21 ELR 10308 | Environmental Law Reporter | copyright © 1991 | All rights reserved

Water Resources Acts: Developing an Environmental Corps

Editors' Summary: The Corps of Engineers has historically had the unenviable task of making water resource project decisions knowing that any decision, for or against development of a project, will be criticized by the interests that lose out. Congress, currently in the process of reauthorizing the FWPCA, is in the throes of deciding whether the Corps' wetlands delineation manual and mitigation policies should be revised. That Congress, and other interested parties, have become so interested in the Corps' growing environmental protection efforts is at the heart of this Article. The authors, both of whom are counsel for the House Public Works and Transportation Committee's Subcommittee on Water Resources, explore how the Corps has come to have an environmental protection ethic in its regulatory role and civil works water resources projects. The Article analyzes the Corps' traditional role, how the congressional authorization process has altered the Corps' direction regarding environmental protection over time, and the evolution of water resources development acts (WRDAs). The Article focuses on the importance of WRDA 1986's administrative developments, which provided momentum for the Corps to emphasize environmental protection. The Article tracks the two-year WRDA cycle, concluding with WRDA 1990, which provided the Corps with a new environmental protection mission and wetlands and habitat protection requirements. The Article concludes with prospects for the Corps' new role.

Mr. Grumbles is Assistant Minority Counsel and Mr. Kopocis is Assistant Majority Counsel for the Water Resources Subcommittee of the Public Works and Transportation Committee, U.S. House of Representatives. Both have held these positions since 1985. The opinions in this Article are those of the authors and do not necessarily reflect the views of the Public Works and Transportation Committee or any of its members. The authors would also like to thank Ms. Dorothy E. Chepp and Ms. Karen D. Rose for their invaluable assistance in preparing this Article.

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Environmental protection has long been a component of the United States Army Corps of Engineers' (Corps') civil works and regulatory programs.¹ Water resource development and regulation in the United States have evolved from a focus on maximum utility of water resources, during early expansion and settlement of the nation, to a recent focus on maximum sustainability of our water resources. At the same time, the extent to which the Corps has incorporated an environmental ethic into its activities has evolved. One tangible result of this evolution has been the creation of tension between those interests favoring economically driven water development projects and those interests favoring environmental protection. In [21 ELR 10309] turn, all Corps activities have come under heightened scrutiny by the affected parties, Congress, and the public.

Recently, the Corps has come under intense criticism for its efforts to implement an environmental ethic.² However, this attention to the Corps' decisions has produced positive results for both development and protection forces, and has prompted dramatic growth in the Corps' environmental responsibilities.

The cumulative effect of this scrutiny has been to cause the Corps to undergo a revolution in the last five years. Perhaps the Corps is merely following the growing national emphasis on environmental quality, evidenced by Earth Day 1990 and other events.³ Regardless of the cause, the Corps is showing signs that it wants to trade in its "gray suits" for "greener ones." At the same time, Congress is providing legislation to redirect the Corps' priorities.

Recent initiatives by the Corps' Office of the Chief of Engineers and the Assistant Secretary of the Army for Civil Works (ASA(CW)) signal important changes in the Corps' general policies on the environment, wetlands protection, and hazardous and toxic waste management.⁴ Congress' landmark Water Resources Development Act of 1986 (WRDA 1986),⁵ which contained a multitude of environmental directives and authorities, was one of the most significant factors (outside of the annual appropriations process) in redirecting the Corps.

The Water Resources Development Act of 1988 (WRDA 1988)⁶ quietly continued the Corps' trend toward environmental protection. Most recently, the Water Resources Development Act of 1990 (WRDA 1990)⁷ established an environmental protection mission, a no net loss of wetlands goal, and environmental dredging authorities for the Corps. At a minimum, WRDA 1990 reflects Congress' intent that the Corps should act as both water development engineers and "environmental" engineers.⁸

Water Resources Program of the Corps

The Corps constructs projects to provide flood control, navigation, beach erosion control, shoreline protection, hydroelectric power, recreation, water supply, and fish and wildlife mitigation and enhancement. Once a Corps water resources development project is proposed, the first step is a study of project feasibility. If the Corps has previously studied the area impacted by the proposed project, the new study can be authorized by a resolution of either the House Committee on Public Works and Transportation or the Senate Committee on Environment and Public Works.⁹ If the area has not been previously studied by the Corps, an Act of Congress is necessary to authorize the study. However, studies are usually authorized by committee resolution since nearly all areas of the country have been the subject of a prior study.

The Corps uses a two-step study process. First, it performs a general reconnaissance study at federal expense. This study assesses factors such as the federal interest in the proposed project and potential nonfederal sponsors of the project. If this indicates that a more detailed study should be undertaken, the Corps undertakes a feasibility study report, the cost of which is shared equally by the federal government and the nonfederal interests involved.¹⁰ The feasibility study report assesses such things as the various alternative project components, costs and benefits, and recommendations of the district engineer. If a study does not receive any funding within five years, it is to be submitted to Congress for automatic deauthorization. If this happens and the study is not funded within 90 days after being submitted to Congress, the study is automatically deauthorized.¹¹

The sequence of a study within the Executive Branch begins when a report is completed by a district engineer and approved by the appropriate division office of the Corps. It is then submitted for Washington-level review, including the Board of Engineers for Rivers and Harbors and the Chief of Engineers. The Chief of Engineers prepares a proposed report and submits it to affected states and interested federal agencies for comment. After the comment period, the Chief of Engineers prepares a final report and submits it to the Office of Management and Budget (OMB) for clearance. After review by the OMB, the results of the study are formally transmitted to Congress for consideration.

For a final report of the Chief of Engineers to be reported favorably by the Executive Branch, it must be determined that the proposed project is achievable, based on engineering principles, economically feasible, and environmentally acceptable. All necessary steps to comply with the National Environmental Policy Act should also be complete. Further, a nonfederal sponsor willing to contribute to the project should be identified. Because the reviews of the Secretary of the Army and the OMB are based largely on policy considerations, Congress has been willing to authorize projects based on reports by the Chief of Engineers in water resources development acts prior to complete review by the Secretary and the OMB.¹² Generally, Congress believes it [21 ELR 10310] has an adequate basis on which to make a decision to authorize a project, since it has been given copies of all the pertinent reports used by the Secretary and the OMB.

Projects transmitted by the Administration and additional projects selected by Congress are traditionally authorized in water resources development acts, typically enacted in two-year cycles.¹³ The final step after authorization is funding of project construction by the Appropriations Committees in the annual Energy and Water Development Appropriations Act. That law generally provides a lump sum amount for studies, construction, and operation and maintenance. The specific amount earmarked for each project is stated in the report accompanying the bill.¹⁴ At any given time, funding authorizations are in excess of annual appropriations. If a project does not receive funding for construction within five years of its authorization, it is eligible for automatic deauthorization. Such projects become deauthorized 30 months after the list is submitted to Congress if no funds are obligated for construction during that time.¹⁵

Water resources projects can also be authorized through other mechanisms. Under § 201 of the Flood Control Act of 1965,¹⁶ as amended, if the estimated federal cost of a Corps water resources project is less than $ 15 million, the project can be authorized by resolution of both House and Senate Public Works Committees. This procedure is used only for noncontroversial projects. However, study authorizations and construction funding under § 201 are the same as for projects authorized in water resources development acts. The Corps also has general authority to construct projects without congressional authorization. These authorities are limited to specific program and project dollar amounts.¹⁷

The Water Resources Development Act (WRDA) of 1986

WRDA 1986 was the most comprehensive water resources development legislation enacted by Congress in 50 years, and was the most environmentally sensitive water resources bill developed to that time. The law established an equitable federal/nonfederal partnership in the development of water resources projects, including local financial contributions where appropriate. Prior to WRDA 1986, water resources development acts were signed into law in 1974 and 1976.¹⁸ The last traditional omnibus legislation authorizing the construction of Corps projects was signed into law in 1970.¹⁹ The 1974 and 1976 WRDAs consisted primarily of authorizations for advanced project engineering and design, rather than for construction.²⁰ As a result, a large backlog of proposed water resources projects accumulated between 1970 and 1986, which explains the size and breadth of WRDA 1986.²¹

WRDA 1986 authorized the construction or study of over 270 projects. In addition, the law provided for 33 studies, 72 project modifications, and 72 miscellaneous projects. The total cost of the projects was $ 16.5 billion, of which $ 4.5 billion was required to be paid by nonfederal interests during construction. An additional $ 2.5 billion was required to be repaid to the federal government under the repayment provisions of the law, making the ultimate federal cost $ 9.5 billion and the ultimate nonfederal cost $ 7 billion. The Act included comprehensive methods for determining the federal and nonfederal shares of all types of water resources projects.²² Inclusion of the cost-sharing provisions made enactment of WRDA 1986 possible. Moreover, the cost-sharing provisions may be WRDA 1986's central, continuing contribution to environmental protection. With local interests paying between 25 percent and 100 percent of total project costs, projects are being scaled back and marginal projects are less likely to be supported by local interests.

Important program reforms were also included in WRDA 1986 to make the Corps' program more sensitive and responsive to protecting the nation's environment. For example, § 906 established a comprehensive set of requirements and guidelines for addressing Corps mitigation measures for fish and wildlife impacted by water resource projects. That section generally required that beginning November 17, 1986, and for projects already authorized but not then under construction, mitigation for fish and wildlife losses resulting from the project must occur prior to or concurrent with construction of the project. The requirement assures that mitigation efforts will not become the forgotten stepchild of the project — suffering from lack of support or funding at the conclusion of project construction. Significantly, WRDA 1986 eliminated the burden of proving that benefits from environmental quality measures outweighed [21 ELR 10311] their costs. Section 907 specifically provides that benefits from measures for environmental quality, including improvement of the environment and fish and wildlife enhancement, are deemed to be at least equal to their costs. In addition, § 1135 authorized the Corps to revisit existing projects to determine if changes could be made to improve the environment. Section 924 further required the Corps to establish an Office of Environmental Policy.

WRDA 1986 contained several other major environmental reforms, both of a general nature and on a project-specific basis.²³ The Act clearly set the course for a more environmentally responsive Corps civil works program.

Developments After WRDA 1986

Implementation Efforts

With over 640 provisions, WRDA 1986 posed a formidable challenge to those saddled with its implementation.²⁴ Not surprisingly, the Corps focused its initial efforts on cost sharing, crediting of previous nonfederal contributions, other critical financing provisions, and project formulation.²⁵ Even these seemingly "nonenvironmental" initiatives produced important environmental policies and signals. For example, the Corps' willingness to share various costs for deep draft navigation projects, which have the potential for major environmental disruptions, had important environmental implications.

Also significant were some of the Corps' early efforts to implement § 906's fish and wildlife protection provisions. Although they received little harsh criticism, the Corps' actions in implementing § 906 generated some concern, and several legislative proposals.²⁶ One area, in particular, prompted considerable congressional attention. Section 906(e) requires a federal share of 75 percent of project costs when the benefits are national in character. Moreover, that section calls for a federal share of 100 percent when the project benefits an endangered or threatened species or the enhancement activities will be located on national wildlife refuge lands. In all cases, the federal share of the operation, maintenance, and rehabilitation costs is 75 percent. Various state officials and other interests objected that a 25 percent nonfederal match for operation, maintenance, and rehabilitation costs on federally managed lands was inequitable and probably contrary to congressional intent. Despite such protests, the Corps did not modify its § 906(e) state match requirements and Congress decided not to legislate the requested changes in WRDA 1988.²⁷

The Corps also implemented the provisions in § 924 by establishing an Office on Environmental Protection (OEP) to formulate policies, monitor compliance, and identify initiatives.²⁸ The Corps also established an Environmental Policy Coordinating Committee, composed of the Deputy Director of Civil Works and the Chiefs of Policy, Planning, Dredging, Operations, Programs Engineering, and Construction.²⁹ To date, the OEP and its coordinating committee have not received much attention from outside observers.

The Corps' early efforts to implement § 1135, which authorizes the Corps to modify projects for enhancement of the environment, provide another interesting case study.³⁰ Section 1135 called on the Corps to revisit existing projects to improve their environmental acceptability andto enhance the environment. For example, § 1135 authorized the Corps to modify its operation of a project to improve waterfowl mating areas. Importantly, the generic authority would not send the Corps out to new sites. The Corps could use its § 1135 authority only where existing Corps projects required environmental enhancements. However, for various reasons, implementation of § 1135 got off to a slow start. Funding competition among other new programs and projects, and limitations in the authorization itself, generated some disappointment.³¹ Despite strong interest in the program and a growing list of candidate projects, neither the Corps nor Congress provided funding to implement § 1135 before 1991.³²

Finally, § 1103's Environmental Management Program (EMP) for the upper Mississippi River also received significant attention. A 1986 "general plan" authorized $ 124.6 million for habitat rehabilitation and enhancement, and $ 61.1 million for long-term resource monitoring over a 10-year period.³³ Numerous projects began to take shape after WRDA 1986.³⁴

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Once the Corps organized the massive framework for implementation of WRDA 1986, new project and program needs emerged and Congress and the Administration pressed for another omnibus authorization bill — this time, WRDA 1988.

The Water Resources Development Act (WRDA) of 1988

Although WRDA 1988 did not face a 16-year backlog of unauthorized projects and a demand for major cost-sharing reforms as WRDA 1986 had, WRDA 1988 was important for the Corps' water resources program. More than anything else, WRDA 1988 signaled a successful return to the biennial water project authorization process. In doing so, it allowed for more timely review and approval of projects and more manageable, moderately sized omnibus bills. The Act authorized $ 1.6 billion for 16 new projects, including a $ 59.3 million project for environmental enhancement at estuarine areas in Mississippi and Louisiana.³⁵

While its most important contribution to the Corps' program may have been the re-establishment of the biennial authorization cycle, WRDA 1988 provided the Corps with additional environmental responsibilities. WRDA 1988 contained several project modifications, ecosystem demonstration studies, and miscellaneous provisions to increase the Corps' environmental activities. As noted by the conferees in their statement of managers, WRDA 1988 illustrated that Congress and the Administration remained firmly committed to the successful implementation of the environmental and cost-sharing policies contained in WRDA 1986.³⁶

Section 14 of WRDA 1988 extended the requirements for nonfederal sponsors to comply with federal flood plain management and flood insurance programs. This restricted the uncontrolled development of flood plains prior to construction of projects for hurricane or storm damage reduction, beyond existing requirements. WRDA 1988 also extended the demonstration program in § 1135 of WRDA 1986 from two years to five years, authorizing modifications to existing Corps projects to improve the quality of the environment in the public interest.

WRDA 1988 also provided project-specific environmental improvements. For example, § 40 extended the authority of the Corps to modify the water delivery schedule from the Central and Southern Florida project to the Everglades National Park.³⁷ The intent of the provision is to preserve the Everglades by increasing its supply of water — a step deemed necessary to the survival of this valuable national resource. More comprehensive legislation, the Everglades National Park Protection and Expansion Act,³⁸ followed in 1989. That Act directed permanent modification to the Central and Southern Florida project to improve water deliveries to the Everglades and directed an expansion of the park boundaries.

One of the important environmental provisions in WRDA 1988 was § 45, which authorized a wetlands restoration and creation demonstration project along the Des Plaines River in Illinois. That section authorized $ 2.2 million for the Corps to enhance existing information on wetlands by conducting a research and demonstration project. It signaled one of the first instances in recent times where the Administration and the Corps supported federally funded wetlands restoration and creation projects. More specifically, it served as a model for the national wetlands restoration, enhancement, and creation program that first appeared in H.R. 5370, which was introduced during the 101st Congress and ultimately was incorporated into § 307(d) of WRDA 1990.³⁹ H.R. 5370 also provided precedent for a site-specific wetlands creation demonstration project and accompanying cost-sharing requirements in § 307(c) of WRDA 1990.⁴⁰

Increasing Momentum

The enactment of WRDA 1988 fanned the winds of change in the Corps' environmental responsibilities. The "new breeze blowing"⁴¹ within the Bush Administration led to even more initiatives. Corps directives on matters ranging from habitat protection to hazardous waste management, along with funding and implementation decisions for specific projects and dramatic shifts in wetlands regulatory policies, all indicated a growing interest in environmental issues.⁴²

Individuals also made an impact on the environmental direction of the Corps. Lieutenant General H. J. Hatch, the Chief of Engineers, with strong support from others within the Corps and the Administration, has been a leading force in critical developments during the last several years.⁴³ General Hatch called on the Corps to embrace an "environmental ethic," go "beyond compliance" with environmental laws, elevate environmental aspects to a status equal to other aspects the Corps must weigh, and become devoted to "environmentally sustainable development."⁴⁴ Recent guidance from former Assistant Secretary Robert W. Page, [21 ELR 10313] ASA(CW), also reveals a shift in priorities toward greater emphasis on the environment.⁴⁵ "New approaches" include: implementing budget guidance that gives fish and wildlife restoration the status of a priority project output; placing renewed emphasis on nonstructural solutions to water resource problems; modifying the Central and Southern Florida project to expand and restore the Everglades; participating in the massive effort to clean up hazardous and nuclear waste at military installations; and providing reimbursable assistance to the Environmental Protection Agency (EPA) for wastewater aid to Eastern Europe and for the Comprehensive Environmental Response, Compensation, and Liability Act's (CERCLA's) Superfund program.⁴⁶

Further evidence of the Corps' increasing role in CERCLA and other hazardous waste management and cleanup issues is found in both a 1990 memorandum from the Director of Civil Works⁴⁷ and in Corps funding allocations. The memorandum includes draft guidance on hazardous and toxic waste problems, including substances covered in CERCLA and the Federal Water Pollution Control Act (FWPCA) that are located within or affected by Corps projects. Although nonbinding, the guidance supplements the National Contingency Plan⁴⁸ promulgated by EPA pursuant to CERCLA and the FWPCA. The Corps also plays an integral role in the Superfund program, managing many cleanups on EPA's behalf. In 1990, work by the Corps amounted to $ 200 million in obligations.⁴⁹ The Corps is also investing nearly $ 500 million annually in solving hazardous and toxic waste problems.⁵⁰

The most reliable evidence of the Corps' heightened environmental concern may be its overall civil works budget for 1991. The Corps estimates that in 1991 it will spend about 10 percent, or $ 260 million, of its nonmilitary construction budget on environmental projects.⁵¹ The Corps also requested $ 20 million as part of a $ 60 million, five-year plan to buy 88,000 acres for mitigation of the Tennessee-Tombigbee Waterway project.⁵² The Corps also asked for and received $ 3 million for wetlands research, on which they plan to spend $ 22 million over the next three years.⁵³

However, in terms of media coverage and controversy, the most significant changes may have taken place in the Corps' regulatory program rather than in its civil works activities and budget. Wetlands protection has in recent years become an environmental rallying cry and the FW-PCA § 404 permitting program has, in the eyes of many, become a regulatory buzz saw. Few, including the Corps, are satisfied with the status quo.⁵⁴ The Corps responded with three major wetlands receives in 1989.

First, the Corps adopted the Federal Manual for Identifying and Delineating Jurisdictional Wetlands.⁵⁵ Signed by the Corps, EPA, the Fish and Wildlife Service, and the Soil Conservation Service, the document provides mandatory guidelines on how to define and map wetlands subject to FWPCA § 404 jurisdiction. Its detailed provisions on the three criteria for delineations (soil, vegetation, and hydrology) have generated enormous controversy among state and local officials and the regulated community. Critics claim that the manual dramatically expands the federal government's jurisdiction over wetlands. The agencies have defended the manual as embodying the knowledge and expertise of the agencies and the state of the art in making predictable scientific delineations.

The second initiative, embodied in an interim guidance memorandum from the Director of Civil Works, reinterpreted EPA's FWPCA § 404(b)(1) guidelines — particularly its alternative sites analysis.⁵⁶ Environmentalists and others have taken comfort in the memo's provisions on water dependency, project purpose, and sequencing. One commentator described the memo, which stemmed from the controversy over the proposed Plantation Landing resort in Louisiana, as "one of the most astonishing about-faces in the history of federal environmental law."⁵⁷

The final initiative, which took place in November but did not take effect until February 1990, was the signing of an Army-EPA memorandum of agreement (MOA) on mitigation under FWPCA § 404.⁵⁸ The MOA generated a "firestorm" over its controversial provisions on "no net loss" and "sequencing."⁵⁹ With the Corps and EPA in agreement, critics of the MOA (including public officials, developers, members of the Alaska delegation, and others) sought relief in the White House. Simultaneously, supporters of the MOA pressured the Administration to release the MOA as proposed, without "weakening" the agreement.⁶⁰ A three-month delay, highlighted by intense negotiations within the Administration, resulted in a revised February 1990 MOA.⁶¹ [21 ELR 10314] Throughout the negotiations, environmentalists criticized the White House, not the Corps.⁶²

The Water Resources Development Act (WRDA) of 1990

Many of the seeds of change planted during the development and implementation of WRDA 1986, WRDA 1988, and later policies came to fruition in WRDA 1990. The stage was set for the Corps' omnibus bill to become one of the 101st Congress' more environmentally significant accomplishments.⁶³ It may prove to be as important — from an environmental perspective — as WRDA 1986.⁶⁴

Generally

Situated in the middle of WRDA 1990, between site-specific project authorizations and programmatic and other miscellaneous provisions, is § 306 — the Environmental Protection Mission. It is the symbolic centerpiece of the movement to legislate more environmental missions for the Corps. Perhaps more than any other provision in WRDA 1990, § 306 reflects the mood on Capitol Hill and throughout the country that the Corps should consider its environmental activities as a primary mission, although not at the expense of its traditional functions in navigation and flood control. The "mission" bridges the tension between the old and new directives of the Corps, between civil works and environmental engineers.

Section 306(a) directs the Secretary of the Army to include environmental protection as one of the Corps' primary missions in planning, designing, constructing, operating, and maintaining water resources projects. Section 306(b), however, significantly limits the impact of the environmental protection mandate. That provision stipulates that nothing in the section affects the Corps' existing authorities (such as navigation and flood control), pending Corps permit applications or lawsuits involving permits or water resources projects, or public interest review procedures undertaken in the context of Corps permits. Both provisions are identical to those in H.R. 5370, introduced by Rep. Stangeland (R-Minn.).⁶⁵ The bill was in response to testimony supporting a strengthened environmental protection role for the Corps.⁶⁶ The § 306(a) provisions received minimal attention during debate on the House's omnibus bill⁶⁷ and House and Senate negotiations over the conference report.⁶⁸

This lack of controversy may have been due to the broad savings clause in § 306(b). It was intended to assure those within the Administration and Congress that the newly mandated mission of the Corps would not cause a cessation of its traditional water resources programs and regulatory review procedures.⁶⁹ Instead, it would allow the Corps to give environmental protection a primary role rather than a secondary one. Projects would be required to be developed, implemented, and maintained with environmental protection principles as important as providing benefits for traditional uses, such as navigation and flood control.⁷⁰ A further intent, embodied in § 306(b)'s savings clause, was to prevent litigants and others from using the new mission unfairly to block pending permits or projects.⁷¹

WRDA 1990 contains two other generally applicable provisions that emphasize environmentally sensitive project planning and modification. One of these, § 315, expands upon § 904 of WRDA 1986 to require a broader environmental analysis by the Corps when planning new projects. As a result, the Corps must now consider not just environmental impacts but "preservation and enhancement of the environment" in planning water resources projects. The intent, consistent with the 1990 memorandum from the Chief of Engineers, is to give the Corps a proactive, rather than reactive, role.⁷²

The other general provision, in § 304, makes permanent the five-year program (in § 1135 of WRDA 1986) authorizing modifications to projects for environmentally beneficial reasons. Many have viewed WRDA 1986's § 1135 as a positive development that the Corps and Congress should continue to pursue.⁷³ Section 304 of WRDA 1990 not only removes the obstacle of WRDA 1986's five-year sunset provision (as extended by WRDA 1988), but also provides a $ 15 million annual authorization in lieu of the existing limitation of $ 25 million over the life of the program. If adequate funding accompanies WRDA 1990's changes, the § 1135 program could become a major force in the Corps' new mission.⁷⁴

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Wetlands

Given the explosive debate over wetlands in recent years, WRDA 1990 may be as notable for what it does not contain as for what it does contain. One might think it would address various regulatory issues receiving widespread attention in the tumultuous period after WRDA 1988. And yet, it does not directly try to tackle the problems associated with FWPCA § 404 — a program sure to generate lively debate this session of Congress.⁷⁵ Nor does it enter the fray of farming regulations and Swampbuster.⁷⁶

Procedural and jurisdictional reasons help to explain why. Members on the authorizing committees did not want to put the biennial authorization bill at risk by adding controversial wetlands provisions or interfering with other committee jurisdictions.⁷⁷ They also viewed FWPCA reauthorization and comprehensive wetlands reform legislation, both expected issues for the 102nd Congress, to be more appropriate forums for full debate and resolution of the regulatory issues.⁷⁸

What WRDA 1990 does contain, however, is a wide array of expanded authorities and new directives for wetlands protection within the context of the Corps' water resources program. Although it steers clear of the FWPCA § 404 permit program, WRDA 1990 charts a course for some potentially significant changes, including what may be the first congressionally legislated no net loss of wetlands goal.

Section 307(a) establishes that goal and a "net gain" goal as part of the Corps' water resources development program, and requires the Secretary to develop an action plan to meet the two goals. Both goals are based on recommendations of the National Wetlands Policy Forum and testimony of the National Wetlands Federation.⁷⁹ Section 307(a), like the rest of § 307 and §§ 306 through 310, originated in earlier legislation introduced by Rep. Stangeland. In explaining the intent of the provision agreed to by conferees, Rep. Stangeland emphasized that the wetlands goals applied only to the Corps' water program and not its regulatory program.⁸⁰ That would have to wait for another day, perhaps in the 102nd Congress.

Congress intended the Corps to pursue more than just restoration and mitigation of wetlands — the creation and enhancement of wetlands were expected, as well. For example, § 307(b) authorizes and directs the Corps to conduct a research and demonstration project at Fayetteville, Arkansas, to evaluate the use of "constructed" (i.e. artificial or engineered) wetlands for purposes of meeting the FWPCA's water quality goals and WRDA 1990's wetlands protection goals. WRDA 1990's § 307(d) also authorizes a national demonstration program on wetlands creation and enhancement. In addition, § 409 requires the Secretary of the Army to transmit to Congress "a list which specifically identifies opportunities for enhancing wetlands in connection with construction and operation of water resource projects."⁸¹

It remains to be seen whether the Corps and the Administration will share Congress' enthusiasm for wetlands enhancement or try to focus more on wetlands restoration. To date, various Corps field memoranda and internal policy guidance documents have indicated a willingness, indeed a preference, for restoration and "damage control" initiatives. For example, guidance on implementation of WRDA 1986's § 1135(b) program emphasizes restoration of fish and wildlife resources to their "modern historic conditions,"⁸² but says nothing about enhancement. Interested observers should watch to see whether, over the next several years, the Corps engages in and funds enhancement activities on its own initiative. The extent to which it does will be one measure of how serious it is in providing environmental leadership and a commitment to go "beyond mere compliance."⁸³

Section 307(e) establishes a novel demonstration program within the Corps to train and certify individuals as wetlands delineators. The Secretary is required to report to Congress periodically on the status of the program and on any recommendations to improve the content and implementation of the controversial Federal Manual for Identifying and Delineating Jurisdictional Wetlands. However, that provision does not contain any funding limits, schedules, or sunset provisions. Perhaps more than any other provision in WRDA 1990, § 307(e) was meant to address — in as noncontroversial a manner as possible — the volatile issues surrounding the Corps' FWPCA § 404 wetlands permitting program, particularly the issue of defining and identifying jurisdictional wetlands subject to Corps regulation.⁸⁴ The intent behind the certification and training program was to [21 ELR 10316] develop less adversarial, more helpful approaches to determining exactly what areas would fall within the geographic scope of the § 404 permitting program.⁸⁵ The demonstration program offered a viable approach to help ease the controversy over the definition of wetlands and the delineation manual without actually changing the definition.⁸⁶ An increase in public knowledge concerning what is and is not a regulated wetland would help alleviate the confusion and uncertainty of the regulated community. The ultimate decision of what is or is not a regulated wetland would remain with the government.

Mitigation banking proved to be one of the more controversial aspects of House and Senate conference negotiations over the House bill's wetlands provisions. Sen. Chafee (R-R.I.) objected to the mitigation bank national demonstration program provided for in § 113(d) of the House bill, expressing concern about timing, implementation, impacts on "sequencing" requirements, and a national goal of no net loss of wetlands.⁸⁷ He raised similar concerns over the site-specific mitigation banking provisions in § 101(18) relating to the Passaic River.⁸⁸ Apparently, Sen. Chafee, like several environmental groups, viewed mitigation banking as a potential loophole for permit applicants to circumvent the § 404(b)(1) guidelines and the mitigation MOA's sequencing requirements. Many argued that these could become empty promises if applicants could proceed with various projects by merely promising future off-site compensation.⁸⁹ According to staff, Sen. Chafee felt a national program was premature at this juncture, given the ongoing debate over wetlands creation (is it an art or a science?) and the feasibility and implementation of mitigation banking systems.⁹⁰ Sen. Chafee and others wanted to defer this issue until the 102nd Congress when FWPCA reauthorization and § 404 reforms were expected to receive further attention.⁹¹

Conferees agreed to significantly revise the national demonstration program, but leave unchanged the site-specific provisions for the New York and New Jersey Passaic River Main Stem.⁹² As explained in the statement of managers, conferees deleted all references to mitigation banking in § 307(d), and redirected the focus of the demonstration program to wetlands restoration and enhancement.⁹³ The purpose of the new program is to demonstrate wetlands restoration and enhancement in order to achieve the interim goal of no net loss and the long-term goal of net gain.⁹⁴ Conferees left the door open for additional debate and pursuit of national mitigation banking programs.⁹⁵

Conferees also left out some of the more significant wetlands provisions, §§ 14 through 18 originally in the House-passed bill, relating to coastal wetlands — particularly in Louisiana — with an understanding that the provisions would be moved into separate legislation by the end of the Congress.⁹⁶ That legislation, the Coastal Wetlands Planning, Protection, and Restoration Act (CWPPRA), was signed into law by President Bush just one day after signing the Corps' omnibus bill.⁹⁷ As enacted, § 303 of the CWPPRA directs the Secretary to convene a task force and pursue various coastal wetlands restoration projects in Louisiana. Section 305 authorizes national coastal wetlands conservation grants. Section 307 provides the Secretary with additional authority to carry out coastal wetlands projects and requires the Secretary to give such projects "equal consideration" with projects relating to irrigation, navigation, or flood control.

Taken together, these Louisiana-specific and nationwide authorizing and funding provisions represent the most significant coastal wetlands protection legislation enacted by the 101st Congress. Given such mandates, money, and congressional support, the Corps' presence in coastal wetlands protection should continue for years to come. The approach embodied in the CWPPRA may become a model for subsequent legislation addressing coastal and inland wetlands protection, restoration, and creation.⁹⁸

Flood Plains, Shorelines, and Reservoirs

Besides wetlands protection, flood plain management is one of WRDA 1990's more significant features. Section 308 contains mandates and prohibitions on the Corps' involvement in future flood control projects for new developments in 100-year flood plains (or 10-year flood plains in some cases). The intent of § 308 is to prevent unwise flood plain development by communities and unjustified investments and subsidies by the federal government in the form of flood control projects.⁹⁹ Section 308(a) seeks to achieve these goals by significantly modifying the Corps' benefit-cost analysis procedures. As a general rule, the Secretary is prohibited from including in the benefits base (for justifying future federal flood damage reduction projects) new or substantially improved structures built in the 100-year flood plain after July 1, 1991, and structures that become located in the 100-year flood plain by virtue of constrictions placed in the flood plain after July 1, 1991.

In order to retain support for § 308(a)'s broad prohibition, however, House members included several significant exceptions and, perhaps most important, a delayed effective date. One exception, championed by Rep. Emerson (R-Mo.),¹⁰⁰ narrows the scope of the prohibition by reducing the 100-year flood plain to 10 years for counties "substantially located within the 100-year flood plain" after July 1, 1991. Section 308(b) provides that such counties are composed of lands of which 50 percent or more are located in the 100-year flood plain. In addition, to be eligible for the less restrictive prohibition, the Secretary must determine [21 ELR 10317] that application of the general rule to such a county would "unreasonably restrain continued economic development or unreasonably limit the availability of needed flood control measures."¹⁰¹

Another exception narrows the type of new or substantially improved structure built in the flood plain that would trigger the revised benefit-cost analysis procedures. Under § 308(a)(1), the term "new or substantially improved structure" does not include "a structure necessary for conducting a water-dependent activity." This exception, like the exception for water-dependent activities contained in EPA's FWPCA § 404(b)(1) guidelines (relating to § 404 permits and alternative site analyses), provides special treatment for facilities such as wharves, piers, boat docks, and similar structures.

Section 308(e), which was crucial to the passage of the entire section,¹⁰² delays the effective date of the general prohibition. That provision prevents the benefit-cost analysis rule from applying to any project (or its separable element) if the Chief of Engineers has forwarded his final report on the project to the Secretary before either six months after the Secretary has issued implementing regulations under § 308(d) or July 1, 1993, whichever is earlier. The delayed effective date, amounting to at least one year and probably more, was intended to provide some "breathing room" and time for further analysis.¹⁰³

Section 308(c) provides an additional signal to communities to avoid unwise flood plain development. That provision directs the Secretary to report to Congress:

On the feasibility and advisability of increasing the nonfederal share of costs for new projects in areas where new or substantially improved structures and other constrictions are built or placed in the 100-year flood plain or the 10-year flood plain, as the case may be, after the initial date of the affected governmental unit's entry into the regular program of the national flood insurance program of the National Flood Insurance Act of 1968.

Section 308(c) of WRDA 1990, consistent with themes throughout WRDA 1986, is an attempt to direct the Corps (and ultimately communities) to pursue cost-sharing incentives to prevent unwise flood plain management. The policy behind the provision is that communities should pay more when they choose to build in the flood plain.¹⁰⁴ This disincentive will perhaps reduce the cycle of providing federal flood protection following unwise development, which tends to encourage further federal flood protection and development.

Section 309, relating to shoreline protection, directs the Secretary to study and report to Congress on reducing federal participation in beach stabilization and renourishment projects involving federal funds in states that have not established, or committed to establish, certain beach front management programs. According to § 309, each state program must include minimum erosion set-back requirements for new structures, other restrictions on hazardous or environmentally damaging development, and assurances for public access to beaches stabilized or renourished with federal funds. The intent of the section is to promote more fiscally and environmentally responsible beach-front development and management.¹⁰⁵ Initially, the proposal contained an actual prohibition on federal participation in shoreline projects in states with "deficient" beach management programs. However, House members, and eventually House and Senate conferees, found the approach too controversial and opted instead for the study-only approach now embodied in § 309.

Section 310(a), relating to reservoir management, directs the Secretary to establish a single technical advisory committee to provide the Secretary and the Corps with recommendations for monitoring and research at the Corps' major reservoirs. The advisory committee, composed primarily of members from the academic and scientific communities, is intended to help the Corps make decisions at reservoirs based on environmental and scientific grounds, rather than on political grounds.¹⁰⁶ This provision was also viewed as an indirect way to help address ongoing controversies regarding reservoir management and involving disputes among upstream, downstream, hydropower, water supply, commercial navigation, fishing, recreation, and wildlife conservation interests.¹⁰⁷

Section 310(b) further directs the Secretary to ensure that the Corps provides "significant opportunities for public participation" (such as hearings) when the Corps develops or revises reservoir operating manuals. The provision also requires the issuance of regulations and a report to Congress. The intent was to help ameliorate and prevent animosity and mistrust of the Corps for past and future decisions at various reservoirs.¹⁰⁸

Section 311, complementing the provisions in § 310, requires the Secretary to study and compare the authorized project purposes at various Corps reservoirs with the purposes for which the reservoirs are currently being operated. The results are then to be reported to Congress. Like § 310, § 311's study and report were intended to help address ongoing disputes involving changes in reservoir operations.¹⁰⁹ Conferees opted for the less controversial approach in the House bill and rejected the Senate bill's approach of requiring, in certain instances, congressional review of Corps reservoir operation changes.¹¹⁰

Sections 310 and 311, along with the overall issue of reservoir management, have the potential to significantly impact the Corps' method of doing business and the way the Corps incorporates the increasing public demand for [21 ELR 10318] recreation and fish and wildlife habitat protection. The Corps' implementation of §§ 310 and 311, and its reservoir management decisions, which are bound to pit upstream, downstream, and other interests against one another, will provide some of the clearest signals of the Corps' future directions and priorities.¹¹¹

Environmental Dredging and Contaminated Sediments

The nation has recently discovered the increasing presence and risk posed by in-place contaminated sediments.¹¹² While these sediments rarely pose a direct threat to human health, primarily because of their submerged location, they can greatly affect the quality of the surrounding water and ecosystem. Congress partially responded to this pollution threat in the Superfund Amendments and Reauthorization Act of 1986¹¹³ by requiring that the Hazard Ranking System be revised to reflect damage to natural resources that may affect the human food chain.¹¹⁴ This revision will result in certain contaminated sediment sites being eligible for cleanup under the Superfund program. However, Rep. Nowak (D-N.Y.), Chairman of the Subcommittee on Water Resources, recognized that the Corps would need additional authority to address these contaminated sediments beyond the limited number of sites to be addressed by Superfund.¹¹⁵ Therefore, during development of WRDA 1990, a new general authority was given to the Corps to remove contaminated sediments for environmental improvement, not just for the purpose of navigation.

Section 312 of WRDA 1990 authorizes the Secretary to remove contaminated sediments located outside the boundaries of a navigation channel, if necessary to meet the requirements of the FWPCA. This authority may be exercised as part of the Corps' operation and maintenance responsibilities, and must be exercised in consultation with EPA.¹¹⁶ The intent of the consultation requirement is to help assure that the most environmentally appropriate steps are taken.

Even in instances where it is not necessary to meet requirements of the FWPCA, § 312 authorizes the Secretary to participate in contaminated sediment cleanups. WRDA 1990 authorizes this work to be performed on a matching federal/nonfederal basis pursuant to a plan developed by federal, state, and local interests desiring the work. While limited to a five-year demonstration period and a $ 10 million annual cap, this authority can be an effective new tool in the fight to eliminate pollution. It is also a definite attempt to expand the role of the Corps beyond its traditional focus on navigation.¹¹⁷

Miscellaneous Provisions

WRDA 1990 contains many site-specific, environmentally oriented projects. Water project authorization bills, like their accompanying appropriations bills, have become popular legislative vehicles for environmental protection, restoration, and enhancement. Site-specific provisions call on the Corps to go beyond its traditional activities involving flood control and navigation.

The 1990 Act, for example, has several provisions emphasizing water quality. Section 410 requires the establishment of a comprehensive management conference for Onondaga Lake, New York.¹¹⁸ Section 403 also includes directives for the cleanup of other lakes, and §§ 106(w) and 421 provide for the control of nonpoint source pollution and combined sewer overflows in New York. Other provisions address water quality in Minnesota (§§ 109 and 116) and Maryland (§ 116(n)).

WRDA 1990 also increases the Corps' responsibilities for contaminated sediment cleanup, dredged material disposal, and hazardous waste management. Section 401 authorizes the Corps to provide technical assistance for remedial action plans to clean up toxic hotspots in the Great Lakes. The bill also includes important restrictions on wood burning (§ 102(v))¹¹⁹ and dredged material disposal (§ 412) along the New York/New Jersey coast. Section 117 directs the Corps to demonstrate the feasibility of transporting wastewater and other contaminated pollutants from a land[21 ELR 10319] fill to a wastewater treatment facility in Cranston, Rhode Island.

Overall, the bill signals a growing trend for the Corps to become involved in activities more traditionally expected of EPA and involving FWPCA and CERCLA authorities. This overlap may be due, in part, to congressional committee jurisdictions, in addition to changing public attitudes and expectations of the Corps. Whatever the cause, the result is clear: WRDA legislation is increasingly including provisions to address issues contemplated by the FWPCA, CERCLA, and other environmental protection statutes.

Habitat restoration and protection projects are also popular in WRDA 1990. Section 405 extends the Environmental Management Program (EMP) of the Upper Mississippi River Management Act of 1986 for an additional five years. The EMP, created by § 1103 of WRDA 1986, was originally authorized for 10 years. In effect, this means $ 97.5 million in new authorization for the EMP, a program that has received widespread praise and support over the years.

WRDA 1990 § 110(18), the flood control project for the Passaic River Main Stem in New Jersey and New York, merits separate discussion, not only because of its size, estimated at $ 1.2 billion, but also because of the environmental provisions associated with it.¹²⁰ The project consists mainly of a large tunnel to be constructed to carry flood waters below ground to Newark Bay. Such a construction project is likely to have environmental impacts, and the authorization seeks to preserve the maximum amount of open space¹²¹ by creating a wetlands bank to meet both the mitigation needs of the future project and the future needs of the community.

New Jersey is required to establish a Passaic River Central Basin Wetlands Bank, which will be located within the Passaic River Central Basin. The wetlands bank will consist of lands in or adjacent to the area, or that provide drainage for runoff and streamflows, including buffer areas. The intent is that by preserving open space in the project area, mitigation requirements will be met, valuable recreation opportunities will be preserved, and the wetlands bank will eliminate the need for future development of sensitive wetlands areas.

Two additional site-specific provisions deserve special mention — not only for their environmental significance but for the critical roles they played in the development and ultimate passage of WRDA 1990. The fate of the bill hinged on the ability of conferees, in the final days of the 101st Congress, to negotiate differences over § 413 (Albemarle Sound-Roanoke River Basin in North Carolina and Virginia) and § 116(h) (Kissimmee River in Florida).

Section 413 placed the North Carolina and Virginia delegations at odds and the Corps in the middle of the controversy. Originating in the House bill under the sponsorship of North Carolina members,¹²² § 413 would have prohibited further construction of a pipeline pursuant to a permit issued by the Corps for activities within the waters of the United States. The pipeline is being constructed to withdraw water from Lake Gaston in North Carolina and Virginia for delivery to Virginia Beach, Virginia, to help meet that area's water supply needs. The environmental impact of the proposed pipeline, particularly on striped bass, was a central concern of the North Carolina delegation.¹²³

Once in conference, the provision generated a classic water war between the two state delegations. It also highlighted the frequent differences between the Corps, as permit issuer, and the resource agencies, as permit reviewers. Both the Fish and Wildlife Service and the National Marine Fisheries Service recommended that construction of the pipeline await completion of an environmental impact statement because of potential impacts on striped bass. However, the Corps and the project proponent (Virginia Beach) believed they had addressed such concerns adequately.¹²⁴ The city also wanted to avoid further delays in construction of the pipeline.

After many private meetings, several of which appeared to result in deadlock, conferees finally reached a compromise.¹²⁵ The compromise gave both sides enough to claim victory and, most important for all of the other conferees, it allowed the WRDA 1990 conference report to reach the Senate floor without an objection or a filibuster. The thrust of the agreement was to remove the statutory prohibition on construction but to impose a greater risk on Virginia Beach's decision to proceed with the project. It did this by strengthening the Corps' obligations to review the environmental study and, if necessary, to modify or cancel the permit notwithstanding any construction already undertaken.¹²⁶ The resulting provision in § 413 requires the Secretary, no later than January 1, 1992, to review the striped bass report, determine the pipeline's impact in light of the report, and take all appropriate action. This provided for permit modification, even though construction had already begun.

Section 114(h) also generated considerable debate and negotiation. It directs the Secretary to conduct a feasibility study, transmit a report, and perform all necessary pre-construction work on a comprehensive plan for the environmental restoration of the Kissimmee River. The original project has a long history of controversy.¹²⁷ In recent years, a consensus seemed to emerge that the Corps and others should try to return the river to its original, meandering [21 ELR 10320] path, in effect, reversing the channelization that occurred as a result of the 1948 congressional authorization.¹²⁸ The House's version of WRDA 1990 sought to do that by following the traditional approach of authorizing a study and report; subsequent bills could then authorize construction work based on the analyses. The Senate bill, however, authorized construction for the project.¹²⁹

Ultimately, the conferees agreed to include a modified version of the House's study provision, calling for an expedited report to Congress and authorizing post-study, pre-construction engineering and design. However, these changes, made to increase the Corps' attention to the project, were not enough to satisfy members of the Florida delegation. Senator Graham (D-Fla.) and others introduced separate legislation on the last day of the session to authorize construction of the project.¹³⁰ Their bill, the Kissimmee River Environmental Restoration Act,¹³¹ expanded on the provisions found in the earlier Senate-passed Corps omnibus bill.¹³² Their intent was to move the legislation through Congress and to the President simultaneously with the movement of the conference report on S. 2740.¹³³ Senators introduced and passed S. 3262 on the final day and sent the measure to the House.¹³⁴

Members of the House Public Works and Transportation Committee were concerned about moving the measure simultaneously with the conference report. They felt that the Administration might view the procedure as reneging on agreements reached during the WRDA 1990 conference; they feared that this view could, directly or indirectly, result in a presidential veto of S. 2740.¹³⁵ They also thought that the approach of S. 2740 — expedited study and advanced engineering and design — could ultimately be as helpful as S. 3262's authorization of construction conditioned upon the successful completion of a Corps' study.¹³⁶

As a result, after lengthy discussions with the Senate and House Florida delegations, the House Public Works and Transportation Committee decided not to risk moving the bill.¹³⁷ However, during the final hour of the 101st Congress, Reps. Roe (D-N.J.) and Stangeland engaged in a colloquy on the House floor that provided important directives to the Corps and assured the Florida delegation of the committee's commitment to the project.¹³⁸ The colloquy includes a statement that the committee "looks forward to the prompt completion of this study and authorizing this project in accordance with the final report of the Chief of Engineers in the next Congress."¹³⁹

The Kissimmee River restoration program, the final issue to be resolved in conference, is another clear example of the changing directions and priorities within both the Corps and embodied in WRDA 1990. The legislative history of WRDA 1990 indicates that plenty of challenges lie ahead both within the Corps and Congress. Its progress or delay will be a good indication of the overall commitment to making the Corps the nation's "premier environmental engineers."¹⁴⁰ As Sen. Mack (R-Fla.) optimistically noted upon introduction of S. 3262, "This will clearly be the flagship project in the Army Corps of Engineers new mission — environmental protection."¹⁴¹ Alternatively, if not pursued and funded aggressively, it could lead to an even stronger backlash against the Corps, prodding congressional and environmental groups to push harder for institutional change.

Conclusion

The Corps' activities and missions continue to evolve, responding to changing public attitudes and fiscal priorities. An environmental ethic is gradually taking root. It may not be of "glasnost" proportion, as described by one commentator,¹⁴² but it does represent a major positive development.

At the administrative level, numerous regulations, policies, memoranda, and public communications indicate a "greener" Corps. The so-called "dam it, ditch it, dredge it" mentality is evolving into an "environmentally sustainable development" attitude within the Corps.¹⁴³ At the congressional level, legislators are increasingly looking to the Corps to protect or clean up the environment. Recent water resources development acts direct the Corps to implement and expand on existing environmental duties and, in some instances, establish new missions.

WRDA 1986 signaled a new direction, putting in place an impressive array of ambitious environmental initiatives and cost-sharing reforms. Congress and the American public, however, were not content to let the Corps proceed entirely at its own pace or to merely retain existing authorities in WRDA 1986 or WRDA 1988. Instead, they demanded — and the President delivered — WRDA 1990. This newest omnibus authorization bill not only keeps the momentum going — it substantially quickens the pace.

Highlights of WRDA 1990 include a statutorily recognized environmental protection mission, strengthened protection initiatives, restoration and creation authorities for wetlands, new "environmental dredging" authorities, and various site-specific projects for inland, coastal, and ocean water quality protection. In WRDA 1990, Congress injected new life into some of the Corps' old standbys, such as fish and wildlife mitigation, habitat restoration, and flood plain and shoreline protection and management. WRDA 1990, in combination with other laws and agency initiatives, provides potential for the Corps to become the federal government's premier environmental engineers. The necessary authorities are now amply provided. However, it remains to be seen whether the actual commitment and funding needed to get the job done will continue over the coming [21 ELR 10321] years as Earth Day 1990 threatens to become less of a rallying cry and more of a memory.

As the saying goes, "the proof is in the pudding." In this case, the pudding is far from finished. The Corps still faces a massive array of challenges, including polluted water, contaminated sediments, diminished wetlands, and other degraded habitats. To prove its commitment to a more environmentally responsive Corps, the nation will need to both continue the direction established in the WRDA laws and increase funding in subsequent appropriations. The Corps has historically been ready and willing to receive its marching orders. The question, though, is not whether the Corps will follow its orders but whether Congress and the public will continue to give environmentally based orders. If they do, the Corps may well find itself marching into an unprecedented era of environmental activism.

1. Laws dating back to 1824 (an appropriations act, 4 Stat. 32) when the Corps first got involved in navigation, and 1917 (the Flood Control Act of 1917, 39 Stat. 948), a similar milestone for Corps flood control projects, dealt indirectly with environmental protection issues. Regulatory laws, such as the Rivers and Harbors Appropriations Act of 1899 (RHA) (33 U.S.C. § 421, 36 Stat. 593), brought the Corps more directly into the environmental arena. Section 13 of the RHA, known as the Refuse Act and predecessor to § 402 of the Federal Water Pollution Control Act (FWPCA) (33 U.S.C. § 1251, ELR STAT. FW-PCA 001), gave the Corps primary responsibility for regulating the discharge or deposit of wastes into the navigable waters of the United States.

Section 10 of the RHA, still highly relevant today, charged the Corps with regulating the placement of structures or materials (such as wharves or fill material) into navigable waters and the alteration of such waters, so as to prevent obstructions to navigation. In many respects, § 10 was the predecessor of and model for the current dredge and fill permit program in § 404 of the FWPCA. The Fish and Wildlife Coordination Act of 1958 (16 U.S.C. § 661, 72 Stat. 563) also required the Corps to consult with and consider the views of federal resource agencies and to give equal consideration to wildlife conservation in conducting Corps water resources development programs.

These authorities, enacted prior to such landmark environmental laws as the National Environmental Policy Act (NEPA), the FWPCA, and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), remain in effect today, and play a role in Corps activities. For a detailed listing of the Corps' environmental policies, objectives, and guidelines for their civil works program, see Engineer Pamphlet (EP) No. 1165-2-501 (December 18, 1988) (document on file with authors and obtainable through Corps offices). Although somewhat dated, the EP contains a useful summary of Corps missions, major environmental statutes, executive orders and guidelines, and regulations most applicable to the Corps' program. See also 33 C.F.R. § 320 (1990) for a comparable listing and a more recent description of the Corps' regulatory policies.

2. See, e.g., Houck, More Net Loss of Wetlands: The Army-EPA Memorandum of Agreement on Mitigation Under the § 404 Program, 20 ELR 10212 (June 1990). Professor Houck is skeptical of the Corps' environmental efforts, particularly regarding wetlands regulation, where "protection-minded EPA" and the "development-minded Corps" battle one another constantly. Id. See infra note 54.

3. April 22, 1990, marked the 20th anniversary of Earth Day, and March 24, 1989, was the day the Exxon Valdez tanker spilled approximately eleven million gallons of crude oil into Prince William Sound, Alaska. Both events helped to forge a growing national sentiment of environmental protection.

4. See infra notes 41-62 and accompanying text.

5. Pub. L. No. 99-662, 100 Stat. 4082 (1986).

6. Pub. L. No. 100-676, 102 Stat. 4012 (1988).

7. Pub. L. No. 101-640, 104 Stat. 4604 (1990).

8. 136 CONG. REC. H12329-30 (daily ed. October 27, 1990) (statement of Rep. Stangeland regarding the conference report on S. 2740, WRDA 1990).

9. See Rivers and Harbors Act of 1913, ch. 144, § 4, 37 Stat. 826 (1913) (codified as amended at 33 U.S.C. § 542 (1982)). Although this committee resolution process of authorizing Corps studies may involve constitutional Presentment Clause issues, as enunciated in Immigration and Naturalization Service v. Chadha 462 U.S. 919, 13 ELR 20663 (1983), the process has not been challenged and may be cured by congressional appropriation of money to conduct the study.

10. See Water Resources Development Act, § 105, 100 Stat. 4088 (1986) (codified as amended at 33 U.S.C. § 2215 (1988)).

11. Id. at § 710, 100 Stat. 4160 (1986) (codified as amended at 33 U.S.C. § 2264 (1988)).

12. For example, WRDA 1990 authorized 26 projects in accordance with the Chief of Engineers's report, of which fewer than half received approval from the Secretary of the Army or the OMB.

13. The usual two-year cycle was broken in the 1970s. Because Congress and the Administration disagreed over the direction of the federal water resources program and the appropriate non-federal contribution to water projects, scaled-down bills were enacted in 1974 (the Water Resources Development Act of 1974, Pub. L. No. 93-251, 88 Stat. 12 (1974)), and 1976 (the Water Resources Development Act of 1976, Pub. L. No. 94-587, 90 Stat. 2917 (1976)). Ten years passed before WRDA 1986. The two-year cycle has remained unbroken since that time.

14. This process, which involves appropriating a lump sum in the law with line item allocations in the report, gives the Corps necessary flexibility. Although items listed in the committee report are not legally binding, the Corps generally tries to follow the report amounts. This prevents the uncertainties of construction (inclement weather, material shortages, labor shortages, etc.) from hampering the program and provides for spending adjustments. While certain spending amounts for specific projects are occasionally included in the law, Congress generally reserves its use of explicit spending directives for when the Administration differs with Congress on the policy behind the spending and would not spend the money in the absence of specific congressional direction.

15. See Water Resources Development Act of 1986, § 1001, 33 U.S.C. 579a (1986).

16. Pub. L. No. 89-298, § 201, 79 Stat. 1073, 42 U.S.C. § 1962d-5 (1965).

17. See Flood Control Act of 1946, § 14, 33 U.S.C. § 701r (1948), relating to streambank and shoreline protection for public facilities; Flood Control Act of 1948, § 205, 33 U.S.C. § 701s (1948), relating to flood control projects; Rivers and Harbors Act of 1960, § 107, 33 U.S.C. § 577 (1960), relating to navigation projects; Rivers and Harbors Act of 1962, § 103, 33 U.S.C. § 426g (1962), relating to beach erosion control; and Rivers and Harbors Act of 1968, § 111, 33 U.S.C. § 426i (1968), relating to mitigation of shoreline damage due to federal navigation projects.

18. See supra note 13.

19. Rivers and Harbors Act of 1970, Pub. L. No. 91-611, 84 Stat. 1818 (1970).

20. See supra note 13.

21. For a discussion of the background to WRDA 1986 and an explanation of Congress' inability to enact water resources legislation, see Roe, A New Direction in Water Resources Development, 17 ELR 10144 (May 1987).

22. See Water Resources Development Act of 1986, title I, 33 U.S.C. §§ 2211-19 (1986).

23. A good example of project-specific detail is the authorization of the Mobile Harbor project in Alabama. Because of concerns expressed about the disposal of dredged material in the Brookley disposal area in Mobile Bay, the authorization provides that for reasons of environmental quality, the dredged material from the project is to be disposed of in open water in the Gulf of Mexico. This provision was not included in the project as recommended in the report of the Chief of Engineers. Environmental protections such as this and those in scores of other project authorizations were included to modify the recommended plans and assure a greater sensitivity to the environmental impacts of water resources projects. See also supra note 20.

24. Corps and ASA(CW) officials listed 640 units (such as separate projects, provisions, and other components) needing specific implementation policies, guidance or regulations. The effort included creation of various committees and task forces addressing mitigation and other environmental matters. Interview with John S. Doyle, Jr., Chief of Staff, Committee on Public Works and Transportation, U.S. House of Representatives (Jan. 15, 1991). Mr. Doyle served as Principal Deputy ASA(CW) and, for a limited time, as Acting ASA(CW) from December 1986 to February 1990.

25. Id.

26. See, e.g., H.R. 3649, 100th Cong., 1st Sess. (1987). Rep. Gunderson introduced the bill.

27. The House-passed Corps bill (H.R. 5247), however, amended § 906(c) of WRDA 1986 to clarify that nonfederal interests would not need to contribute 25 percent of maintenance costs for project lands owned by federal interests. H.R. REP. No. 913, 100th Cong., 2d Sess. (1988). Based largely on the Administration's objections, the conferees to WRDA 1988 agreed not to include the House provision.

28. Letter from Acting ASA(CW) John S. Doyle, Jr., to Sen. Quentin Burdick, Chairman of the Senate Environment and Public Works Committee (Dec. 7, 1987) (discussing the establishment of the Office of Environmental Protection and the Environmental Policy Coordinating Committee) (document on file with authors).

29. Id.

30. See Memorandum CECW-PS, July 31, 1987. For more recent guidance, see September 1989 and April 1990 updates. The April 1990 memorandum CECW-P/CECW-O supersedes previous implementation guidance and includes new criteria for project selection.

31. See, e.g., S. REP. NO. 333, 101st Cong., 2d Sess. (1990).

32. The Corps, however, plans to spend $ 2.2 million in federal funds in 1991 to implement 18 projects. Id. Unpublished documents regarding Corps budget requests and appropriations are on file with authors.

33. Corps Fact Sheet on Upper Mississippi River System EMP, CECW-PC (May 1990) (document on file with authors).

34. Id.

35. Pub. L. No. 100-676, § 3(a)(8), 102 Stat. 4014 (1988).

36. H.R. REP. No. 1098, 100th Cong., 2d Sess., at 39 (1988). See also Hughes, Water Resources Development Act: Implementing the Omnibus Project Reforms, Congressional Research Service, Library of Congress, at 4 (Nov. 29, 1990).

37. Congress authorized an experimental water delivery program for the Everglades in the Supplemental Appropriations Act of 1984, Pub. L. No. 98-181, 97 Stat. 1292-93 (1983). Based on the hydrologic and ecologic data of that experimental program, the Corps developed a general Design Memorandum for modifications to improve water deliveries.

38. Pub. L. No. 101-229, 103 Stat. 1946 (1989).

39. 136 CONG. REC. H5626, E2490 (daily ed. July 25, 1990) (statement of Rep. Stangeland upon introducing H.R. 5370, the Corps of Engineers Environmental Protection Act of 1990). Section 3(b) of the bill included several of the general provisions in the Des Plaines authorization.

40. Id. The demonstration project is for Mud Creek, Arkansas. The provision, along with its predecessor in WRDA 1988, was used as a model to evaluate and demonstrate nationally the use of constructed wetlands for wastewater treatment, and was contained in H.R. 404, the Wetlands Protection and Regulatory Reform Act of 1991, introduced by Rep. Hammerschmidt (R-Ark.). 137 CONG. REC. H77, E55 (daily ed. Jan. 3, 1991) (statement of Rep. Hammerschmidt upon introducing H.R. 404).

41. Inaugural Address of President George Bush, 25 WEEKLY COMP. PRES. DOC. 99-102 (Jan. 20, 1989).

42. Vickery, Corps of Engineers Is on a New Mission, Star Ledger (Newark, N.J.), Nov. 27, 1990, at 78. Vickery observes that this is the first time the Corps has even calculated its environmental spending.

43. Id.

44. Memorandum from Lieutenant General H. J. Hatch, Chief of Engineers, Strategic Direction for Environmental Engineering, Feb. 14, 1990.

45. Memorandum from Assistant Secretary Robert W. Page, ASA(CW), on Statement of New Environmental Approaches, June 25, 1990.

46. Id.

47. Memorandum from Major General Patrick J. Kelly, Director of Civil Works, Draft Guidance on Hazardous and Toxic Wastes (HTW) for Civil Works Studies and Projects, Oct. 1, 1990.

48. 40 C.F.R. pt. 300 (1990).

49. See supra note 42.

50. See supra note 44.

51. See supra note 42; see generally Hughes, Water Resources Development Act: Implementing the Omnibus Project Reforms, Congressional Research Service, Library of Congress (Nov. 29, 1990).

52. Vickery, supra note 42.

53. Id.

54. See generally Tripp & Herz, Wetland Preservation and Restoration: Changing Federal Priorities, 7 VA. J. NAT. RESOURCES L. 221 (1988). The authors describe the Corps' primary mission — the construction of civil works projects — and the Corps' difficulties in adjusting to environmental considerations: "The Corps' uneasiness with an environmental mandate has surfaced on many occasions since 1972. It is particularly well illustrated by the Corps' receptivity to the Task Force on Regulatory Relief headed by Vice President Bush." Id. at 229.

55. MOA Between the U.S. Army Corps of Engineersand the U.S. EPA Concerning Wetlands Mitigation Required Under § 404 of the CWA, 101st Cong., 2d Sess. (1990) (before Subcommittee on Investigations and Oversight of the Committee on Public Works and Transportation, U.S. House of Representatives).

56. Memorandum from Patrick J. Kelly, Director of Civil Works, to Commander, New Orleans Division, "Permit Elevation, Plantation Landings Resort, Inc." (Apr. 21, 1989) (document on file with authors.)

57. Houck, Hard Choices: The Analysis of Alternatives Under § 404 of the Clean Water Act and Similar Environmental Laws, 60 U. COLO. L. REV. 773, 795 (1989).

58. See supra note 55.

59. See supra note 2, at 20 ELR 10212.

60. See, e.g., letter from Rep. Nowak to President Bush, Dec. 1989, supporting the original MOA of Nov. 14, 1989 (document on file with authors).

61. See supra note 2, at 20 ELR 10212.

62. See generally Administration Delays Key Wetlands Protection Plans, Wash. Post, Dec. 15, 1989, at A19 and Wetlands Pact Delayed Again, Wash. Post, Jan. 13, 1990, at A1.

63. Certainly, the Clean Air Act Amendments of 1990 (Pub. L. No. 101-549, Nov. 15, 1990, 104 Stat. 2399) (codified at 42 U.S.C. §§ 7401-7671(q) [ELR STAT. CAA 001 et seq.] and the Oil Pollution Act of 1990 (Pub. L. No. 101-360, Aug. 18, 1990, 104 Stat. 484) (codified at 33 U.S.C. § 2701 et seq.) [ELR STAT. OIL POLL. 001 et seq.] dwarf WRDA 1990 and other bills in terms of environmental significance. Even so, many observers noted the importance of the omnibus bill's environmental provisions. President Bush focused on some of WRDA 1990's environmental components as he signed the measure into law: "In addition to authorizing worthwhile water resources projects, the legislation includes a number of provisions that protect and restore this Nation's environment, which I wholeheartedly support." Statement on Signing the Water Resources Development Act of 1990, 26 WEEKLY COMP. PRES. DOC. 1934-35 (Nov. 28, 1990).

64. WRDA 1990 authorized 26 new projects, 30 modifications, a total of $ 2.5 billion in federal and non-federal funds, and contained 69 sections. In contrast, WRDA 1986 authorized 275 new projects, 71 modifications, over $ 16 billion in federal and non-federal funds, and contained 640 separate provisions requiring implementation.

65. The Corps of Engineers Environmental Protection Act of 1990, 101st Cong., 2d Sess. (1990).

66. Rep. Stangeland's bill incorporated many of the concepts advocated by the National Wildlife Federation. See Hearings on Corps' Water Resources Projects (testimony of Edward Osann, National Wildlife Federation) before the Water Resources Subcommittee of the House Public Works and Transportation Committee, 101st Cong., 2d Sess. (Apr. 24, 1990). The committee included the provisions during markup of its omnibus bill, H.R. 5314, on Aug. 1, 1990.

67. H.R. 5314, 101st Cong., 2d Sess. (1990).

68. S. 2740, 101st Cong., 2d Sess. (1990).

69. Based on the authors' observations.

70. Id.

71. Id.

72. See supra note 44 and accompanying text.

73. See supra notes 30-32 and accompanying text.

74. For a similar assessment, with particular emphasis on coastal protection, see Houck, Ending the War: A Strategy to Save America's Coastal Zone, 47 MD. L. REV. 358, 403-04 (1988).

75. An earlier version of the House bill (H.R. 5314) addressed one of the most controversial aspects in the wetlands debate: defining what a wetland is, and is not. The committee-passed bill included the wetland definition in the Corps' and EPA's regulations. The definition, however, was included only for purposes of the water resources program authorities and not for regulatory program authorities. Rep. Emerson (R-Mo.), however, successfully offered an amendment during consideration of flood provisions that deleted the definition. See 136 CONG. REC. H8137-38 (daily ed. Sept. 26, 1990) (debate on H.R. 5314).

Rep. Alexander (D-Ark.) sought to include, rather than delete, controversial wetlands provisions. He tried unsuccessfully to attach to the omnibus bill his legislation, H.R. 4133, to expand existing exemptions in FWPCA § 404(f) relating to farming practices. Water Resources Subcommittee Chairman Nowak objected, raising a point of order that the FWPCA amendment was not germane to the Corps/WRDA bill. Knowing the point of order would be sustained, Rep. Alexander reluctantly withdrew his amendment. See 136 CONG. REC. H8139-40 (daily ed. Sept. 26, 1990) (debate on H.R. 5314).

76. Id. Such battles took place during debate over wetlands provisions in the new Farm Bill, entitled the Food, Agriculture, Conservation, and Trade Act of 1990, Pub. L. No. 101-624, Nov. 28, 1990, 104 Stat. 3359 (1990).

77. Based on the authors' observations.

78. Id. See supra statement of Rep. Nowak during debate of the amendment by Rep. Alexander, at note 75.

79. Hearings on the Recommendations of the National Wetlands Policy Forum before the Water Resources Subcommittee, House Public Works and Transportation Committee, 101st Cong., 2d Sess. (Feb. 27, 1990) and Hearings on Corps' Water Resources Projects, supra note 66.

80. 136 CONG. REC. H12330 (daily ed. Oct. 27, 1990) (statement of Rep. Stangeland during debate on conference report on S. 2740).

81. This provision originated from a proposal by Rep. Hayes (D-La.), who has been leading efforts to stem the enormous coastal wetland losses in Louisiana. Although these identified efforts could be as simple and inexpensive as modifying the placement of dredged material, they could have major environmental benefits.

82. Memorandum from Major General Patrick J. Kelly, Director of Civil Works, Nov. 7, 1990 (document on file with authors).

83. See supra note 44 and accompanying text (regarding memorandum from Lt. Gen. H. J. Hatch, Chief of Engineers).

84. See supra note 80. See generally Hearings on Wetlands Protection before Water Resources Subcommittee, House Public Works and Transportation Committee, 101st Cong., 1st Sess. (Apr. 12, 1989) (statement of William Reilly, Administrator of EPA).

85. See supra note 80.

86. Id.

87. Based on the authors' observations.

88. Id.

89. Id.

90. Id.

91. See H.R. REP. 966, Conference Report to Accompany S. 2740, the Water Resources Development Act of 1990, Oct. 27, 1990. The statement of managers, on p. 68, describes the controversy surrounding mitigation banking.

92. Pub. L. No. 101-640, § 101(18), 104 Stat. 4607-11 (1990).

93. See supra note 91.

94. Id.

95. Id. "[T]he Corps should consider evaluation techniques which could be useful in assessing wetlands mitigation banking for further consideration by the Congress." Id.

96. Based on the authors' observations.

97. Pub. L. No. 101-646, 104 Stat. 4761 (1990).

98. See infra note 118 (discussion of the law's potential violation of the Appointments Clause to the U.S. Constitution).

99. See supra note 80.

100. 136 CONG. REC. H8157 (daily ed. Sept. 26, 1990) (debate on amendment to H.R. 5314 by Rep. Emerson).

101. Water Resources Development Act of 1990, Pub. L. No. 101-640, § 308(b), 104 Stat. 4638 (1990).

102. Based on the authors' observations. See also 136 CONG. REC. H8157-58, 61 (daily ed. Sept. 26, 1990) (debate on amendments to H.R. 5314 by Reps. Emerson and Stangeland).

103. 136 CONG. REC. at H8157-58, 61.

104. See supra note 80.

105. Id. See also 136 CONG. REC. E2490 (daily ed. July 25, 1990) (statement of Rep. Stangeland on introduction of H.R. 5370).

106. See supra note 80.

107. Id. See also transcript of markup of H.R. 5314, Public Works and Transportation Committee, U.S. House of Representatives, 101st Cong., 2d Sess. (1990) (unpublished document on file with committee clerk).

108. See supra note 80.

109. Id. See, e.g., H.R. REP. Nos. 84 and 85 (1990) (hearings on water supply needs and impacts relating to the Apalachicola-Chattahoochee-Flint River Basin and the Coosa-Alabama River Basin before the Subcommittee on Water Resources, House Public Works and Transportation Committee, in Decatur, Georgia, and Tallahassee, Florida (Sept. 28-29, 1990) (not yet printed).

110. S. Rep. No. 33, 101st Cong., 2d Sess. (1990) (S. 2740, the Water Resources Development Act of 1990, § 308).

111. See supra note 107. See generally 136 CONG. REC. H8138, H8144, H8163 (daily ed. Sept. 26, 1990) (debate on amendments to H.R. 5314 by Reps. Shuster, Dorgan, and Pickett).

112. The Subcommittee on Water Resources has conducted three recent hearings on toxic pollution and sediments: Committee on Public Works and Transportation Committee Prints 100-49, March 2, 1988, 101-27, June 21, 1989, and 101-76, May 15 and 16, 1990.

113. Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499, Oct. 17, 1986, 100 Stat. 1613 (1986) (codified generally at 42 U.S.C. § 9601 et seq.) [ELR STAT. CERCLA 001 et seq.].

114. Id. at § 105.

115. Besides the obvious environmental benefit of cleaning up contaminated sediments, the United States is obligated by the Great Lakes Water Quality Agreement of 1978 (GLWQA), as amended by Protocols signed November 18, 1987, to develop and implement programs and other measures for the abatement and control of pollution from all contaminated sediments. See GLWQA, Art. VI and Annex 14.

116. Removal of contaminated sediments conducted as operation and maintenance will be at federal expense if the depth is not more than 45 feet, and incremental costs for depths greater than 45 feet will be shared equally with a nonfederal sponsor. See WRDA 1986, § 101, Pub. L. No. 99-662, 100 Stat. 4082 (1986).

117. Throughout the hearings of the Subcommittee on Water Resources, supra note 25, the Corps maintained that it lacked authority to perform dredging beyond the navigation channel.

118. In signing WRDA 1990, President Bush devoted substantial attention to allegedly unconstitutional provisions in the Onondaga Lake section (identical to those enacted ten days earlier in the Great Lakes Critical Programs Act of 1990, Pub. L. No. 101-596, Nov. 16, 1990, 104 Stat. 3000 (1990)). According to the President, both Acts give to state governors and state and local officials serving on the Onondaga Lake Management Conference powers the Constitution reserves solely for officials selected pursuant to the Appointments Clause. President Bush said he was directing the Secretary of Defense, the Administrator of EPA, and the Attorney General to submit corrective legislation. Id.

President Bush raised the same problem, but offered a different solution, in the context of the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990, Pub. L. No. 101-646, Nov. 29, 1990, 104 Stat. 4761 (1990), relating to coastal wetlands, zebra mussels, and Great Lakes Fisheries. See Statement on Signing the Bill on Wetland and Coastal Inland Waters Protection and Restoration Programs, 26 WEEKLY COMP. PRES. DOC. 1940 (Dec. 3, 1990). According to the President, Title III of the Act violates the Appointments Clause by designating a state official on a task force that will set priorities for wetlands restoration and formulate federal conservation and restoration plans. In order to implement the provision, the President directed that the state official be considered a non-voting member of the task force. Id.

It remains to be seen whether Congress will pursue similar management conferences for site-specific cleanup programs given the political and constitutional issues associated with Onondaga Lake and the Louisiana wetlands task force.

119. See 136 CONG. REC. H8141-44 (daily ed. Sept. 26, 1990) (debate on amendment by Rep. Pallone).

120. The Passaic River project is large and has generated years of controversy. At hearings on proposed project authorizations for WRDA 1990 before the Subcommittee on Water Resources on March 14, 1990, numerous witnesses and over 200 individuals appeared both in support of and in opposition to the project. HOUSE COMM. ON PUBLIC WORKS AND TRANSPORTATION, 101ST CONG., 2D SESS., HEARINGS ON WRDA 1990, at 59 (Comm. Print 1990).

121. See Conference Report to accompany S. 2740, H.R. REP. NO. 966, 101ST CONG., 2D SESS. 65 (1990).

122. Section 43 of the House-passed bill (H.R. 5314) prohibited construction of the pipeline until a report on a study relating to declining populations of striped bass in Albemarle Sound and the Roanoke River Basin was completed. Rep. Valentine (D-N.C.), with support from others, included the provision during consideration of the bill in the House Public Works and Transportation Committee on August 1, 1990. (Unpublished proceedings on file with committee.)

123. In fact, the North Carolina delegation was instrumental in enacting Pub. L. No. 100-589, requiring a three-year study to evaluate the reasons for the fish's population decline. See 136 CONG. REC. E3721-2 (statement of Rep. Jones relating to § 413 in the conference report on S. 2740) (Nov. 2, 1990). The issue had also spawned litigation over the Corps' duties under § 404 of the FWPCA and under NEPA.

124. Id.

125. Based on the authors' observations.

126. Id. See supra note 123.

127. S. REP. NO. 333, 101ST CONG., 2D SESS. (1990) (Environment and Public Works Comm. Rep. to accompany S. 2740, WRDA 1990).

128. Id.

129. Id.

130. 136 CONG. REC. S16894-95 (daily ed. Oct. 27, 1990) (statement of Sen. Graham on S. 3262).

131. S. 3262, 101st Cong., 2d Sess. (1990).

132. Id. See also 136 CONG. REC. S11772-87 (daily ed. Aug. 1, 1990) (debate on and passage of S. 2740, including § 102(c) relating to the Kissimmee River).

133. Id.

134. Id.

135. Based on the authors' observations.

136. Id.

137. Id.

138. 136 CONG. REC. H13287 (daily ed. Oct. 27, 1990) (discussion concerning the Kissimmee River).

139. Id.

140. See supra note 8.

141. 136 CONG. REC. S17795 (daily ed. Oct. 27, 1990).

142. See supra note 57 and accompanying text.

143. See supra note 44.

21 ELR 10308 | Environmental Law Reporter | copyright © 1991 | All rights reserved