NSF and the Clean Water Act

Marc Kodack (Kodack@SMTP.LMS.USACE.ARMY.MIL)
Wed, 17 May 1995 10:20:42 -0500

Following is a summary of the Clean Water Act rewite
passed yesterday in the U.S. House of Representatives. For
those agonizing over the proposed cuts to the National
Science Foundation's social science programs, equal
concern should be given to other areas, such as the Clean
Water Act and the U.S. Army Corps of Engineers ability to
protect archaeological materials on private lands. The Corps
permit program for all its problems is the only opportunity for
Federal involvement. This involvement thus triggers Federal
historic preservation law and all the requirements that are in
the public interest to protect archaeological materials.

Congressional attacks on anthropology/archaeology are
broad based and a provincial view, e.g. only the NSF is
affected, ill serves the Anthropology profession.


The House approved a sweeping rewrite of the Clean Water
Act (HR 961) by a
240-185 vote May 16.

The bill crafted by House Transportation and Infrastructure
Chairman Bud Shuster (R-Pa) and several Republican and
Democratic panel
members would:

o Authorize $2.25 billion for a waste water state revolving
loan fund in
fiscal 1996, and $2.3 billion annually in fiscal years 1997
through 2000;

o Replace the current storm water permitting program
with a management
program modeled after the non-point source provisions of the
CWA; and

o Ease federal regulations of wetlands and require
compensation of
landowners whose property values have been diminished by
20 percent or more as
a result of federal wetlands regulation.

''I am delighted by the large margin'' of support for the bill,
told reporters May 16. ''But for the [state revolving loan fund]
change, we would have had 10 or 15 more votes'' in favor of
the bill.

He explained that several representatives withheld support
for the bill
because their state would lose significant amounts of funding
under the
revised formula for allocating SRF funds.

Shuster said that congressional opposition to funding
unauthorized programs
will prod the Senate to consider CWA revisions. He said
there is a push among
some liberals in the Senate to block a CWA rewrite.

He said the funding authorized under the CWA rewrite will
result in water
quality improvements.

Meanwhile, Reps. Sherwood Boehlert (R-NY) and Norman
Mineta (D-Calif)
pointed out May 16 that the margin of support for the bill
would not be wide
enough to override an anticipated presidential veto.

''These new House-approved amendments are a polluter's
dream come true, a
nightmare for the rest of us, and an embarrassment for the
House of
Representatives,'' Mineta said in a statement.

''The only saving grace today is that the final vote in the
House was
clearly beyond the ability of overriding the presidential veto
which has been
recommended in the event that this legislation gets anywhere
near the
president's desk,'' he said.

White House Spokesman Mike McCurry told reporters
May 16 that the
Environmental Protection Agency, the White House Office of
Management and
Budget, and the Interior Department continue to recommend
that President
Clinton veto the Shuster CWA rewrite if it is passed in its
current form.

''I'm not waving a veto pen right now, since I don't get to
use a veto pen
anyhow, but we will look at the legislation as it comes to the
McCurry said.

The House rejected several modifications to the wetlands
provisions of the
bill May 16, including a substitute amendment offered by


The House, by a voice vote, approved modifications to
provisions of the
CWA that encourage states to develop programs to control
polluted runoff in
coastal zones.

The amendment, offered by Reps. Thomas Petri (R-Wis),
would allow a coastal
state to seek an exemption from participation polluted runoff
program administered under the Coastal Zone Act
Reauthorization Amendments.

Under current law, coastal states must develop enforceable
non-point source
pollution control programs or face reductions in eligibility for
EPA grants.
EPA and the National Oceanic and Atmospheric
Administration currently share
responsibility for administering the coastal zone
management program.

The Petri amendment would allow a coastal state to satisfy
requirements through a polluted runoff control program
administered under
Section 319 of the CWA. EPA would be allowed to require a
state to develop a
coastal zone management program if it determines that the
non-point source
program is inadequate to protect water quality.

The measure also would designate EPA as the lead
agency with responsibility
over the coastal zone program.

The Petri amendment reflected a compromise achieved
between the supporters
of the Shuster bill and proponents of a provision offered by
Boehlert that
stripped a provision from HR 961 that would have ended the
coastal zone
management program. The House approved the Boehlert
amendment by a 224-199
vote late May 10 (92 DEN AA-1, 5/12/95).

Several environmental group representatives expressed
reservations about
the Petri amendment, noting that members had not seen the
details of the
provision before voting on it.

The House approved only a few other relatively minor
amendments to the
Shuster bill May 16.

The House deleted a provision that would have prohibited
property from
being classified as a wetland based solely on the fact that
migratory birds
use, or could use it. Gilchrest offered the amendment
deleting that provision
of the bill. The House approved the measure offered by
Gilchrest by voice

An amendment offered by Rep. Gene Taylor (D-Miss) that
would direct the
corps to issue regulations requiring that dredged or fill
material be used for
environmentally beneficial projects when feasible was
approved by voice vote.

The House also approved a provision offered by Rep. Bob
Franks (R-NJ) that
would ensure that the Army Corps of Engineers gains
jurisdiction over only
dredge material and not other wastes. The amendment also
would ensure that the
corps bases its regulation of ocean dumping on baseline
standards developed by

An amendment offered by Rep. Frank Riggs (R-Calif)
adding pipelines and
municipal water reuse operations to the list of activities that
do not require
wetlands permits was agreed to by voice vote.


Several amendments to the wetlands provisions of the bill
were defeated
May 16.

The amendment offered by Boehlert that would have
rewritten the wetlands
provisions of HR 961 was defeated by a 185-242 vote.

Boehlert told BNA May 16 that he was disappointed with
the vote, but
pleased with the relatively narrow margin of disapproval.

''The odds were heavily against us,'' he said.

He said the vote ratio puts Senate Environment and Public
Works Committee
Chairman John Chafee (R-RI) in a stronger negotiating
position over the
wetlands provisions of any CWA rewrite bill he considers.
Chafee said in a
speech in March that his staff would begin drafting its version
of a CWA
rewrite bill in June.

The Boehlert amendment would have broadened the
definition of wetlands to
include any area that is inundated or saturated by surface
water or ground
water at a frequency and duration sufficient to support a
prevalence of
wetlands plants.

The Boehlert substitute also would have:

o Required the Environmental Protection Agency to
initiate a national
wetlands restoration strategy in cooperation with other
federal agencies,
state and local governments, and the private sector;

o Directed EPA to create a wetlands coordinating
committee comprised of
federal, state, and local government officials, and
associations to advise EPA
and the Army Corps of Engineers on regulatory issues, and
to help integrate
wetlands conservation efforts; and

o Directed federal agencies to continue using a 1987
corps manual for
delineating wetlands until the corps and EPA develop a new

In contrast, the Shuster bill would require that an area
defined as a
wetland be saturated at its surface for at least 21
consecutive days during
the growing season, for a majority of years that data on the
area has been

The Shuster bill also would require compensation of
landowners whose
property values have been diminished by 20 percent or more
due to federal
wetlands regulation.

HR 961 would require that wetlands be classified according
to their
ecological value. The level of federal regulation of these areas
would vary
according to their assigned value. Wetlands considered by
some to have lower
ecological value -- such as isolated wetlands in urban areas
-- would be
afforded little or no federal protection.

The House debated the Boehlert amendment for several
hours May 15 and May

Several House members -- including Reps. Robert Borski
(D-Pa), Mineta,
Wayne Gilchrest (D-Md), and Jim Saxton (R-NJ) -- voiced
support for the
Boehlert amendment.

Many supporters said the provisions of the Shuster bill
would exempt more
than 50 percent of existing wetlands from federal regulation.

Several other members -- including Shuster, House
Resources Committee
Chairman Don Young (R-Alaska), and Rep. Jimmy Hayes
(D-La) -- urged House
members to oppose the amendment. They maintained that
the Boehlert amendment
would not achieve needed reforms to the federal wetlands

Jessica Landman, an attorney with the Natural Resources
Defense Council,
told BNA May 16 that the defeat of the Boehlert amendment
amounted to a
''thumb in the eye'' of states. She said the amendment --
which was drafted by
the National Governors' Association -- sought to shift greater
to states and localities.

Several agricultural organizations, including the American
Farm Bureau
Federation and the National Cattlemen's Association,
supported the amendment.

Meanwhile, the House, by a 180-247 vote, defeated an
amendment offered by
Gilchrest that would have omitted provisions of the Shuster
bill calling for a
three tier wetlands classification system. The Gilchrest
amendment would have
required the corps to develop wetlands classification rules
using the best
available science.


The House rejected several other amendments May 16,
Meanwhile, the House, by a 180-247 vote, defeated an
amendment offered by
Gilchrest that would have omitted provisions of the Shuster
bill calling for a
three tier wetlands classification system. The Gilchrest
amendment would have
required the corps to develop wetlands classification rules
using the best
available science.


The House rejected several other amendments May 16,

o A measure offered by Rep. Ron Wyden (D-Ore) that
would have modified
the ''takings'' provisions of the bill. The amendment would
have blocked a
landowner from seeking compensation if the federal
government's failure to
take the regulatory action in question would result in a
$10,000 or more
decrease in the value of other private homes; and

o An amendment offered by Rep. Frank Pallone (D-NJ)
that would have
deleted a provision of the bill giving the corps exclusive
authority over navigational dredging. Currently, the corps and
EPA share
responsibility over various aspects of the dredging program.

Marc Kodack

The views expressed by myself are mine alone and not those
of my employer.