Statement of Thomas W. Winter
Chairman of the Board of Directors
on behalf of the National Aggregates Association
Before the United States Senate
Subcommittee on Clean Air, Wetlands, Private Property and Nuclear Safety
June 26, 1997

Good morning, I'm Thomas W. Winter, President of Winter Brothers Material Company of St. Louis, Missouri, and Chairman of the Board of Directors of the National Aggregates Association.

First, I want to thank Chairman Inhofe, Senator Graham, and Members of this Subcommittee for providing me with the opportunity to appear here today. As Chairman of the Board of Directors of the National Aggregates Association (NAA), I am here today to speak on behalf of the member companies that make up our association. NAA appreciates the time and consideration of this subcommittee and I want to emphasize our willingness, not only as an association, but as an industry, to be helpful to the Members of this Subcommittee, as well as the entire House and Senate, as you continue to revise and reform our nation's water quality programs as well as any other legislative initiative to be considered by the Congress.

I would also like to offer to this Subcommittee, as well as the full Senate Environment and Public Works Committee, the continued support of the staff of the NAA. We are committed to providing you with any information you may need or answering any questions you may have in this process. We are truly an organization focused on the delicate balance between the interests of small business and its agenda and the interests of solid policy making in our nation.

NAA is an international association representing the producers of construction aggregates, which is the largest mining industry in the U.S. Its members produce a majority of the two billion tons of sand, gravel, crushed and broken stone sold annually in the United States dedicated to the maintenance and development of our nation's infrastructure. Of course, wetlands is a very sensitive issue to our industry, and its consideration and preservation are important to us.

I would like to address two related issues this morning involving recent wetlands regulatory and judicial developments:

1. NAA's support for the recent court decision on the "Tulloch" rule, and,

2. NAA's views on the U.S. Corps of Engineers reissuance and decision to end Nationwide Permit 26.

"Tulloch" Rule

As you know, the statutory foundation of the federal wetlands program, Section 404 of the Clean Water Act, regulates the "discharge of dredged or fill material into the water of the United States at specific disposal sites."

In August, 1993, the Corps of Engineers adopted the "Tulloch" rule thereby redefining the term "discharge of dredged material" to include "incidental fallback." Simply stated, the "Tulloch" rule provided the Corps the ability to regulate what is "extracted," and not just what is "added" to the waters of the United States. Because excavation and land-clearing almost inevitably result in incidental fallback, and because, under the rule, that fallback now constitutes a discharge of dredged material, the "Tulloch" rule made all removal activities subject to a permit requirement.

NAA, along with the American Forest and Paper Association, the American Road and Transportation Builders Association, the National Association of Home Builders, and the National Mining Association, challenged this rule by successfully making the argument that "Tulloch" warped the intent of Congress, and went beyond the scope of authority provided by Congress to the Corps of Engineers under the Clean Water Act.

On January 23 of this year, the federal district court in Washington issued a decision which held that the government acted illegally when it adopted the "Tulloch" rule. The court held that the Corps of Engineers and the Environmental Protection Agency acted illegally and declared that the "Tulloch" rule is invalid and set aside, and is therefore not to be applied or enforced by the agencies. The court observed, and I quote "the appropriate remedy for what the agencies now perceive to be an imperfect statute...is Congressional action; [the agencies' administrative] authority is limited to adopting regulations that affect the will of Congress as expressed in the statute."

NAA applauds the decision of the federal district court, and we will continue to work with allied organizations to ensure that it is upheld. We view the court's decision as a reasonable, judicial opinion of wetlands policies.

Following the court's ruling, the Corps and EPA attempted to limit the magnitude of the decision to only those who served as plaintiffs. This attempt, in and of itself, was not sound policy on the part of the Justice Department, and was rejected by the court.

As alarming NAA received numerous complaints and inquiries, all gravitating National Aggregates Association

around the notion, or misinformation, that stated the ruling only applied to the plaintiffs in the lawsuit, or was only applicable in the District of Columbia. NAA will provide documentation of this information upon request from Members of this Subcommittee.

Members of this Subcommittee, NAA is an international trade organization consisting of many small aggregate producers. We need, we rely, and we very much depend on district representatives from the Corps to convey timely and accurate information.

The Corps and EPA issued final formal guidance in April, 1997, and I thank the other plaintiffs in the lawsuit for their efforts to compel the Corps to issue the guidance and eliminate the confusion on the "Tulloch" decision.

Again, NAA is supported by members who's interests are consistent with the small business agenda of our nation. We are, as an association and as an industry, committed to our ideals, and fiercely loyal to our beliefs. Our paramount objective is to work with local, state, and federal officials and cooperate as we can in the development of sound public policy making at the state and federal levels.

In this regard, we respectfully request the "Tulloch" rule remain invalid. NAA also asks that Congress again consider what is reasonable in terms of businesses interests as you continue to reauthorize the Clean Water Act and revise our nation's wetlands policy.

Nationwide Permit 26

The second issue I would like to address is Nationwide Permit #26.

On December 13, 1996, the U. S. Army Corps of Engineers published its reissued and revised Nationwide Permits (NWPs) in the Federal Register. The reissued NWPs became effective on February 11, 1997. The NWPs regulate the discharge of dredged or fill materials into the waters of the United States through a general type permit authorized under the Clean Water Act. NAA considers the Corps acted in a manner inconsistent with public opinion in reissuing the NWPs. I am specifically here to discuss the Nationwide Permit #26.

Nationwide Permit #26 authorizes the discharge of dredged or fill material into the headwaters and isolated waters of the United States. Since the permit was first authorized in 1977, NWP #26 has remained unchanged by allowing up to 10 acres of wetland impact.

National Aggregates Association

During the recent reauthorization, which occurs every 5 years, the Corps reduced the threshold limit to 1/3 acre and 3 acres. Additionally, the Corps imposed the restrictions on

NWP #26 being used in combination with other nationwide permits. Another limitation, invalidating the use of the NWP #26, are projects involving the disturbance of more than 500 linear feet of a stream-bed.

The Corps also decided that NWP #26 will be effective for two years and expire on December 13, 1998, while all other nationwide permits will expire in five years. The plan is to put in place up to a dozen targeted replacement permits prior to expiration. There is no reason to believe the Corps can complete the task in two years when it was late in reissuing existing permits and issuing new permits in the last two 5-year cycles.

NAA believes the Corps reissued its final rule on NWP #26 without fully considering the impact on small producers of aggregates and without considering the significant time factors involved in obtaining individual permits for the same activity. This puts an unjustifiable economic burden on small business. NAA is committed to protecting the waters of the United States but the process needs to be economically sound and legislatively reasonable.

Conclusion

The National Aggregates Association represents business interests who's focus embrace the interests of the American economy. Though the companies NAA represents are small, they are in every state, and nearly every Congressional district. We are not an industry concerned with winning and losing, but much of the time merely surviving.

The members of the National Aggregates Association very much support the federal court's decision on the "Tulloch" rule, and we ask that Congress respect the court's decision.

The aggregates industry is committed to working with all sectors and interests in wetlands preservation. We look forward to working with each of you, and your respective staff, in this regard.

Again, I thank the Members of this Subcommittee for holding these hearings. The National Aggregates Association appreciates your time and consideration of our views.