CRS-133 



of delay resulting from procedural review requirements, such as that for con- 

 sultation among Federal and State agencies over permit applications. Congress 

 took no action on these bills. 



A bill passed by the House but ultimately not enacted (H.R. 85), contained 

 an amendment to section 404 to "clarify" that the authority to determine "navi- 

 gable waters" — and the jurisdiction of the section 404 program — rests with the 

 Secretary of the Army for purposes of enforcement, permitting, and defining 

 regulatory exemptions. This provision, had it been enacted, would have re- 

 versed a 1979 advisory opinion of U.S. Attorney General Benjamin Civiletti 

 which held that EPA, not the Corps of Engineers acting for the Secretary of 

 the Army, has the final responsibility to determine what constitutes "navigable 

 waters" under section 404. The reasoning for the Civiletti ruling was said 

 to rely on the "structure of the [Clean Water] Act as a whole," rather than 

 explicit support either in the statute or the legislative history. 186 / 



In mid-1980 the Senate Environment and Public Works Subcommittee on Envi- 

 ronmental Pollution held two days of oversight hearings on implementation of 

 the section 404 program. The focus of these hearings was on difficulties 

 in defining wetland areas and resource values to be protected from industrial 

 development in Alaska. 187 / Witnesses criticized in their testimony poor admin- 

 istration of the program as manifested in delays in permit processing and per- 

 mit requirements for de minimus activities in marginal wetland areas. 186 / 



186/ Civiletti Rules EPA Has Final Say on What Constitutes "Navigable 

 Waters." Environment Reporter, v. 10, no. 23, Oct. 5, 1979. pp. 1278-1279. 



187 / According to data compiled in 1975 by the Corps, Alaska contains 

 more than 67 million acres of wetlands, about 45 percent of the remaining 

 national total. 



188/ U.S. Congress. Senate. Committee on Environment and Public Works. 

 Subcommittee on Environmental Pollution. Implementation of Certain Sections of 

 the Clean Water Act. Hearings, 96th Cong., 2d sess., June 23, 24, and July 1, 

 1980. Washington, U.S. Govt. Print. Off., 1980. (Serial No. 96-H55). p. 1-151, 

 257-376. 



