposition to the rider attached to the Senate-passed EPA Appropriations bill that would prohibit EPA from exercising its veto authority under Section 404(c). Consistent with the high environmental standard that Congress set in Section 404(c), EPA has used its veto authority very sparingly, considering just 25 cases and completing only 11 final decisions since 1972. This authority is used to protect extremely valuable environmental areas and has protected approximately 7,300 acres of wetlands and other waters of the U.S. For example, during the Bush Administration, EPA took action in the Two Forks Dam near Denver, Colorado, to protect a portion of the South Platte River which has extraordinary aquatic resource values and supports an outstanding recreational fishery which the State of Colorado has designated a "gold medal" trout stream.
Although the perception may be that EPA threatens Section 404(c); veto action carelessly, a 1993 Corps survey found that, of the 4,900 individual permit applications completed that year, there were only seven instances nationwide in which EPA indicated that it would consider reviewing or vetoing the proposed project under Section 404(c). The survey concluded that, in over 99% of the individual permits completed, Section 404(c); was not an issue and caused no delays in permit processing times.
Repeal of EPA's Section 404(c); veto authority does not respond to any legitimate concerns regarding implementation of the Section 404 program. As explained below, the Administration's improvements to this program instead focus on eliminating regulatory burdens on landowners and streamlining the permit process. In fact, EPA and the Corps continue to work together in these areas to respond to the legitimate need for meaningful wetlands reform.
ACCOMPLISHMENTS OF THE ADMINISTRATION'S WETLANDS PLAN
In contrast to the approach proposed by S. 851, the Clinton Administration has demonstrated, through development and ongoing implementation of the Administration Wetlands Plan, that we can have meaningful reform that both reduces the regulatory burden on landowners, farmers, and others and more effectively protects valuable wetlands.
The Plan, which was developed by an interagency group with input from a broad spectrum of wetland stakeholders, was issued in August 1993. It is a common sense, workable set of administrative initiatives designed to make Federal wetlands policy more fair and flexible for the landowner, more effective in protecting valuable wetlands, and better coordinated with State and local efforts.
Many of the 40 reform initiatives outlined by the Plan have already been implemented, while others are underway. These administrative actions, which are summarized below, have resulted in tangible progress directly benefitting landowners, farmers, and others, as demonstrated by recent permit statistics.
In fiscal 1995, approximately 62,000 people applied to the Corps for a Section 404 permit. Over 83% of these applications were covered by general permits that require little or no Federal review, and were authorized in an average time of 17 days. Less than eight percent of the applicants were required to go through the more thorough individual permit review, with an average processing time of 123 days. Of these, only 274 applicants (0.5%) had their permits denied.
In short, when you look at all individuals who had to deal with the Federal government for a Section 404 permit in 1995, the average time for a decision was 26 days. Over the four-year period since 1992, the Corps has reduced its evaluation time for all permits by 21 percent, despite a 60 percent increase in permit applications. I want to emphasize that, while complaints about wetlands permitting have been widely circulated, the vast majority of cases cited before Congress and in the press in recent times occurred before the Clinton Administration improved the wetlands permitting process.
The Administration's progress is the result of successful implementation of the Plan's reform initiatives. Here are just some of the improvements we have made to wetlands regulation:
-- For private landowners, a recently completed Nationwide permit allows landowners to build homes and carry out related activities that affect up to acre of non-tidal wetlands.
-- We have also directed field staff to streamline the permit process for small landowners, farmers and small businessmen who want to carry out routine projects that affect less than 2 acres of wetlands.
-- Emphasizing that all wetlands are not the same, we have instructed regulators in the field to be more flexible in wetland permitting, to reduce the regulatory burden on landowners who wish to accomplish projects with minor impacts.
-- For farmers the Administration has clarified that 53 million acres of prior-converted croplands are not regulated under the Section 404 regulatory program.
-- We have made the NRCS the lead for identifying wetlands on agricultural lands.
-- For all wetland landowners, the Federal agencies have worked together to encourage greater use of mitigation banks thereby making compensatory mitigation more ecologically meaningful and cost-effective for many applicants.
-- We have increased funding to States, Tribes and local governments for wetlands programs. We have looked at the unique circumstances in Alaska and responded with additional flexibility in implementing the wetlands program in that State.
-- We have requested more money for public/private partnership programs that protect and restore wetlands such as the Wetlands Reserve Program.
Instead of discussing each of these improvements in detail, I instead will focus on the
Administration's efforts to streamline the Section 404 program as an example of our commitment
to meaningful wetlands reform and the tangible improvements to the program that have occurred
as a result of implementation of the Plan's administrative initiatives.
Streamlining the Regulatory Process
In response to concerns raised by Congress and the regulated community, the Administration has taken action to address the bureaucratic problems associated with the Section 404 program. This past July, the Corps and EPA coordinated in issuing a new nationwide general permit to authorize activities related to construction or expansion of a single-family home that affect up to one-half acre of nontidal wetlands. This would allow, for example, a couple to build a retirement home on wetlands property they own without applying for an individual Section 404 permit. This new general permit joins hundreds of others under which tens of thousands of activities in wetlands with minor impacts are rapidly processed each year, without an individual permit application and often without any required notification.
We have directed our field staff to streamline the regulatory process for larger projects proposed by individuals that do require permit review. The agencies are making clear that in cases where individuals are seeking to construct or expand homes or farm buildings, or expand small business facilities in nontidal wetlands, they do not need to consider alternative upland development sites. Under this policy, landowners, farmers, and small business owners whose projects affect less than two acres of wetlands ordinarily need only consider opportunities on their own land to avoid or reduce adverse impacts rather than evaluating off-site alternatives for their projects. For example, the permit process is streamlined for the owner of a small hardware store seeking to expand his facility, who will not be asked to look at off-site options or alternatives. Both of these new approaches will directly ease the regulatory burden on small landowners attempting to carry out routine projects on their property by eliminating or reducing permit review.
Along with this regulatory relief program for small landowners, EPA and the Army have directed their field staff to use the flexibility that exists in the Section 404 program to ensure that the level of review reflects variations in the wetlands functions and the nature of the project's impacts. As a result, small projects in low value wetlands will be subject to much less scrutiny than larger projects in high value wetlands.
The Administration also is responding to concerns that the Section 404 program does not provide adequate opportunity to challenge many regulatory decisions short of going to court. Having published a proposed rule this summer, the Corps is now developing a final rule establishing an administrative appeals process that would allow landowners to appeal jurisdictional determinations, administrative penalties, and permit denials without costly and time-consuming court battles. The NRCS already has in place an appeals process for its wetlands determinations on farm land, and EPA also has an appeals process under its administrative enforcement program. In a further effort to improve the Section 404 process as proposed by the Plan, the Corps is developing regulations that establish a firm and predictable 90-day permit deadline for individual permit decisions.
The Administration Wetlands Plan also endorses the expanded use of mitigation banks for compensatory mitigation under the Section 404 program within an environmentally sound management framework. The Clinton Administration is encouraging mitigation banking, especially when developed within the context of a watershed planning effort, because it is an extremely cost-effective tool to reduce permit delays and provide greater certainty to permit applicants while ensuring more environmentally-effective compensation for adverse project impacts. Draft national guidance was published in the Federal Register for public review and comment this past Spring. We are very close to issuing a final guidance document which would encourage the expanded use of mitigation banking under both the Section 404 program and the Food Security Act Swampbuster program. The national guidance is consistent with the mitigation proposals in House and Senate wetlands legislation.
LEGISLATIVE RECOMMENDATIONS
The administrative initiatives undertaken as part of the Administration Wetlands Plan have addressed many of the problems associated with the Section 404 program through responsible reform and effective environmental protection. At the same time, the Administration recognizes that our task is not complete and that additional improvements to the program are appropriate. While we are adamant that S. 851 is not the answer to addressing these outstanding problems, the Administration believes that resolution of certain issues can best be achieved through legislative changes.
One such issue is increasing the role of States, Tribes, and local governments in wetlands protection. This will move regulatory decision-making closer to the people regulated and the resource to be protected, reduce duplication among wetland protection programs at different levels of government, and streamline the permit decision process. In addition to ongoing administrative initiatives designed to bring decision-making to more appropriate levels, there are a number of legislative changes that would serve to further increase the role of States and other governmental entities in wetlands protection.
Congress should provide EPA with the authority to use its Wetlands Grants program to fund both development and implementation of State assumption of the Section 404 program; such grants are currently restricted by statute to funding only development. Also, the Clean Water Act should be revised to include mechanisms in addition to State assumption for increasing the State role in wetlands protection. For example, State Programmatic General Permits (SPGPs) are a very effective interim or alternative step to full program assumption. The use of SPGPs is designed to increase the role of State, Tribal, and local governments in wetlands protection, provide an incentive for watershed planning efforts, and reduce redundancy and overlap between these programs and the Federal Section 404 program. The Administration believes it is important to make wetland management decisions within a broader watershed context that gives State and local governments more responsibility to anticipate rather than react to wetlands issues, and to tailor solutions to local conditions. We therefore support revising the Clean Water Act to authorize watershed management plans. Such plans provide a scientifically sound and rational framework within which local stakeholders can make important management decisions about their resources. Through this process, highly functional and ecologically significant wetlands within a watershed can be targeted for acquisition or other appropriate means of protection. Wetlands suitable for development can be identified, and streamlined permitting procedures - such as general permits and use of mitigation banks - can be implemented to reduce the need for lengthy review of development proposals. Local planning efforts provide an important opportunity to effectively integrate wetlands protection goals with other water resource protection programs, as well as the economic, social, and recreational goals of a community.
Mitigation banking is another area where appropriate legislative action would serve to promote responsible reform and effective environmental protection. Recognizing the advantages offered by mitigation banking to compensate for wetlands losses, Congress should endorse the appropriate use of banking as a compensatory mitigation option under the Section 404 program, within environmentally sound limits.
The Administration also recommends that Congress endorse the continued use of the 1987 Wetlands Delineation Manual. The 1987 Manual has provided a workable and broadly accepted delineation procedure over the past three years. The National Academy of Sciences report released this Spring, which outlines the best scientific methods for identifying and delineating wetlands, concluded that Federal wetlands regulatory programs are scientifically sound and effective in most respects. Congressional endorsement of the agencies' current, scientifically sound delineation procedures as contained in the 1987 Manual will serve to increase public confidence in the Section 404 program.
Finally, further gains with regard to streamlining the regulatory process could be achieved through legislative action to explicitly exclude prior converted croplands from Clean Water Act jurisdiction. In addition, Congress should act to establish the Department of Agriculture as the lead Federal agency for making wetlands jurisdictional determinations on agricultural lands for purposes of both the Food Security Act Swampbuster program and the Section 404 program. Such Congressional action, combined with the administrative initiatives undertaken pursuant to the Administration Wetlands Plan, will serve to ensure that both programs operate consistently and without duplication.
CONCLUSION
In conclusion, Mr. Chairman, there is very good news to report concerning the Nation's wetlands. The combined effects of Federal, State, tribal, local, and private wetlands conservation efforts have slowed the steady loss of environmentally and economically important wetlands throughout the country.
At the same time, this Administration recognized early on that important problems existed regarding the Section 404 program and charted a clear course of action, the Administration Wetlands Plan, to provide responsible reform and effective environmental protection. We have been diligently implementing the administrative initiatives in the Plan to address the many concerns of landowners, farmers, and others with implementation of the Section 404 program. We will continue to work to fully implement the 40 major reforms we have committed to in the Plan.
Unfortunately, Mr. Chairman, the legislation you are considering today would abandon wetlands protection and move us rapidly back toward the dramatic losses of wetlands that were common 20 years ago. This abandonment of wetlands protection would cause incalculable environmental and economic harm. And, it would be tragic because it is unnecessary. The problems and abuses to which this bill seeks to respond are, to a large extent, being corrected by comprehensive reforms of the program.
I hope that you will reconsider the proposals included in S. 851. The Administration stands ready to work with Congress to develop constructive legislative improvements to the Nation's wetlands protection program based on the recommendations we are presenting today for legislative action.
Thank you, Mr. Chairman.