owow
Office of Wetlands, Oceans & Watersheds
Legislative News
July 1992
EPA Testifies At House Hearing on WRDA Reauthorization Amending
FERC Hydropower Licensing/ MPRSA Would Impact Ocean
Relicensing Dumping Program
On May 15,1991, Martha Prothro, Deputy Assis-
tant Administrator for Water, testified before
the Environment, Energy, and Natural Resources
Subcommittee of the House Government Op-
erations Committee. The hearing was to examine
FERC's administration of licensing and
relicensing for hydropower projects, and the
role of several agencies in the licensing process.
The hearing was held because of concerns about
the significant increase in license renewals that
FERC expects for hydropower projects in the
next few years. Many existing projects were
initially licensed decades ago, and many are
now coming up for renewal.
Specifically, Prothro discussed EPA's role in
State certification of Federal permits and licenses
underSection 401 of the Clean Water Act (CWA).
This section requires States to issue, condition,
deny, or waive certification of federal projects,
including federal hydropower projects, that may
affect the physical, chemical, or biological integ-
rity of water resources. In a few cases, EPA has
assumed this responsibility. Section 401 also
gives EPA the authority to notify other affected
States and make independent recommendations
to the Federal permitting or licensing agency in
cases where a discharge may affect waters in a
state other than where the discharge occurs.
FERC has questioned the extent of a State's
authority under Section 401. In a letter to
Lajuana Wilcher in 1990, FERC argued that con-
ditions on Section 401 certificates that would
protect existing uses, such as fisheries, were
FERC - Continued on Page 2
The Water Resources Development Act (WRDA)
of 1992, S.2764, includes provisions that would
amend the Marine Protection, Research, and
Sanctuaries Act (MPRSA) and impact the man-
agement of contaminated sediments and the
ocean dumping program. The amendments
would establish a goal to end the ocean dump-
ing of any material which violates sediment or
water quality criteria and standards, and re-
quires that no permit be issued for any material
exceeding such criteria or standards. The bill
also provides that EPA become the permitting
authority for dredged material failing the crite-
ria; EPA would issue "special permits" in place
of waivers. Currently, COE is the permitting
authority for all dredged material, and if mate-
rial fails ocean dumping criteria, COE cannot
issue a permit unless EPA gives a waiver.
The bill would also extend ocean dumping regu-
lations to estuarine waters, significantly increas-
ing the number of sites to be designated and
monitored. It is unclear how this extension
would affect the existing CWA Section 404 per-
mitting program which already applies to these
waters. In addition, States would gain the au-
thority to regulate ocean disposal in their waters
as long as the State-imposed criteria or standards
exceeded federal criteria or standards.
The bill contains new site designation and moni-
toring requirements. It would restrict the COE's
current ability to select non-EPA selected sites,
even where the use of approved sites is not
feasible.
WRDA - Continued on Page 2
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FERC - Continued from Page 1
unrelated to water quality. EPA responded to
FERC by stating that the CWA mandate to restore
and protect the “chemical, physical, and biologi-
cal integrity of the nation’s waters” involves
more than just addressing the chemistry of the
water column. Given that Section 401 is one of
the most important tools States have to maintain
water quality and protect drinking water and
aquatic habitats, maintaining the existing level
of authority will continue to be an area of concern
as debate over streamlining the FERC process
continues.
EPA also has responsibilities in hydropower
licensing through its authorities in Section 404 of
the CWA. While the Corps issues Section 404
permits, EPA has review authority and may
veto projects that have unacceptable adverse
environmental impacts.
Prothro expressed EPA’s support for more effi-
cient licensing of hydropower projects. To effect
this change, she suggested that EPA and FERC
enter into an agreement that would clearly in-
dicate how EPA’s environmental review role
could be linked with the FERC process to ensure
that relicensing occurred expeditiously and in
an environmentally sound manner. (Contact:
Benjy Ficks, Wetlands Division, 260-2364).
House Hearings on Wetlands and
Takings
On May 21, 1992, the House Merchant Marine
and Fisheries Committee held a hearing on
wetlands and taking. Views were presented by
Congressional members sponsoring wetlands
legislation as well as representatives from the
States, environmental groups, and public inter-
est organizations. EPA was not invited to testify.
Congressman Hayes testified on l-LR. 1330, the
Comprehensive Wetlands Conservation and
Management Act. The bill, which was discussed
at length, includes provisions providing for
monetary and non-monetary compensation.
Other major issues of discussion included: How
do we reconcile individual property rights vs.
the public welfare?, Who should define a “tak-
ing”?, How is compensation determined,? How
will we pay for compensation?, and Would
H.R.1330 set a precedent for other government
programs?
The committee will continue to consider options
for addressing wetlands regulation in the up-
coming CWA reauthorization. Acknowledging
that the takings issue is difficult and divisive,
Congressman Studds, committee chair, con-
cluded the hearing by requesting that each rep-
resentative testifying provide the committee with
their concept of the “middle ground” on the
issue, along with a description of how their
position differs. (Contact: Nathaniel Stevens,
260-5048).
***
WRDA - Continued from Page 1
Numerous meetings have been held between
Senate staff and EPA and COE staff to provide
comments on the bill. Resulting redrafts are
expected to modify the original provisions to
provide for greater compatibility with existing
programs. (Contact: Craig Vogt, 260-1952).
NAS Study of Wetlands Delineation
Manual Linked with EPA
Appropriation
The House HUD and Independent Agencies
subcommittee is expected to provide $500,000 in
its appropriations bill for a National Academy of
Sciences study on ways to improve the 1987
Corps wetlands delineation manual. This re-
quirement is likely to trigger a larger debate over
whether EPA should be required to use the 1987
manual in its delineations. House rules pre-
clude attaching such a requirement to the appro-
priations bill; however, it could be attached to
the Senate bifi. Last year, the Senate Energy and
Water appropriations bill included language
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OWOW Legislative News
July 1992
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requiring that the Corps use the 1987 manual.
The full House Appropriations Committee is
expected to take up the subcommittee’s pro-
posal in late July. (Contact: Mike Fritz, 260-
6103).
Interagency Work Group Examining
Watershed Approaches for CWA
Reauthorization
An interagency work group has been estab-
lished to examine ways in which a watershed
approach can be encouraged in the Clean Water
Act reauthorization. Specifically, the work
group will be developing options on how to
incorporate watershed approachesto decision-
making into the Act and target resources to
high priority geographic areas. While the pri-
mary focus is on reauthorization, the meetings
also offer an opportunity to exchange informa-
tion on existing watershed approaches to gain
a better understanding of the various pro-
grams within each Agency. Improving this
understanding is a first step towards increas-
ing cooperative efforts and leveraging re-
sources for maximum economic and environ-
mental results in those, areas where common
goals and responsibilities exist. In addition to
EPA, other participating agencies include: the
Department of Agriculture (Soil Conservation
Service, Forest Service, Economic Research
Service), the Department of Interior (Bureau of
Reclamation, Geological Survey), Army Corps
of Engineers, National Oceanic and Atino-
spheric Administration, Council on Environ-
mental Quality, and Office of Management
and Budget. (Contact: Sandy Germann,
260-6418).
National Energy Bills Address
Hydropower Development, Outer
Continental Shelf Leasing
The House and Senate are moving towards a
conference on a comprehensive national energy
bill. The House passed its version, H.R. 766, on
May 27, 1992, by a vote of 381-37. The Senate
version, 5.2166, which is supported by the Ad-
ministration, passed in February by a vote of 94-
4. The Senate bill calls for streamlining the FERC
process for hydropower development, directs
DOE to study the feasibility of increasing the
availability of hydropower production, and
provides for fish and wildlife mitigation through
water conservation. It would also remove FERC
jurisdiction over hydropower projects in Hawaii
and at three sites in Alaska.
In contrast, the House bill includes provisions
that would increase State authority to protect
their waters from hydropower development. It
would restrict hydropower development in and
around federal lands, and prohibit federal agen-
cies from licensing projects on any river segment
protected by a state program. The bill would
also clarify the definition of “fishways”. The
States have been opposed to FERC’s more nar-
row interpretation that fishways only apply to
upstream passage. EPA has interpreted the
definition to allow for both upstream and
downstream passage.
Both the House and Senate bills contain provi-
sions establishing coastal resources enhance-
ment funds using revenues from outercontinen-
tal shelf (OCS) leases. The House bill would set
aside 4% of the revenues from existing leases to
provide block grants to the States for projects
that would protect, ‘conserve, or enhance air
quality, water quality, fish and wildlife habitats,
or wetlands in or near state coastal zones; ame-
liorate adverse environmental impacts associ-
ated with leasing activity in the coastal zone; or
assessing proposed projects within a coastal zone.
The Senate bifi would set aside 4% of revenues
from new leases, with an annual cap of $100
million to fund similar activities. In addition, the
Senate bill would provide for the establishment
Energy - Continued on Page 4
July 1992
OWOW Legislat ye News
Page 3
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Energy - Continued from Page 3
Other Items to Note...
of a coastal communities impact assistance fund
with annual deposits not to exceed $300 mfflion.
Availability of funding in both bifis would be
subject to yearly Congressional appropriations.
The bills also address moratoria on OCS leasing
activities. The Senate bill would require a mora-
torium in the North Atlantic, Washington, and
Oregon planning areas; and areas off California,
New Jersey, and Florida until 2000. In addition
to these areas, the House bill would expand the
moratorium to include the mid-Atlantic, Gulf
areas, and the Aleutian Basin in Alaska through
2002. The House bill also requires the cancella-
tion and buyback of leases off North Carolina,
Florida, and the Aleutians; the Senate bill would
cancel and buyback leases in Florida subject to
the availability of funds. (Contact: Sandy Ger-
man, 260-6418).
ieadquarters Legislative Library
)ffers Variety of Services
Have a question about the status of a particular
bill? Need information about legislation on a
particular topic? The Headquarters Legislative
Library can help. The library offers many ser-
vices, and can provide you with:
o ‘abstracts from the Congressional record
for each day Congress is in session,
o information from Congressional
documents,
Funding for National Estuary Program . The
Water Pollution Control and Estuary Restora-
tion Financing Act, S.2831, has been introduced
by Dodd (D-CT) and Lieberman (D-CT) to pro-
vide special funding to states for implementing
National Estuary Program comprehensive con-
servation and management plans.
National River Database . Congressman
Kostmeyer (D-PA) has introduced H.R.5001
providing for a national database listing the
recreational and other values of rivers across the
country. The database, intended to provide a
national assessment of river resources, would be
developed by Interior in cooperation with the
States.
Water Reclamation . Provisions to reduce water
allocations to agriculture to provide more water
for fish and wildlife habitat in the Central Valley
will be part of the debate over a major water bill,
the Reclamation Projects Authorization and Ad-
justment Act (H.R. 429). The provisions, origi-
nally proposed as part of the Central Valley
Project Improvement Act (I-l.R. 5099), were ex-
cluded from the House passed bill. However, as
the reclamation bill goes to conference, Interior
Committee Chair Miller (D-CA) is expected to
propose the bifi as an amendment for further
consideration.
o a summary of pending legislation, and
o a history of all actions related to a
particular bill.
Legi-Slate, an on-line database of legislative in-
formation, is being used to ensure that the most
up-to-date inf ormation is available when needed.
If you have a question or need assistance, give
the library a call. (Contact: Joan Platten or Pamela
Abraham, (FTS) 260-5425).
‘Legislative News” is a regular newsletter of
the Office of Wetlands, Oceans, and Water-
sheds (OWOW). Its purpose is to provide an
overview of those legislative issues and ac-
tions that are particularly relevant to OWOW
programs. Any comments regarding its
content should be directed to Sandy Germann
of OWOW at 260-7166.
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OWOW Legislative News
July 1992
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