Senator Tim Hutchinson's Opening Statement
before the Senate Environment and Public Works
Subcommittee on Clean Air, Wetlands, Private Property and Nuclear Safety
Hearing on the Army Corp of Engineer's Change of Nationwide 26 permit and the Tulloch rule

Thank you, Mr. Chairman.

I appreciate the opportunity to express my views on this issue in my opening statement, especially considering the difficulty we may have being here throughout the hearing, because of this morning's scheduled roll call votes.

Let me begin by saying that this hearing comes at an opportune time for me, as an Arkansan. One of the agencies that receives the most complaints in Arkansas is the Army Corp of Engineers. Honestly, they are right up there with the IRS when it comes to respect in the State. A lot of complaints are in regard to public relations, which we are in the process of working on. Many of the problems, however, deal with the permitting process of the Corp.

In meetings with the constituents, I have heard the Corp described as "arrogant", "one sided" and "uncooperative"(I can't remember the words you have used in the past, so if you want to replace these, feel free). These are common themes, not isolated incidents. So, we already have a huge problem in Arkansas with the public's perception of the Corp and now the Corp has changed the regulations that exist to protect our wetlands, the Nationwide 26 permit. It is one thing for the Corp to make the changes they see fit with regard to wetlands, but they made many of the changes without regard to public comment.

It is my understanding that three of the provisions changing Nationwide 26 were not in the proposed ruling, yet they were in the final rule. If I understand the Administrative Procedure Act correctly, this a violation of this act. But, even if it were not a violation, one of the most basic tenants of proposing a regulation is to notify the public and allow comment. It is amazing to me this process was not followed.

It is not as if these changes were minor, either. One of the largest changes is to require an individual permit if 500 linear feet of a riverbed is disturbed. There is no definition for what a riverbed is. This definition may be left up to the districts to decide. Another change in the final rule is to eliminate the Nationwide 26 permits altogether. The other change was to prohibit stacking of Nationwide permits. Prior to this rule, someone could use multiple Nationwide permits, if multiple permits were necessary. Now, even if someone is doing something unrelated to the rest of the project, they cannot use multiple Nationwide permits.

This is the type of arrogance that I have seen in the districts in Arkansas. An agency that is supposed to serve the public cannot ignore common courtesy when implementing regulations and it certainly should not even appear to skirt the law.

A big part of the frustration my constituents face with the Corp is a lack of an appeals process. If their request is denied and they want it reconsidered, it is simply sent back to the same group that reviewed it in the first place. In 1993 the Administration set out its goals for a wetlands plan and one of these goals was to establish an administrative appeals process. I don't know what has been done to this point. As far as I know, very little.

I understand this issue also came up in the April House hearing. Mike Davis, who is here today, testified that the Congress had not appropriated money for the Corp to implement an appellate process. To me this is an absolutely ridiculous answer.

We should not be debating in Congressional hearings why there is not an appellate process. This process should exist. Period. Considering the level of contact the Corp has with constituents, an appellate process should be standard operating procedure. Agencies cannot continue to blame Congress for their inaction. Many agencies are facing the same budget difficulties the Corp is facing, yet there are appellate processes available. I understand that Congressman Young indicated in the House hearing that he would introduce legislation to require the Corp to implement an appellate process.

I want those here to know that I plan on offering the corresponding legislation in the Senate. It is time the Corp of Engineers stop making excuses for their inaction. Since the Corp of Engineers cannot act on their own promises, it is time Congress take action. I will work in the Senate to insure that the Army Corp of Engineers becomes more responsive to the needs of my constituents, and to the constituents of those around the country.

Thank you, again, Mr. Chairman.