Senator Jim Inhofe, Chairman
Subcommittee on Clean Air, Wetlands, Private Property, & Nuclear Safety
Hearing on Changes to the Wetlands Program
Thursday June 26, 1997

I would like to welcome everyone to the hearing today. This is the first Senate hearing on wetlands issues in this Congress. The focus of today's hearing is recent changes to the wetlands program. Over the last year there have been two major changes to the wetlands program. The first major change occurred last December when the Army Corps of Engineers reissued the Nationwide Permits, beginning the elimination of Nationwide Permit 26. The second major change happened in January of this year when the U.S. District Court for the District of Columbia invalidated the Tulloch Rule. Both of these changes have major impacts on our nation's wetlands policy.

Last December the Corps issued new regulations reauthorizing the Nationwide Permit Program. In doing so they drastically changed Nationwide Permit 26 and announced its elimination within two years. This permit had been in place since 1977 and has been reauthorized every five years. They also announced that they would develop replacement permits over the next two years.

My major concern is when did they Corps decide to eliminate this permit and why. I know the environmental community has been calling for this permit to be eliminated for years. But the Corps had the opportunity to work on replacement permits since they last reauthorized the program in 1991. But particularly disturbing to me is the fact that the elimination of the program was not mentioned at all in the proposed rulemaking last June. The Administration did not propose this program change, they did not solicit any comments, and in my opinion they have not followed the Administrative Procedures Act. I hope the Administration witnesses can shed some light today as to why they felt compelled to change this program without the proper notice and comment procedures.

I am also concerned about the burdens this change will place on the Corps as they work to approve wetlands permits. At a hearing in the last Congress, the Corps defended the slow process time of the individual permits by saying that most applicants use the Nationwide Permit program. By their actions in December they will be increasing the number of individual permits by at least 500, according to their estimates.

They have also placed themselves under the gun regarding the elimination of NWP 26 in under two years. If they don't have adequate replacement permits in place the number of individual permits will cripple the Corps. If it looks like this will happen, then I will introduce and push through the process legislation that continues the old Nationwide Permit 26 program until the replacement permits take effect.

Regarding the Tulloch decision, I do believe the Corps overstepped its Congressional authority to issue the Tulloch rule. This is an issue that should be left to Congress to decide and I think the court was correct in recommending that Congress should take up the issue. My major concerns for the Administration today is to learn how they are implementing the court order, what the district offices are doing, and to ask the Corps for legislative language regarding the underlying problem with the Tulloch rule.

We have a good panel of witnesses today and I hope we hear all sides of the issues, and looking at the witness list, I think we will.