The Water Resources Development Act of 1992: Expanding the "Corps of Environmental Engineers"

Benjamin H. Grumbles and Kenneth J. Kopocis

Editors' Summary: The Water Resources Development Act of 1992 (WRDA 92 or the Act), enacted on October 31, 1992, is an omnibus water projectauthorization and policy bill of the type traditionally used to authorize the U.S. Army Corps of Engineers' (Corps') civil works projects. However, WRDA 92 differs from its predecessors by going farther in fostering a "greener," more "environmental" Corps. It authorizes more projects directly related to environmental protection and restoration, and signals Congress' growing inclination to use the Corps as environmental engineers.

The authors review the background of the Act, focusing on the Corps' historical responsibilities, and analyze the Act's major provisions. They discuss the Act's project authorizations, including the first authorization of a major Corps project whose sole purpose is to improve the environment through ecosystem restoration, and they examine the ways in which the Act reforms current Corps programs and directs the Corps into addressing new subjects. They conclude that Congress is likely to increase its use of WRDAs as vehicles for environmental protection, by expanding the Corps' role and redefining its relationship with EPA. They speculate that Congress will also take advantage of the Corps' expertise in future amendments to the FWPCA and the Marine Protection, Research, and Sanctuaries Act. Finally, they advise interested observers to watch congressional developments on agency budgets, wetlands, watersheds, proposed Corps reorganization, and proposed EPA elevation to cabinet-level status, to see whether — or when — the Corps will become the "Corps of Environmental Engineers."

Mr. Grumbles is assistant minority counsel and Mr. Kopocis is assistant majority counsel for the Water Resources and Environment Subcommittee of the House Committee on Public Works and Transportation. 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 House Committee on Public Works and Transportation or any of its members. The authors would like to thank Ms. Dorothy E. Chepp for her assistance in preparing this Article.

[23 ELR 10379]

Strange things can happen in the final hours of a congressional session — particularly in an election year. As members of Congress rush to adjourn, a dizzying array of concessions and compromises emerges to pave the way for passage of otherwise "gridlocked" legislation. A prime example is the Water Resources Development Act of 1992 (WRDA 92),¹ an omnibus water project authorization and policy bill of the type traditionally used to authorize the U.S. Army Corps of Engineers (Corps') civil works programs.

Just before sunrise on October 6, 1992, without fanfare, significant debate or recorded vote, the House of Representatives passed H.R. 6167,² which would become WRDA 92.³ The Senate followed suit, again without debate or controversy, passing the identical, compromise bill on October 8.⁴ This bicameral, bipartisan action allowed the bill to avoid further negotiation or lengthy House-Senate conference discussions and go directly to the White House. As expected, President Bush signed the measure into law on October 31, 1992.

WRDA 92, in its final form, embodies compromises from earlier omnibus Corps authorization bills and other miscellaneous water resources bills, and last-minute negotiations among the House, Senate, and administration.⁵ Despite its low profile, WRDA 92 contains several significant provisions and new directions affecting the nation's water resources.

Most importantly, WRDA 92 continues the trend towards a "greener," more "environmental" Corps.⁶ In large part, this recent emphasis on environmental protection and restoration [23 ELR 10380] took root in the Water Resources Development Act of 1986 (WRDA 86),⁷ continued to grow in the Water Resources Development Act of 1988 (WRDA 88),⁸ and flourished in the Water Resources Development Act of 1990 (WRDA 90).⁹

Congress' most recent omnibus water resources bill for the Corps, WRDA 92, goes one step further than its predecessors. It includes major new provisions and themes reinforcing the Corps' environmental mission. For example, it contains an increasing number of projects directly related to environmental protection and restoration and omits controversial provisions criticized by environmental groups.¹⁰ Other highlights include new programs, demonstration projects, and policy directives relating to, among other things: environmental cost sharing; wetlands protection, restoration, and creation; dredged material management, disposal, and beneficial use; watershed and ecosystem protection; wastewater reclamation and reuse; "environmental infrastructure"; and water quality.

Various themes and trends also emerge from WRDA 92. The bill not only signifies Congress' growing use of the Corps as environmental engineers; it also shows Congress' increasing willingness to use the Corps' omnibus water projects legislation as a vehicle for all kinds of environmental projects and policies — particularly those relating to the U.S. Environmental Protection Agency (EPA or the Agency). For example, some of WRDA 92's most significant provisions amend the Federal Water Pollution Control Act's (FWPCA's)¹¹ sections that address EPA's stormwater permitting program, and amend Title I of the Marine Protection, Research, and Sanctuaries Act (commonly known as the Ocean Dumping Act) (ODA),¹² which addresses EPA's and the Corps' authority relating to contaminated dredged material.

Background

WRDA 92, like preceding omnibus Corps authorization bills, focuses on the Agency's long-standing civil works/water resources program. The Corps' civil works mission has a long history. America's first military engineers served in the Revolutionary War. In 1802, Congress directed that the Corps establish a military academy, which evolved into the U.S. Military Academy at West Point. In 1824, Army engineers became involved in navigation improvements through work on rivers and canals, and again in 1831 when funds appropriated for lighthouse improvements were placed in the hands of the Chief of Engineers for disbursement. The Corps also became involved in federal efforts to control flooding in the late 19th century. These early activities marked the beginning of the Corps' civil works mission.¹³

The Corps' current civil works program is expansive. The Corps now constructs projects for navigation, flood control, beach erosion control and shoreline protection, hydroelectric power, recreation, water supply, environmental protection, and fish and wildlife mitigation and enhancement.¹⁴

Additionally, the Corps has responsibility for regulatory programs,¹⁵ addressing, among other things, the deposition of material or placement of structures into the navigable waters of the United States (a statutory authority of the Agency since 1899),¹⁶ and the discharge of dredged and fill material into waters of the United States, including wetlands,¹⁷ and ocean dumping¹⁸ (authorities of the Agency since at least 1972). As the role of the Corps has expanded, so has the awareness of the environmental responsibilities that accompany the civil works program.

Major Provisions of WRDA 92

Project Authorizations

Auburn Dam, California. One of the best examples of the growing awareness of the environmental aspect of the Corps' program cannot be found in WRDA 92 at all. Instead, it involves what Congress chose to delete from, rather than include in, the Act. Members, with strong backing from environmental groups and others, decided not to authorize a controversial dam project.

The city of Sacramento, California, needs improved flood protection for land that is currently being developed or may be developed in the future. In February 1986, major storms in northern California caused record flows in the American River Basin, resulting in significant damage in the Sacramento area. The existing flood control system was found to provide substantially less than a 100-year level of flood protection.¹⁹ The Corps reviewed numerous options for increasing flood protection. The final report of the Chief of Engineers recommended construction of a flood detention dam in the upper American River Canyon near Auburn, California. This dam would provide no permanent storage of water. Its operation would be coordinated with the operation of existing Folsom Reservoir, which is downstream of the new dam site, and existing levees would be raised in the Sacramento area. The total cost of the project would be nearly $700 million.

When the House Committee on Public Works and Transportation considered an early version²⁰ of the bill that became WRDA 92, the bill included authorization of the Corps' recommended project. During markup, the Committee decided to delete the project because of concerns surrounding the proposal. The deletion was made with the [23 ELR 10381] understanding that members of the Committee and the California delegation would continue to review the issues surrounding the Corps' proposal with hopes of reaching a compromise.²¹

After much discussion among all interested parties, the leadership of the Committee determined to include authorization of the project as recommended in the final report of the Chief of Engineers when the bill came to the full House for consideration.²² When this happened, however, Rep. Thomas Petri (R-Wis.) offered an amendment to delete the authorization from the bill.²³ With the support of several national environmental organizations and the National Taxpayers Union, among others, Rep. Petri argued for protection of the American River Canyon, describing it as "special and one of the few remaining free flowing segments of the river."²⁴ Rep. Petri questioned "whether it is possible to mitigate for lost fish and wildlife resources, and [resolve] a $171 million dispute over actual mitigation costs."²⁵

Interestingly, the project was also opposed by parties who supported a larger, multipurpose structure that would permanently inundate the American River Canyon and provide water supply and hydropower to the region. Rep. Wally Herger (R-Cal.) argued that the Corps' proposal "[fell] far short of meeting the water needs of Californians who currently are suffering through their sixth consecutive year of drought."²⁶

With opposition from environmental groups arguing against harm to the American River Canyon, and opposition from proponents of a larger, multipurpose structure, the amendment to delete the project passed by a 273-to-140 margin.²⁷ It is possible that the defeat of this project signals the end of an era of large dam construction in the United States. The Corps is continuing to review the project and possible alternatives,²⁸ but a lively debate is surely in order if another attempt is made to authorize a large structure on the American River.

Kissimmee River, Florida. WRDA 92 includes the first authorization of a major Corps project whose sole purpose is to improve the environment through ecosystem restoration. The Kissimmee River restoration project, authorized in WRDA 92 § 101(8),²⁹ significantly modifies the existing Kissimmee River project by removing certain features in the interest of improving the environment. Combined with the existing Kissimmee River headwaters revitalization project, WRDA 92's provisions represent a commitment of nearly $520 million from federal and state sources to improve the ecosystem of the Kissimmee River.³⁰

The Kissimmee River's restoration will undo the channelization that occurred in the 1960s. The existing project, coupled with basin development and upland drainage practices, reduced wetlands habitat and degraded water quality. The result has been significantly reduced populations of fish and wildlife species and a decline in wetlands acreage from 35,000 acres to 14,000 acres.³¹ The proposed project will fill in about 29 miles of the current river channel, allowing the river to resume its meandering course south to Lake Okeechobee. Other structural changes to the existing project will allow the river to reclaim its former course.

This project may be the best example yet of the new, greener Corps and how its engineering skills can be put to use to improve the environment.³² Of course, the restoration would not be necessary if the original, environmentally detrimental project had not been constructed, but the project is there, and the restoration of the area must be viewed under current circumstances with an operational project. The fact that the Corps would ever commit to study, recommend, and construct a project of this magnitude, which has only environmental benefits, is a major new direction and accomplishment of a greener Corps.³³

New and Revised Corps Programs

"Environmental" Cost Sharing. WRDA 86 reformed the civil works program of the Corps by establishing comprehensive statutory federal and nonfederal shares, which define federal participation in water resources development projects.³⁴ WRDA 86 also defined the parameters of federal projects by forcing nonfederal sponsors to carefully evaluate the costs and benefits associated with a project before committing local resources. This has forced the Corps to create a more disciplined civil works program with fewer accompanying environmental consequences. WRDA 92 continues the reforms begun in 1986 in defining the civil works program.

In 1986, Congress also gave the Corps authority for a two-year demonstration program to implement changes in the structure and operation of previously constructed projects to improve the environment.³⁵ This authority is known [23 ELR 10382] by its section number — 1135.³⁶ WRDA 88 extended this program for three years,³⁷ and WRDA 90 made the program permanent with an annual authorization of $15 million.³⁸

In one of its more significant provisions, WRDA 92 further defines and expands the § 1135 program. Section 202 of WRDA 92³⁹ increases the § 1135 program's annual authorization to $25 million. Additionally, so that Congress will have the opportunity to review project modifications of major proportions prior to implementation, modifications under § 1135 are now limited to $5 million without congressional authorization.⁴⁰

Section 203⁴¹ of WRDA 92 allows persons and entities other than the project sponsor to make contributions to the Secretary of the Army in connection with a water resources project for environmental protection and restoration or recreation. In the past, local individuals or organizations often sought to contribute funds to the Corps to improve environmental or recreational components of projects, but the Corps lacked authority to accept the contributions and use the money, material, or services. Now, for example, the Corps can accept donations of money or services from local environmental organizations to improve wildlife habitat at Corps' projects rather than obtaining an additional appropriation from Congress.

Section 207,⁴² which addresses cost sharing for disposal of dredged material on beaches, is another example of a WRDA 92 provision intended to improve nonfederal involvement in Corps' projects. Section 145 of the Water Resources Development Act of 1976⁴³ authorized the placement of sand (from dredging operations) onto adjacent beaches if requested by the affected state and if the state paid the additional costs of disposal. WRDA 86 modified this authority to make the nonfederal share one-half of the additional costs of disposal.⁴⁴ This change was intended to encourage use of the authority to restore beaches for environmental and recreational benefits. States complained to the House Committee on Public Works and Transportation that construction and financing schedules of state projects did not always match those of the Corps' dredging program, and that valuable assets (dredged sand) were being lost.⁴⁵

The Committee responded in 1988 by amending the law to require the Corps to accommodate the state's schedule for providing its share of disposal costs to the maximum extent practicable.⁴⁶ Because of increasing state budget problems, local governments have often been required to assume the nonfederal responsibility for local water resources projects. The Committee was asked again to amend the law to allow states' political subdivisions to serve as nonfederal sponsors of beach sand placement projects.⁴⁷ Congress responded in § 207 of WRDA 92, which grants political subdivisions the same status as states in acting as nonfederal sponsors and requires the Corps to consider the planning and financing schedules of local governments when it develops dredging plans.⁴⁸

Aquatic Nuisances. WRDA 92 also builds on the Corps' existing authorities regarding aquatic nuisances and nonindigenous species, particularly zebra mussels.⁴⁹ Increasingly, zebra mussels have been infiltrating the Great Lakes and connecting water bodies (as well as "remote" areas such as the Tennessee River). They are causing municipalities, individuals, and businesses to incur millions of dollars in repair costs for damaged water intake pipes, boat hulls, and other structures.⁵⁰

In response, § 302⁵¹ of WRDA 92 authorizes a $10 million prevention, monitoring, and technical assistance program within the Corps to protect New York City's water supply system against zebra mussel infestation.⁵² Section 302 responds to another local concern — in Albany, New York — by amending the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990⁵³ to require the Secretary of Transportation, in consultation with others, to issue regulations to prevent the introduction and spreading of "aquatic nuisance species" in the Great Lakes through ballast water carried on certain vessels entering the Port of Albany on the Hudson River.⁵⁴ The lessons learned from these programs should help other areas of the country address the [23 ELR 10383] problem of the zebra mussel and other nonindigenous, nuisance species.

Other provisions of WRDA 92 address nuisance aquatic vegetation. For example, § 108⁵⁵ authorizes $1 million for the Corps to construct (and then transfer to the U.S. Department of Agriculture) a research and quarantine facility in Florida to control melaleuca (a type of weed) and other exotic plant species that threaten native ecosystems in the state. In addition, § 339⁵⁶ authorizes $200,000 for the Corps to undertake a program to control nuisance aquatic vegetation to preserve recreational uses of Lake Gaston in Virginia and North Carolina. Both sections illustrate Congress' interest in expanding the Corps' traditional missions and existing authorities under its aquatic weed removal program to address emerging concerns relating to water quality and ecosystem and infrastructure protection.

Wetlands and Beneficial Use of Dredged Material. Like previous WRDAs, WRDA 92 steers clear of the enormously controversial FWPCA § 404 wetlands permitting program. It also avoids entering the fray over farming regulations and Swampbuster.⁵⁷ Procedural and jurisdictional factors and inflammatory policy disputes persuaded members of Congress that Corps' "regulatory reform" provisions would put the entire bill at risk.⁵⁸ Amendments to FWPCA § 404 would likely provoke in the legislative arena some of the same bitter battles among regulators, developers, property rights proponents, farmers, environmentalists, and others currently being waged in administrative and judicial forums.⁵⁹

WRDA 92, however, does contain a significant number of wetlands-related provisions that avoid § 404's regulatory debate. Like WRDA 90, WRDA 92 focuses on expanded authorities and site-specific directives under the Corps' civil works program rather than the Agency's permitting and nationwide regulatory programs.⁶⁰ Likewise, WRDA 92 emphasizes wetlands protection, restoration, mitigation, and creation rather than regulation and specific permit disputes. Two of the clearest examples of this are § 106 of WRDA 92,⁶¹ which authorizes the Sonoma Baylands' wetlands demonstration project, and § 204,⁶² which authorizes beneficial use of dredged materials.⁶³

Section 106, which authorizes a project virtually identical to the project contained in the Reclamation Projects Authorization and Adjustment Act of 1992,⁶⁴ directs the Secretary of the Army to conduct a 320-acre wetlands demonstration project in the San Francisco Bay-Delta estuary.⁶⁵ This comprehensive, $15 million project is required to utilize dredged material (suitable for aquatic disposal) for a wide variety of environmentally beneficial purposes, including preservation of wetland-dependent plants and animals, restoration of tidal wetlands, flood control, water quality improvement, sedimentation control, and facilitation of dredging projects in an environmentally sound manner.⁶⁶

Section 204 links the concepts of wetlands protection, beneficial use of dredged material, and environmentally sound dredging to form an important new continuing authority for the Corps. This little-heralded provision expands the concept of beneficial use of dredged material into a national, $15 million-a-year program. Specifically, it authorizes the Secretary of the Army to implement projects for the "protection, restoration, and creation of aquatic and ecologically-related habitats, including wetlands, in connection with dredging for construction, operation or maintenance" at authorized Corps navigation projects.⁶⁷

Besides this threshold requirement for connection to existing Corps projects, the new § 204 authority contains additional conditions and requirements relating to secretarial findings and cost sharing. For example, subsection (b) limits the authority to instances where the Secretary of the Army finds the "environmental, economic, and social benefits of the project, both monetary and non-monetary, justify the cost" and the project would not result in environmental degradation.⁶⁸

Subsection (c) requires nonfederal interests to enter into cooperative agreements with the Secretary of the Army before § 204's projects begin. These agreements commit the nonfederal interest to provide 25 percent of construction costs, including all lands, easements, rights-of-way, and necessary relocations and 100 percent of operation, maintenance, replacement, and rehabilitation costs. (These commitments are the minimum required of a nonfederal sponsor for federal participation in most water resources projects.)⁶⁹ Subsection (d) stipulates that § 204's project "construction costs" are limited to those in excess of costs necessary to carry out dredging associated with the authorized navigation project.⁷⁰

Section 204 is based, in large part, on recent congressional activity and testimony and reports touting opportunities to use dredged material to restore degraded areas and related aquatic habitats — particularly wetlands.⁷¹ The [23 ELR 10384] growing "crisis" over dredged material disposal options and the need to restore and protect wetlands and other sensitive habitats all translate into more demonstrations under § 204. Given the "growth potential" in this area, the § 204 program could become one of the Corps' most widely used generic authorities. In the near future, it could become as popular as some of the Corps' existing programs involving flood control, navigation, beach erosion control, and § 1135's projects.⁷²

New Directions

WRDA 92 not only continues many of the reforms and environmental trends established in previous WRDAs, it also directs the Agency into several "new" areas — or at least, areas receiving little attention from the Corps in recent years. Three particular areas — watershed management, wastewater reclamation/reuse, and environmental infrastructure — received significant coverage in WRDA 92.

Watershed-based, Ecosystem Protection. Watershed protection is growing in popularity. Federal, state, and local agencies are shifting toward watershed planning and management in addressing water quality and quantity issues. The goal is to look at a hydrologic unit and its pollution sources from all perspectives (water, land, and air) and use various disciplines and devices (such as land use planning, wetlands protection, flood control, stormwater management, and point source and nonpoint source effluent controls).

This holistic, multimedia, multidisciplinary approach to targeted, ecosystem protection is prevalent throughout WRDA 92. Examples include site-specific project authorizations and demonstrations such as § 114(d)⁷³ (District of Columbia and Maryland Anacostia River watershed study), § 303⁷⁴ (Susquehanna River Basin, Pennsylvania), § 304⁷⁵ (Broad Top region, Pennsylvania), § 313⁷⁶ (south central Pennsylvania), § 324⁷⁷ (Hackensack Meadowlands, New Jersey), § 326⁷⁸ (New York Bight and Harbor study), § 331⁷⁹ (Conemaugh River Basin, Pennsylvania), and § 340⁸⁰ (southern West Virginia).⁸¹ Each directs the Corps to perform comprehensive watershed planning, management, and restoration on diverse issues ranging from sedimentation and wetlands restoration to acid-mine runoff and reclamation and stormwater retention.

The watershed-based approach will likely increase the Corps' role in water quality issues. The Corps already plays a major part, given its general authorities to manage water (such as for flood control, navigation, water supply, and other purposes) and its wetlands and other water-permitting programs. This role will increase even more if WRDA 92's provisions are implemented and Congress continues to support the watershed-based approach. And as the watershed approach takes root throughout the nation,⁸² water regulators and members of the regulated community will need to work closely with the Corps to integrate various permit requirements and approvals. In theory, if not in practice, the Corps will have under such a watershed protection approach, a veto or significant leverage to veto or condition various types of watershed activities because of its existing wetlands and water management authorities. Several legislative proposals are already contemplating a critical, if not primary, role for the Corps in a comprehensive watershed-based approach to water quality and wetlands protection.⁸³

Wastewater Reclamation and Reuse. It has been said often that the "traditional" role of the Corps is to improve navigation and provide flood control measures.⁸⁴ However, in recent years, the Corps' new role has been to respond to the engineering needs of the nation. A recent example is the involvement of the Corps in developing magnetic levitation technology to enhance transportation infrastructure.⁸⁵ In WRDA 92, the House Committee on Public Works and Transportation expanded the "traditional" role of the Corps again to make use of its engineering expertise in a nontraditional area — wastewater reclamation and reuse.

Section 217⁸⁶ authorizes the Secretary of the Army to provide assistance to nonfederal interests in California for carrying out projects for the beneficial use of wastewater. The Corps will make available its expertise in technical assistance, planning, and design of water reuse projects. As is usually the case, the nonfederal share of any such assistance must be at least 25 percent, although nonfederal participation is subject to the ability of the nonfederal interest to pay.⁸⁷

The need to use the skills of the Corps in wastewater reuse projects was brought to the attention of the Committee at the first hearing on proposals to enact WRDA 92.⁸⁸ Members became convinced that the Corps, through WRDA 92, could assist in meeting the twin goals of improving [23 ELR 10385] water quality and increasing water quantity, especially in western states and other drought-prone areas.⁸⁹

Environmental Infrastructure. The Corps also received new authority, primarily in § 219, to assist in improving the nation's environmental infrastructure. Water-related infrastructure needs have been growing in recent years. Communities throughout the country, particularly in small and rural areas, are challenged to provide wastewater and drinking water treatment, water supply, and other environmental facilities and services while facing increasingly stringent environmental requirements and fiscal constraints.⁹⁰

Congress responded, in part, by expanding the Corps' current authorities and encouraging new forms of federal assistance. Section 219⁹¹ of WRDA 92 authorizes the Secretary to provide assistance to nonfederal interests for carrying out a wide array of water-related environmental infrastructure and resource protection and development projects, including wastewater treatment and related facilities and water supply, storage, treatment, and distribution facilities. As with § 217, § 219 may require the Corps to provide technical, planning, and design assistance, and require nonfederal interests to contribute at least 25 percent of the cost of the assistance.

The types of projects in which the Corps will be involved will address stormwater discharges, combined sewer overflows, water treatment, and sewage sludge use. Hopefully, the same engineering enthusiasm and abilities that allowed the Corps to successfully attack flood hazards and navigation needs over the years can be used to improve the nation's environmental infrastructure.

Water Quality-Related Provisions

Procedural Considerations. WRDA 92 probably has more environmental provisions than the preceding three omnibus Corps WRDA bills. The primary reasons for this may be an expanded list of growing water infrastructure needs and the delayed reauthorization of the FWPCA. When the 102d Congress convened, 1992 was seen as the "year of clean water" and the year for comprehensive reauthorization of the FWPCA.⁹² Controversies involving, among other things, FWPCA § 404's wetlands permitting program, combined sewer overflows, and stormwater helped to postpone congressional action on an FWPCA bill.

As the impact of these controversies on the FWPCA's reauthorization became apparent in the final months of the 1992 session, WRDA 92 became the vehicle for a wide array of water-related environmental infrastructure projects and program authorities. Once members of Congress realized that the FWPCA's reauthorization was dead for the year, they saw WRDA 92 as the best opportunity to address water infrastructure needs ranging from water treatment and supply to watershed protection and reclamation.

The leaders of both the Senate and House public works committees, but particularly the House Committee on Public Works and Transportation, faced a fundamental procedural and political question throughout development of WRDA 92: to what extent should the bill involve FWPCA- and EPA-related provisions? On the one hand, WRDA 92 offered the opportunity to address various environmental needs and to continue to expand the Corps' environmental mission. On the other hand, members could risk losing the entire WRDA bill if they included too many controversial provisions or authorizations for nontraditional Corps projects.

Ultimately, members opted for a middle-ground approach, the most common avenue for last-minute legislative vehicles. WRDA 92 contains many water quality and environmental protection provisions, yet still retains its overall character as a Corps' water projects authorization bill. This character is reflected in the watershed-based, wastewater reclamation, and environmental infrastructure projects described above. In fact, the wastewater and environmental infrastructure projects were central to the whole debate over using a WRDA as a vehicle for the FWPCA's and EPA's provisions.⁹³ Without losing its status as a Corps' water projects bill, WRDA 92 goes one extra step, including additional water quality provisions beyond those addressing water reclamation and environmental infrastructure.

Miscellaneous Projects. WRDA 92 authorizes environmental projects of virtually every type. Only those outside the jurisdiction of the Senate and House public works committees escaped the law's coverage.⁹⁴ Thus, WRDA 92 covers areas as diverse as water quality exchange rates and flow augmentation,⁹⁵ bulkhead construction to reduce the flow of pollutants into Lake Erie,⁹⁶ Superfund sites,⁹⁷ and groundwater monitoring.⁹⁸

It also integrates water quality considerations into several existing projects. For example, § 102(l)⁹⁹ modifies the Buffumville Lake, Massachusetts, project to make low flow enhancement (for water quality) one of the project's purposes. [23 ELR 10386] Section 309(l)¹⁰⁰ requires the Secretary of the Army to review the Central and Southern project in Florida to improve the "quality of the environment" and to protect the area's aquifer. Section 317,¹⁰¹ directs the Secretary of the Army to modify the Levisa Fork flood control project in Kentucky to add construction of a sewage collection system, elimination of stagnant water, and other water quality measures.

Section 307¹⁰² contains some of WRDA 92's most significant water quality projects. Seventy million dollars is authorized for the Secretary of the Army to design and construct five combined sewer overflow/stormwater control projects in Louisiana, Maine, New York, and Rhode Island. Each is subject to nonfederal cost sharing and is required to contribute toward the FWPCA's compliance efforts. These stormwater control demonstration provisions, and the wastewater reclamation and environmental infrastructure projects, help to make WRDA 92 look increasingly like an FWPCA bill and less like a typical WRDA bill from previous Congresses.

Stormwater Permitting. Perhaps the clearest example of a water quality provision in WRDA 92 is § 364,¹⁰³ which does not involve the Corps or its water resources program. Instead, this section amends the FWPCA to extend two deadlines related to permits and regulations under EPA's FWPCA § 402(p) stormwater program.¹⁰⁴ One deadline extension delays § 402(p)(1)'s permit moratorium date for two years.¹⁰⁵ This means that EPA (or states with permitting authority in lieu of the federal program) cannot require municipalities with populations of less than 100,000 to apply for and obtain permits for certain discharges composed entirely of stormwater before October 1, 1994.¹⁰⁶

The other deadline extension delays § 402(p)(6)'s requirement for EPA to issue regulations and establish a comprehensive regulatory program for certain stormwater discharges.¹⁰⁷ This means that EPA may legally wait until October 1, 1993, to issue regulations for controlling so-called phase two discharges (i.e. those lower priority discharges not enumerated in § 402(p)(1) and subject to specified, earlier permitting deadlines).¹⁰⁸

The provision's scant legislative history indicates that Congress intended to provide limited "regulatory relief" to small towns and other entities potentially subject to EPA's stormwater permitting program.¹⁰⁹ Congress also intended to allow the Agency more time to craft a workable, realistic approach to the less environmentally damaging, phase two stormwater discharges.¹¹⁰

Given its intent and probable impact, § 364 may turn out to be one of the most significant amendments to the FWPCA during the 102d Congress.¹¹¹ The debate surrounding and the approach taken in § 364 will likely surface again in the 103d Congress and beyond. At this point, the programmatic and procedural impacts of § 364 remain unclear. One thing, however, is relatively clear: observers should not be surprised if Congress uses biennial WRDAs to address other environmental issues — even those involving other statutory and agency programs.

Contaminated Sediments and Ocean Dumping

The nation has become increasingly aware that the sediments underlying its lakes, rivers, streams, and coastal areas have been contaminated by years of human and industrial activity. Because of intentional and unintentional disposal of pollutants into the nation's waters, chemical accumulations in sediments have reached unacceptable levels in many areas of the country. The Corps estimates that of the approximately 300 million cubic yards of sediment it dredges each year to support navigation, some 3 to 10 million cubic yards require special handling or disposal because of contamination.¹¹² While this represents a relatively small percentage of the total amount of material excavated annually, it is still a large amount.

Contaminated sediments pose a threat to aquatic ecosystems and human health through the food chain.¹¹³ There is a continuing need to improve the nation's knowledge about the nature of the contaminated sediment problem and its ability to address this pollution issue properly.¹¹⁴ In 1989, [23 ELR 10387] the Marine Board of the National Research Council issued its report, Contaminated Marine Sediments: Assessment and Remediation.¹¹⁵ While limited to a review of marine sediments (it did not review fresh water contaminated sediments), the report concluded that contaminated marine sediments are widespread, potentially far-reaching in their environmental and public health effects, require additional study, and should be subject to a recognized standard for determining acceptable levels of contamination.¹¹⁶

Three major federal laws address contaminated sediment issues — but only in a partial and arguably inadequate manner. The FWPCA gives EPA the responsibility for safeguarding the quality of coastal and inland wastes and sediments.¹¹⁷ Title I of the ODA¹¹⁸ requires the Corps and EPA to regulate the disposal of, or the transportation for the disposal of, any material into the oceans. More recently, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund)¹¹⁹ was amended to allow increased consideration of the risks posed by contaminated sediments in making evaluations under the Superfund program.¹²⁰ This amendment could make certain contaminated sediment sites eligible for funding and cleanup under Superfund.

The members of the House Committee on Public Works and Transportation, and other congressional members, however, realized over the years that remediation of contaminated sediments would take a greater federal commitment than that exercised to date under the Superfund, the ODA's, and the FWPCA's programs. Congress responded with the Water Quality Act of 1987,¹²¹ establishing a five-year study and demonstration program relating to the control and removal of toxic pollutants in the Great Lakes, with emphasis on the removal of toxic pollutants from bottom sediments.¹²²

More recently, in § 312¹²³ of WRDA 90, Congress gave the Corps authority to engage in "environmental dredging" — dredging beyond that necessary to maintain a channel for navigation. Under § 312, the Secretary of the Army is authorized to remove contaminated sediments outside the boundaries of the navigation channel as part of operation and maintenance, and usually at federal expense, whenever necessary to comply with the FWPCA. Additionally, the Secretary of the Army is authorized to remove contaminated sediments from any navigable waters of the United States for environmental enhancement and water quality improvement if the removal is requested by a nonfederal sponsor and the sponsor agrees to pay one-half of the removal costs.¹²⁴

Section 312 has limitations. No more than $10 million may be spent annually under the discretionary authority and the program has a five-year sunset (beginning November 28, 1990).¹²⁵ Also, costs of disposal are a nonfederal responsibility, limiting it to those communities that can afford to take advantage of the authority.¹²⁶

WRDA 92 continues to focus the Corps' water resources program on contaminated sediment and beneficial reuse issues.¹²⁷ Section 204¹²⁸ authorizes $15 million for the Secretary of the Army to carry out projects for the protection, restoration, and creation of aquatic and ecologically related habitats, including wetlands. The monetary and nonmonetary benefits must justify the costs of the project, and the project cannot result in environmental degradation.¹²⁹ This section is viewed as an opportunity for the Secretary of the Army to make better use of a valuable resource — uncontaminated dredged material — particularly in coastal and riverine areas where the judicious placement of dredged material could reap enormous environmental benefits.¹³⁰

WRDA 92's most significant step in addressing contaminated sediments, however, is Title V — the National Contaminated Sediment Assessment and Management Act.¹³¹ The Title V has three major components: establishment of a national contaminated sediments task force and research/monitoring program for coastal and inland waters, enhancement of the role of EPA and affected states in permitting ocean dumping, and reauthorization of the ODA through fiscal year 1997 at $14 million per year.¹³²

Section 502¹³³ charges the task force with making recommendations to Congress to improve existing programs related to the disposal of contaminated sediments. The report is due within two years. Concurrent with the work of the task force, EPA is required to conduct a survey of data on aquatic sediment quality and to conduct a comprehensive program to assess sediment quality.¹³⁴ These efforts should allow future decisionmakers to make informed decisions [23 ELR 10388] on the nature of sediments and effective measures to eliminate current, and prevent future, pollution.

Section 504¹³⁵ of WRDA 92 more clearly defines the role of EPA in issuing ocean dumping permits.¹³⁶ The law had provided an opportunity for EPA to object, but now EPA must respond within 30 days to the notification from the Corps that the Corps intends to issue a permit. Once EPA has all the information it deems necessary to evaluate the permit, it must concur or decline to concur within 45 days.¹³⁷ EPA's determination governs except in limited circumstances unchanged by WRDA 92.¹³⁸

WRDA 92 makes some potentially significant changes to the ODA's provisions relating to "states rights." Section 505¹³⁹ amends ODA § 106¹⁴⁰ to specifically allow states to adopt or enforce requirements on dumping materials into ocean waters within the state's jurisdiction (generally three miles seaward from the coast). States may have requirements more stringent than federal requirements, unless the requirements are not supported by scientific evidence, are arbitrary or capricious, or are not generally applicable to all projects.¹⁴¹ This represents a major change in recognizing the role of states in determining suitable protective measures for their coastal waters. It gives states an important tool for improving their coastal water quality and benthic ecosystems, while at the same time maintaining minimum federal requirements.

Remaining sections of Title V make other key changes to the ODA's permitting regime and relationships among the Corps, EPA, states, and the regulated community. Section 506¹⁴² modifies the ODA to clarify and strengthen EPA's site designation process; to require the development of dredged material disposal site management plans; to condition final site designation and dredged material disposal on the development and approval of site management plans; and to clarify and restrict the Corps' authority to use interim, alternative disposal sites for dredged material disposal.¹⁴³ These restrictions, particularly on use of disposal sites after January 1, 1997, and on extended use of interim disposal sites, have the potential to cause controversies in the future.¹⁴⁴

Section 507¹⁴⁵ amends ODA § 104¹⁴⁶ to impose various conditions on the issuance of permits. For example, dumping permits must include conditions and restrictions consistent with approved site management plans for designated disposal sites. Section 507 also amends WRDA 92 to limit the term of permits to seven years; prior law and practice had generally established a three-year permit term.¹⁴⁷

WRDA 92 § 508¹⁴⁸ modifies penalty provisions in ODA § 105¹⁴⁹ by strengthening criminal penalties and adding new seizure and forfeiture provisions. Section 509¹⁵⁰ amends ODA § 111¹⁵¹ to extend WRDA 92's authorizations from fiscal year 1993 to fiscal year 1997 at $14 million per year.

Emerging Themes and Trends

Greater Use of an "Environmental Corps"

The Corps' roles in water quality, particularly FWPCA-related activities, and environmental protection are bound to increase. This is due in part to the Corps' changing missions and priorities, but also to the changing missions and priorities of EPA and other agencies. In addition, water quality and quantity issues will likely become increasingly linked as EPA and the Corps address surface and groundwater, and point source and nonpoint source pollution problems.

The Corps' efforts to reorganize and redirect priorities will continue to emphasize the environment. Recent budgetary requests and congressional appropriations are clear examples of the Corps' growing "green" trend.¹⁵² Agency resources (particularly dollars) and directives indicate that the Corps today is less in the business of building big dams and other large public works than in the business of conducting environmentally benign, pollution prevention activities.¹⁵³ The so-called "dam it, ditch it, dredge it" mentality is evolving into a more environmentally sustainable, "eco-friendly" approach.¹⁵⁴

One indication of the Agency's trend toward environmental protection, in addition to its budgets and field activities, [23 ELR 10389] is its ongoing effort to reorganize. According to Why Reorganize, a November 1992 publication of the Corps, a decrease in traditional projects and an increase in environmental opportunities are primary reasons to change the Corps' traditional structure.¹⁵⁵ The publication observes that the Corps' current environmental program is bigger than its civil works construction program; and yet, the $1 billion environmental program accounts for only 2 percent of the Corps' workforce because most of the work is in program management.¹⁵⁶

Environmental opportunities for the Corps are likely to grow for additional reasons. As water quality and quantity issues become increasingly linked, so too will activities of EPA and the Corps. In carrying out the goals of the FWPCA, particularly those relating to ecosystem integrity and watershed protection,¹⁵⁷ EPA and Congress may look to the Corps for greater involvement. This should come as no great surprise; the Agency already has extensive experience and expertise in water management, wetlands protection, and other issues addressing both water quality and quantity.

Greater Use of "Environmental WRDAs"

The Corps' expanding environmental authorities and missions will help to redefine the already changing relationship between Congress and the Agency. One can expect the Corps' appropriations and omnibus authorization bills to continue to depart from the form and content of previous legislative vehicles. Other agencies may also receive environmental authorities and directives in WRDAs as these former water project bills increasingly become water and environmental protection bills. Omnibus water resources legislation may never be the same.

For example, WRDA 92 embodies far more than just a single agency, water projects authorization bill. The law represents a politically and procedurally convenient vehicle for a wide array of environmentally related projects and policies. It offers the opportunity for Congress and the Corps to expand the Agency's environmental activities, improve its coordination efforts with EPA and others, and address environmental problems that otherwise could go unaddressed because of procedural and other obstacles.

As the Corps broadens its mission to more closely resemble EPA's, Congress will broaden its options and use legislative vehicles that meet its needs and move according to its schedule. The result is that Corps- and EPA-related provisions, perhaps even those dealing with the FWPCA's programs, may find their way into water resources bills and other public works measures in the 103d Congress.

A similar phenomenon occurred with the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA).¹⁵⁸ Because the FWPCA's legislation was not moving, Congress used the widely supported surface transportation bill to include deadline extensions for certain FWPCA § 402(p) stormwater permits and provisions on wetlands mitigation banking.¹⁵⁹ Legislative vehicles that used to deal exclusively with the U.S. Department of Transportation, EPA, or the Corps are becoming increasingly mixed — as is the jurisdiction of separate legislative committees.

This mixing of agencies and committees, however, results from more than just procedural or political factors. Increasingly, environmentalists and others are advocating an "integrated" approach to resource protection and legislation. As noted in a recent EPA publication, one key to meeting demands of the 21st century will be to work environmental perspectives into legislation and agency practices involving various economic sectors such as transportation, energy, agriculture, manufacturing, and natural resources management.¹⁶⁰

EPA's publication cites ISTEA; the Energy Policy Act of 1992;¹⁶¹ the Food Security Act of 1985; the Food, Agriculture, Conservation, and Trade Act of 1990; and the Pollution Prevention Act of 1990¹⁶² as examples of greater environmental and economic integration.¹⁶³ All of these laws introduce or foster greater environmental skills and perspectives into federal programs and governmental decisionmaking.

WRDA 92 also embodies this environmental and economic integration theme. The House and Senate public works committees, which wrote landmark laws such as ISTEA and WRDA 86, recognized the need to increase environmental considerations for Corps' projects and authorities. The result — WRDA92 — is a conscious decision on their part to interject a more integrated approach into Corps' programs and omnibus authorization bills. That theme is bound to resurface not only in future surface transportation/ISTEA bills but in WRDA bills, too.

Conclusion and Prospects

Environmental integration and an expanding environmental role for the Corps are two of WRDA 92's dominant themes. But will they cause immediate and fundamental change within the Agency itself? Will the Corps, as some critics suggest, become a "green brigade" of "eco-cowboys" or perhaps "eco-engineers," controlling or regulating polluters and pollutants just as EPA does under its current "command-and-control" authorities?¹⁶⁴ The answer is probably no — at least not for the near future.

For now, the Corps will likely continue to channel its energy, resources, and expertise into other, less combative environmental activities. As indicated by WRDA 92 and other recent WRDAs, Congress sees the Agency as less of a police force and more of an engineering, environmental management firm dispensing planning, design, construction, and financial assistance. Many in Congress believe [23 ELR 10390] the Corps already has more regulatory authority than it can handle under the § 404 wetlands permitting program.

Future WRDAs and related actions, however, will almost certainly expand the Corps' role in environmental protection. Other laws, such as the FWPCA and the ODA, will also continue to rely not only on the Corps' engineering expertise, but on its regulatory experiences as well. The question is no longer will the Corps continue to evolve into an environmental/developmental agency, but when?

The answer depends on many "wildcards." Virtually anything could happen if Congress and the administration follow through on recent proposals to reorganize the Corps and to elevate EPA to cabinet-level status as a "Department of the Environment." These efforts could ultimately reshape basic responsibilities of and relationships among the Corps, EPA, the National Oceanic and Atmospheric Administration, and other agencies.

Interested observers should watch congressional and regulatory developments closely in the coming year, particularly in areas involving agency budgets, Corps' reorganization, creation of a "Department of the Environment," and key issues such as wetlands and watersheds. This expanding "Corps of Environmental Engineers" may some day become the nation's premier water management, watershed protection, and environmental infrastructure agency.

1. Pub. L. No. 102-580, 106 Stat. 4797.

2. 102d Cong., 2d Sess. (1992).

3. 138 CONG. REC. H11826-51 (daily ed. Oct. 5, 1992).

4. 138 CONG. REC. S17850-56 (daily ed. Oct. 8, 1992). While debate of the bill was not particularly contentious or noteworthy, the process of getting H.R. 6167 to the Senate floor was. H.R. 6167 faced an uncertain future in the Senate during its final hours. Several senators had "holds" on the legislation — they were prepared to block consideration of the bill by objecting when the leadership of the Senate tried to bring it up under unanimous consent. At times, the unsubstantiated list of holds apparently included Sens. Howard Metzenbaum (D-Ohio) and Trent Lott (R-Miss.) (based on concerns over contaminated sediments provisions) and Sen. Jesse Helms (R-N.C.) (based perhaps on concerns over construction permits for jetties along North Carolina's Outer Banks). In the end, however, these and other concerns were satisfactorily resolved in order to let the bill reach the floor for final debate and passage.

5. The two major omnibus authorization bills that shaped the final contents of H.R. 6167 were H.R. 5754, 102d Cong., 2d Sess. (1992), and S. 2734, 102d Cong., 2d Sess. (1992). H.R. 5754 was introduced on August 3, 1992, 138 CONG. REC. H7256 (daily ed. Aug. 3, 1992), reported by the House Committee on Public Works and Transportation on August 12, 1992, H.R. REP. No. 842, 102d Cong., 2d Sess. (1992), 138 CONG. REC. H8144 (daily ed. Aug. 12, 1992), and passed the House on September 23, 1992, 138 CONG. REC. H9200-58 (daily ed. Sept. 23, 1992). S. 2734, the comparable Senate version, was introduced, and reported by the Senate Committee on Environment and Public Works on May 15, 1992, 138 CONG. REC. S6893 (daily ed. May 19, 1992), S. REP. No. 283, 102d Cong., 2d Sess. (1992), but never reached the Senate floor. Other miscellaneous bills and informal negotiations also contributed to the final contents of H.R. 6167.

6. See generally Benjamin H. Grumbles & Kenneth J. Kopocis, Water Resources Acts: Developing an Environmental Corps, 21 ELR 10308 (June 1991).

7. Pub. L. No. 99-662, 100 Stat. 4082.

8. Pub. L. No. 100-676, 102 Stat. 4012.

9. Pub. L. No. 101-640, 104 Stat. 4604.

10. 138 CONG. REC. H11850 (daily ed. Oct. 5, 1992) (statements of Reps. Roe, Nowak, Hammerschmidt, and Petri).

11. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA 003-071.

12. 33 U.S.C. §§ 1431-1445 (West 1985 & Supp. 1992).

13. See generally OFFICE OF THE CHIEF ENGINEER, U.S. ARMY CORPS OF ENGINEERS, THE CORPS IN PERSPECTIVE SINCE 1775 (1976).

14. See generally WRDA 86, Pub. L. No. 99-662, 100 Stat. 4082.

15. For a more detailed history of the Corps' regulatory program, see Grumbles & Kopocis, supra note 6, at 10308, n.1.

16. Rivers and Harbors Appropriations Act of 1899, ch. 425, 36 Stat. 593 (codified as amended at 33 U.S.C. §§ 401-418 (1988)). Sections 10 and 13 of the Act are two of the Agency's most relevant permitting provisions today in the context of wetlands and enforcement actions.

17. FWPCA § 404, 33 U.S.C. § 1344, ELR STAT. FWPCA 060.

18. ODA § 103, 33 U.S.C. § 1413 (1988).

19. A 100-year flood is an event that has a 1 percent chance of occurring in any given year. Federal flood insurance programs recognize the 100-year level of protection as the standard for providing flood protection. Housing and Community Development Act of 1974, Pub. L. No. 93-383, § 816, 88 Stat. 633, 739.

20. H.R. 5754, 102d Cong., 2d Sess. (1992).

21. See H.R. REP. NO. 842, 102d Cong., 2d Sess. (1992). Markup occurred on August 6, 1992.

22. H.R. Res. 570, 102d Cong., 2d Sess. (1992), the rule allowing for consideration of H.R. 5754, provided for modifications to the committee-reported bill in accordance with H.R. Rep. 868, 102d Cong., 2d Sess. (1992), the report accompanying the resolution. The modifications included authorization of the American River watershed project, to be considered as part of the original bill before the House. The adoption of the rule added the project to the bill.

23. 138 CONG. REC. H9243 (daily ed. Sept. 23, 1992).

24. Id. at H9243-44.

25. Id. at H9243.

26. Id. at H9248.

27. Id. at H9253.

28. See Department of Defense Appropriations Act for Fiscal Year 1993, Pub. L. No. 102-396, 106 Stat. 1876 (1992).

29. 106 Stat. at 4802.

30. 138 CONG. REC. S17853 (daily ed. Oct. 8, 1992) (statement of Sen. Graham); 138 CONG. REC. H9212 (daily ed. Sept. 23, 1992) (statement of Rep. Peterson).

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

32. For a discussion of controversies surrounding the Kissimmee project in the final round of negotiations over WRDA 90, see Grumbles & Kopocis, supra note 6, at 10319-20.

33. The project, however, was not without controversy. Some newspaper articles pointed out the project's high cost and the Agency's astonishing about-face in essentially undoing the original project. See, e.g., Jack Anderson & Michael Binstein, Two Faces of the Corps of Engineers, WASH. POST, Oct. 18, 1992, at C7. Rep. John Duncan (R-Tenn.) also criticized the project for being too costly and allegedly unrealistic. The Anderson-Binstein article quotes him as saying, "I think it is appropriate that the Kissimmee River project lies next to Disney World, because this project is straight out of fantasyland." Id.

Rep. Tom Lewis (R-Fla.), concerned about the new project's impact on the existing project's level of flood protection, successfully included an amendment to guarantee against decreased levels of protection. 138 CONG. REC. H9240-41 (daily ed. Sept. 23, 1992).

34. §§ 101-109, 100 Stat. at 4082-89.

35. WRDA 86, § 1135, 100 Stat. at 4251; see also 132 CONG. REC. H11528 (daily ed. Oct. 17, 1986) (floor debate on H.R. 6).

36. § 1135, 100 Stat. at 4251.

37. § 41, 102 Stat. at 4040.

38. § 304, 104 Stat. at 4634.

39. 106 Stat. at 4826.

40. This limitation is similar to other continuing authorities of the Corps, authorities that do not require specific congressional authorization for implementation and also contain per project dollar limitations. Flood Control Act of 1948, Pub. L. No. 80-858, § 205, 62 Stat. 1171, 1182 (current version at 33 U.S.C. § 701s (1988)); Flood Control Act of 1946, Pub. L. No. 79-526, § 14, 60 Stat. 641, 653; Rivers and Harbors Act of 1960, Pub. L. No. 86-645, § 107, 74 Stat. 480, 486 (current version at 33 U.S.C. § 577 (1988)).

41. 106 Stat. at 4826.

42. Id. at 4829.

43. Pub. L. No. 94-587, § 145, 90 Stat. 2917, 2931.

44. § 933, 100 Stat. at 4197.

45. Implementation of the Water Resources Development Act of 1986, the Administration's Proposed Water Resources Development Litigation, and Proposed Water Resources Projects Which Have Received a Favorable Report of the Chief Engineers: Hearings Before the Subcomm. on Water Resources of the House Comm. on Public Works and Transportation, 100th Cong., 2d Sess. 40-41 (1988) [hereinafter WRDA 86 Hearings] (statement of Rep. Bill Grant).

46. WRDA 88, § 35, 102 Stat. at 4031.

47. See generally Water Resources Development Act of 1992 and the Reorganization of the U.S. Army Corps of Engineers: Hearings Before the Subcomm. on Water Resources of the House Comm. on Public Works and Transportation, 102d Cong., 2d Sess. (1992) [hereinafter WRDA 92 Hearings].

48. 106 Stat. at 4829.

49. Relevant existing authorities include the aquatic plant control program, established in § 104 of the Rivers and Harbors Act of 1958, Pub. L. No. 85-500, § 104, 72 Stat. 297, 300, which authorizes the Corps to participate in various activities to remove or control noxious plants from waterbodies, and various provisions in the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990.

50. S. REP. NO. 523, 101st Cong., 2d Sess. (1990).

51. 106 Stat. at 4839.

52. The Secretary of the Army (working through the Corps) must consult with the Administrator of EPA, the Director of the U.S. Fish and Wildlife Service, the Governor of New York, and the Mayor of New York City. § 302, 106 Stat. at 4839.

53. 16 U.S.C.A. §§ 4701-4751 (West Supp. 1993).

54. The House-passed version of H.R. 5754 also included authority for the Secretary of Transportation to issue ballast water exchange regulations for other waterbodies "ecologically connected" to the Great Lakes to prevent further zebra mussel infestation through "back door routes." 138 CONG. REC. H9232 (daily ed. Sept. 23, 1992). Concerns about the geographic scope of the regulations, however, led members to omit the provisions from the bill's final version, H.R. 6167.

55. 106 Stat. at 4816.

56. Id. at 4855.

57. Such battles took place during debate over wetlands provisions in the Food, Agriculture, Conservation, and Trade Act of 1990, Pub. L. No. 101-624, §§ 1421-1424, 104 Stat. 3359, 3572-76 (codified as amended at 16 U.S.C.A. §§ 3821-3823 (West 1985 & Supp. 1993), and in the Food Security Act of 1985, Pub. L. No. 99-198, §§ 1221-1223, 99 Stat. 1354, 1507-08 (codified as amended at 16 U.S.C.A. §§ 3821-3823 (West 1985 & Supp. 1993)). The wetlands conservation program in the 1985 Act, commonly known as "Swampbuster," disqualifies farmers from receiving certain U.S. Department of Agriculture program benefits if they produce an agricultural commodity on wetlands converted after December 23, 1985. Id.

58. WRDA 92 Hearings, supra note 47.

59. Id.

60. For a discussion of wetlands-related projects in WRDA 90, see generally Grumbles & Kopocis, supra note 6, at 10315-16. While it never addresses the Corps' wetlands regulatory program, WRDA 92 mentions wetlands and marshes 25 times in declaring goals and authorizing projects.

61. 106 Stat. at 4814.

62. Id. at 4826.

63. Other examples of wetlands-related provisions in WRDA 92 include § 321, 106 Stat. at 4848, which relates to a wetlands project for Phoenix, Arizona; § 345, 106 Stat. at 4858, which relates to bank stabilization and marsh creation in Louisiana; and § 346, 106 Stat. at 4858, which relates to saltmarsh restoration in coastal Connecticut.

64. Pub. L. No. 102-575, § 3601, 106 Stat. 4600, 4739.

65. 106 Stat. at 4814.

66. Id.

67. § 204(a), 106 Stat. at 4826.

68. § 204(b)(i), 106 Stat. at 4827 (emphasis added).

69. § 204(c), 106 Stat. at 4827.

70. § 204(d), 106 Stat. at 4827.

71. See, e.g., Reauthorization of the Federal Water Pollution Control Act (Protection of Wetlands): Hearings Before the Subcomm. on Water Resources of the House Comm. on Public Works and Transportation, 102d Cong., 1st Sess. 468-69 (1991) (statement of Rep. Greg Laughlin).

72. Examples of special continuing authorities include the Flood Control Act of 1948, § 205, 62 Stat. at 1182, which relates to flood control projects; Rivers and Harbors Act of 1960, § 107, 74 Stat. at 486, which relates to navigation projects; and Rivers and Harbors Act of 1962, Pub. L. No. 87-874, § 103, 76 Stat. 1173, 1178 (current version at 33 U.S.C. § 426g (1988)), which relates to beach erosion control.

73. 106 Stat. at 4818.

74. Id. at 4839.

75. Id. at 4840.

76. Id. at 4845.

77. Id. at 4849.

78. Id. at 4850.

79. Id. at 4852.

80. Id. at 4856.

81. For a discussion of environmental infrastructure and water quality-related provisions and additional analysis of the watershed-based, ecosystem protection theme in WRDA 92, see infra notes 90 and 91 and accompanying text.

82. Alan B. Nichols, Wetlands Are Getting Respect, WATER ENV'T TECH., Nov. 1992, at 46, 51.

83. See, e.g., 139 CONG. REC. E57 (daily ed. Jan. 5, 1993) (statement of Rep. Edwards on introduction of H.R. 350); see also H.R. 404, 102d Cong., 1st Sess. (1991); H.R. 1330, 102d Cong., 1st Sess. (1991); H.R. 4255, 102d Cong., 2d Sess. (1992). Phase III Report, A National Water Agenda for the 21st Century, prepared by Water Quality 2000, recommends a comprehensive, watershed-based approach to planning and managing for water quality and quantity. Such an approach could certainly involve the Corps and other key federal water agencies. WATER QUALITY 2000, PHASE III REPORT, A NATIONAL WATER AGENDA FOR THE 21ST CENTURY 32-39 (1992).

84. WRDA 86 Hearings, supra note 45, at 3 (statement of Rep. Arlan Stangeland).

85. WRDA 90, § 417, 104 Stat. at 4652.

86. 106 Stat. at 4833.

87. § 217(b), 106 Stat. at 4833.

88. WRDA 92 Hearings, supra note 47, at 6.

89. WRDA 92's primary provisions on wastewater reclamation and reuse are § 217, 106 Stat. at 4833, authorizing four projects throughout California; and § 218, 106 Stat. at 4834, authorizing a project in the San Jose, California, area. The Reclamation Projects Authorization and Adjustment Act of 1992 also contains various wastewater reclamation and reuse authorities for the Corps and the U.S. Department of the Interior.

90. See, e.g., CENTER FOR COMMUNITY CHANGE, THROUGH THE REVOLVING DOOR: AN ANALYSIS OF RURAL WASTEWATER FACILITY FINANCING (1991).

91. 106 Stat. at 4835.

92. S.J. Res. 181, Pub. L. No. 101-424, 104 Stat. 914 (1990), declared 1992 as the "Year of Clean Water" in celebration of the FWPCA's 20th anniversary.

93. Environmental infrastructure provisions in S. 2734, 102d Cong., 2d Sess. (1992) and H.R. 5754, 102d Cong., 2d Sess. (1992) caused extreme concern in the administration and in the Office of the Assistant Secretary of the Army (Civil Works). These provisions, because of their multibillion dollar price tags and far-reaching programmatic implications, prompted frequent talk of a presidential veto. See OFFICE OF MANAGEMENT AND BUDGET, STATEMENT OF ADMINISTRATION POLICY (Aug. 10, 1992) (copy on file with authors).

94. For example, WRDA 92 does not directly address issues involving the Clean Air Act, the Solid Waste Disposal Act, and the Endangered Species Act — all statutes are under the jurisdiction of different congressional committees.

95. § 336, 106 Stat. at 4855 (relating to Lockwoods Folly River, Brunswick County, North Carolina).

96. § 110, 106 Stat. at 4817 (relating to the Outer Harbor in Buffalo, New York).

97. § 347, 106 Stat. at 4858 (relating to hazardous waste in the vicinity of Winfield Lock and Dam, West Virginia).

98. § 114(a), 106 Stat. at 4817 (relating to the Central Basin groundwater project in California).

99. 106 Stat. at 4806.

100. Id. at 4844.

101. Id. at 4847.

102. Id. at 4841.

103. Id. at 4862.

104. For further information on EPA's stormwater program, see Reauthorization of the Federal Water Pollution Control Act: Hearings Before the Subcomm. on Water Resources of the House Comm. on Public Works and Transportation, 102d Cong., 1st Sess. 913-1054 (1991).

105. § 364(1), 106 Stat. at 4862.

106. FWPCA § 402(p)(1), (2)(D), (4), 33 U.S.C. § 1342(p)(1), (2)(D), (4), ELR STAT. FWPCA 060. These provisions, and others, constitute EPA's "Phase I" approach to regulating stormwater. Discharges "associated with industrial activity" and discharges from municipalities with populations of 100,000 or more must obtain permits by various dates specified in § 402(p) and EPA's regulations. Other discharges composed entirely of stormwater and discharges from municipalities with populations of less than 100,000 are to be addressed by EPA's "Phase II" permitting approach.

107. § 364(2), 106 Stat. at 4862.

108. For further information, see EPA Request for Comments on Alternatives for Phase II Stormwater Permit Program, 57 Fed. Reg. 41344 (1992).

109. See H.R. 6004, 102d Cong., 2d Sess. (1992); H.R. REP. NO. 921, 102d Cong., 2d Sess. (1992); and 138 CONG. REC. H9789-90 (daily ed. Sept. 29, 1992) (statement of Rep. Hammerschmidt). House and Senate negotiators subsequently included a modified version of H.R. 6004 in H.R. 6167, which became WRDA 92. 138 CONG. REC. H11850 (daily ed. Oct. 5, 1992) (statement of Rep. Hammerschmidt).

110. See sources cited supra note 109.

111. Another significant provision, while not directly amending the FWPCA, passed as part of the National Oceanic and Atmospheric Administration Authorization Act of 1992, Pub. L. No. 102-567, § 501, 106 Stat. 4270, 4293. Section 501 amends the ODA by adding a new Title V, establishing a national coastal monitoring program. This comprehensive, new coastal waters program, jointly implemented by EPA and the National Oceanic and Atmospheric Administration, will impact various FWPCA programs. In particular, Title V requires that compliance monitoring pursuant to FWPCA § 402's permits be consistent with guidelines issues under the new law. Id.

112. Contaminated Sediments: Hearings Before the Subcomm. on Water Resources of the House Comm. on Public Works and Transportation, 101st Cong., 2d Sess. 9 (1990) (statement of G. Edward Dickey, Assistant Secretary of the Army). The Corps estimates that another 100 to 150 million cubic yards of sediments are dredged and disposed of each year pursuant to Corps-issued permits. Id.

113. The Subcommittee on Water Resources of the House Committee on Public Works and Transportation has held approximately nine days of hearings on the issue of contaminated sediments in the past three Congresses.

114. See NATIONAL RESEARCH COUNCIL, CONTAMINATED MARINE SEDIMENTS: ASSESSMENT AND REMEDIATION (1989).

115. Id.

116. Id.

117. See, e.g., FWPCA §§ 301, 402, 403, 33 U.S.C. §§ 1311, 1342, 1343, ELR STAT. FWPCA 028, 057, 060.

118. See, e.g., ODA §§ 102, 103, 33 U.S.C. §§ 1412, 1413 (1988).

119. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA 007-075.

120. Section 105 of the Superfund Amendments and Reauthorization Act of 1986 requires the hazard ranking system to be revised to include criteria for "the damage to natural resources which may affect the human food chain and which is associated with any release or threatened release." Pub. L. No. 99-499, § 105, 100 Stat. 1613, 1625.

121. Pub. L. No. 100-04, 101 Stat. 7.

122. § 104, 101 Stat. at 11. EPA's authorities were included in amendments to EPA's existing FWPCA § 118 Great Lakes program, under which EPA established the Assessment and Remediation of Contaminated Sediments program. H. REP. NO. 1004, 99th Cong., 2d Sess. 94-96 (1986).

123. 104 Stat. at 4639.

124. Id. at 4640.

125. Id.

126. Id.

127. Rep. Jimmy Hayes (D-La.) has long pushed for the beneficial use of dredged material in Louisiana to preserve eroding wetlands and increase wildlife habitat. Several provisions, including § 204, 106 Stat. at 4826, reflect his input. Many other provisions address contaminated sediment issues, as well, including §§ 308 and 334, 106 Stat. at 4841 and 4852 (Baltimore dredged material use in the Chesapeake Bay); § 327, 106 Stat. at 4851 (availability of sediment information); § 356, 106 Stat. at 4860 (sediment management in Toledo Harbor); and § 405, 106 Stat. at 4863 (sediments decontamination technology).

128. 106 Stat. at 4826.

129. § 204(b), 106 Stat. at 4826.

130. Letter from Nancy P. Dorn, Assistant Secretary of the Army (Civil Works), to Thomas S. Foley, Speaker of the U.S. House of Representatives (Mar. 12, 1992) (transmitting a draft of proposed legislation entitled Water Resources Development Act of 1992).

131. 106 Stat. at 4864.

132. Title V is based on earlier versions of S. 1170, 102d Cong. 1st Sess. (1991); S. 2734, 102d Cong., 2d Sess. (1992); and end-of-the-session negotiations among the Senate, the Corps, EPA, port authorities, environmental groups, and others.

133. 106 Stat. at 4864.

134. § 503, 106 Stat. at 4865.

135. 106 Stat. at 4866.

136. This proved to be one of the most contentious aspects of WRDA 92's amendments to the ODA because of jurisdictional and programmatic concerns among EPA, the Corps, and others. Some feared significant changes could lead to the problems, real or perceived, surrounding the FWPCA's controversial § 404 wetlands permitting program — particularly EPA § 404(c)'s veto authority Corps-issued permits.

137. The provision prompted concern that EPA could unreasonably delay the beginning of its 45-day review period by requesting an unnecessary amount of information. Rep. John Paul Hammerschmidt (R-Ark.), however, subsequently stated that congressional intent was not to allow EPA "to drag out a decision by claiming that they need additional information." 138 CONG. REC. E3327 (daily ed. Oct. 29, 1992).

138. 33 U.S.C.A. § 1413(d) (West 1986 & Supp. 1991).

139. 106 Stat. at 4867.

140. 33 U.S.C.A. § 1416 (West 1986 & Supp. 1991).

141. 106 Stat. at 4867. ODA § 106(d)(2), as amended by WRDA 92 § 505, applies to federal projects, and restricts states from adopting or enforcing more stringent requirements if the EPA Administrator finds that the requirement is arbitrary or capricious or not scientifically credible, or if the Administrator finds that the state requirement is not being applied generally and in a nondiscriminatory fashion, and the Secretary of the Army concurs in this finding.

142. 106 Stat. at 4868.

143. WRDA 92's § 506 amends ODA §§ 102 and 103. 33 U.S.C.A. §§ 1412-1413 (West 1986 & Supp. 1991).

144. See, e.g., 138 CONG. REC. S17851-52 (daily ed. Oct. 8, 1992) (statement of Sen. Mitchell).

145. 106 Stat. at 4869.

146. 33 U.S.C.A. § 1414 (West 1986 & Supp. 1991).

147. For onesenator's interpretation of congressional intent, see supra note 144.

148. 106 Stat. at 4869.

149. 33 U.S.C.A. § 1415 (West 1986 & Supp. 1991).

150. 106 Stat. at 4870.

151. 33 U.S.C.A. § 1420 (West 1986 & Supp. 1991).

152. See, e.g., Energy and Water Development Appropriations Act, 1993, Pub. L. No. 102-377, tit. I, 106 Stat. 1315 (1992) (provides appropriations for the Corps); see also H.R. REP. 866, 102d Cong., 2d Sess. (1992) (conference report accompanying the Act); OFFICE OF THE ASSISTANT SECRETARY (CIVIL WORKS), U.S. DEP'T OF THE ARMY, FY'93 CIVIL WORKS BUDGET REQUEST FOR THE U.S. ARMY CORPS OF ENGINEERS (Jan. 1992) (copy on file with authors); OFFICE OF THE PRESIDENT, BUDGET OF THE U.S. GOVERNMENT, H.R. DOC. NO. 178, 102d Cong., 2d Sess., app. 1, at 407-19 (1992).

153. See, e.g., Memorandum from Lieutenant General H.J. Hatch, Chief of Engineers, Strategic Direction for Environmental Engineering (Feb. 14, 1990) to District Engineers; and, for a more skeptical view, Anderson & Binstein, supra note 33.

154. Grumbles & Kopocis, supra note 6, at 10320.

155. U.S. ARMY CORPS OF ENG'RS, WHY REORGANIZE 11 (1992).

156. Id. at 11.

157. For watershed-based provisions, see, e.g., FWPCA §§ 101, 118, 208, 314, 319, 320, 33 U.S.C. §§ 1251, 1268, 1288, 1324, 1329, 1330, ELR STAT. FWPCA 003, 010, 023, 050, 052, 055.

158. Pub. L. No. 102-240, 105 Stat. 1914.

159. ISTEA § 1007 authorizes the use of federal transportation funds for wetlands mitigation efforts, including mitigation banks, if consistent with FWPCA § 404(b)(1)'s guidelines and other applicable laws. 105 Stat. at 1927. Section 1068 addresses permit application deadlines for stormwater discharges associated with industrial activity that are owned or operated by municipalities. Id. at 2007.

160. Terry Davies & Francis Irwin, The Institutional Challenge, EPA J., May/June 1992, at 53, 54.

161. Pub. L. No. 102-486, 106 Stat. 2776.

162. 42 U.S.C.A. §§ 13101-13109 (West Supp. 1992).

163. Davies & Irwin, supra note 160.

164. Warren T. Brookes, Ambush of the Green Guards, WASH. TIMES, Mar. 14, 1991, at G1.