STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
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STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
(Senate - May 25, 1995)
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STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. JOHNSTON (for himself, Mr. Faircloth, Mr. Breaux, Mr.
Pressler, Mr. Dorgan, Mr. Lott, Mr. Dole, Mr. Murkowski, and
Mr. Heflin)
S. 851. A bill to amend the Federal Water Pollution Control Act to
reform the wetlands regulatory program, and for other purposes; to the
Committee on Environment and Public Works.
the wetlands regulatory reform act of 1995
Mr. JOHNSTON. Mr. President, I am pleased today to introduce, along
with several of my colleagues, the Wetlands Regulatory Reform Act of
1995. I am particularly pleased to have as the lead cosponsor Senator
Faircloth, the chairman of the subcommittee of the Environment and
Public Works Committee that has jurisdiction over wetlands. Our bill
will reform the section 404 ``wetlands'' permitting program under the
Clean Water Act by introducing balance, common sense, and reason to a
Federal program that is causing unnecessary problems for my
constituents--and I believe for many of our citizens around the Nation.
In the closing days of the last Congress, I introduced a wetlands
bill,
S. 2506, so that my colleagues and other interested persons could
review the legislation and recommend improvements prior to
reintroduction in the 104th Congress. I appreciate the efforts of those
who took the time over the last few months to provide suggestions, many
of which are reflected in the current bill.
Mr. President, the current section 404 regulatory program has been
designed less by the elected representatives of the people than by
officials of the Corps of Engineers and the Environmental Protection
Agency and by Federal judges. In 1972, the Congress enacted the Federal
Water Pollution Control Act. Section 404 of that Act prohibited
``discharges of dredged or fill material'' into ``waters of the United
States;'' without a permit from the Secretary of the Army. At the time
of passage, ``waters of the United States'' was thought to be limited
to the navigable waters of the Nation.
From this narrow beginning has come a rigid regulatory program that
is devaluing property and preventing the construction of housing, the
extension of airport runways, the construction of roads--often on lands
that rarely, if ever, have water on the surface but which,
nevertheless, are viewed as ``wetlands'' within the definition of
``waters of the United States''. And I might add, Mr. President, that
75 percent of the land that is being regulated through the Section 404
program as ``wetlands'' or ``waters of the United States'' is
privately-owned property.
I do not believe that we, in Congress, intended for the Section 404
program to become a rigid, broad Federal land use program that affects
primarily privately-owned property. Yet, the evidence is clear to me
that the Section 404 program has become just that. Therefore, Mr.
President, I believe that the time has come for the Congress to reform
this program to focus Federal regulatory authority on those wetlands
that are truly important functioning wetlands, to ensure that our
citizens can obtain permits through a reasonable process within a
reasonable period of time, and to ensure that this program is not
denying people the use of their property unless there is an overriding
reason to do so.
Mr. President, the Wetlands Regulatory Reform Act of 1995 proposes
several key changes to the current 404 program:
First, the bill provides a statutory definition of a jurisdictional
wetland. This is, of course, the crucial threshold question: what
wetlands are subject to Federal regulation? And yet, one can read the
entire Clean Water Act without finding the answer to this question.
Instead, the answer currently lies only in a manual prepared by the
Corps of Engineers in 1987. I think it is high
time that Congress make an explicit judgment on this matter and set
forth a definition in the statute itself.
The definition in our bill is essentially this: there must be water
on or above the surface of the ground for at least 21 consecutive days
during the growing season. This is virtually the same as the definition
in
H.R. 961, which passed the House last week.
During the debate in the House, it was claimed by opponent of the
bill that this definition excludes a huge portion of the wetlands that
are currently regulated. However, the claims varied widely, and did not
appear to be based on solid evidence. Although I think that these
claims are exaggerated I want to make sure that our definition does not
exclude wetlands that are truly important. Therefore, I intend to write
to the Clinton administration to ask them to provide the best evidence
available regarding the effect of our definition on the amount and
nature of wetland regulated, both nationwide and in Louisiana.
Second, this legislation will require that Federal jurisdictional
wetlands be classified into three categories: high, medium, and low
valued wetlands, based on the relative wetlands functions present.
Today, the Section 404 program regulates all wetlands equally rigidly,
whether the wetland is a pristine, high-value wetland, a wet spot in a
field, or a ``wetland'' in the middle of an industrial area. This
treatment of wetlands defies logic and common sense.
My legislation will require the Corps of Engineers to classify
wetlands based on their functions, and then regulate them accordingly.
Class A, high-value, wetlands will be regulated under the current
``sequencing'' methodology, which first seeks to avoid adverse effects
on wetlands, then attempts to minimize those adverse effects that
cannot be avoided, and finally calls for mitigation of any adverse
effects that cannot be avoided or minimized. Class B, medium-value,
wetlands will be regulated under a balancing test, which does not
require the avoidance step. Finally, Class C, low-value, wetlands will
not be regulated by the Federal Government, but may be regulated by the
State if they so choose.
Third, this legislation removes the dual agency implementation of
this program, an aspect of the program that is particularly confusing
and troublesome to our constituents. Today, the Army Corps of Engineers
issues Section 404 permits, but the Environmental Protection Agency may
veto the decision of the Corps to issue the permit. Although EPA
actually exercises its veto power infrequently, I understand that veto
is threatened often, causing undue delays and repeated multi-agency
consultations. My legislation removes the EPA veto, and instead simply
requires the Corps to consult with EPA before acting.
Similarly, current law allows the EPA to veto permit decisions made
by State that have assumed responsibility for the section 404 program.
Our bill makes two changes to this regime. First, the Corps, instead of
the EPA, becomes responsible for overseeing States that have assumed
responsibility for the program. This is done in order to consolidate
responsibility in a single Federal agency. Second, the bill deletes the
veto authority as an unnecessary interference with State administration
of the program. If the Corps determines that the State is
not implementing the program appropriately, the Corps has the
authority, which my bill does not change, to withdraw approval of the
State program and return the program to Federal hands. But as long as
the State is in charge, its individual permit decisions should not be
subject to veto from Washington.
Fourth, mitigation banking is authorized and encouraged by the bill
as a sound means to return wetlands functions to the environment. There
are a number of mitigation banking projects now around the Nation. The
experience with these projects is proving that mitigation banking holds
great promise as a means of restoring, enhancing, reclaiming, and even
creating wetlands to offset the wetlands disturbances that are
permitted under the section 404 program. Mitigation banking is the type
of market driven mechanism that I believe we must incorporate in our
national environmental laws if we are to achieve our national
environmental goals.
Finally, this legislation will require that steps be taken to provide
notice to our citizens regarding the location of Federal jurisdictional
wetlands. Remarkably, Mr. President, the Federal Government is
regulating over 100 million acres of land, over 75 million acres of
which is privately owned, yet there are no maps posted to inform
citizens about the location of these lands. Perhaps this would not be a
problem if [[Page
S7499]] Federal jurisdictional wetlands were only
swamps, marshes, bogs, and other such areas that are wet at the surface
for a significant portion of the year, and therefore relatively easy
for our citizens to identify. But land that is dry at the surface all
year long can also be a Federal jurisdictional wetland.
Without maps and other notices, only the most highly trained
technicians among our citizens can identify the subtle differences
between lands that are not subject to the section 404 program and those
that are. Thus, many people have bought land for home sites, only to
find out later that they have bought a Federal jurisdictional wetland
and cannot obtain a permit to build their house. We owe our citizens
better than that.
My legislation will require the Corps of Engineers to immediately
post notices about the section 404 program near the property records in
the courthouses around the Nation, and to post maps of Federal
jurisdictional wetlands as those maps become available, including the
National Wetlands Inventory maps that are being developed by the
National Biological Survey.
Mr. President, there are many other improvements of the current
program in my legislation, including time limits on the issuance of
section 404 permits, an administrative appeal process, and the
designation of the Secretary of Agriculture to delineate wetlands on
agricultural lands.
As I mentioned, our bill has virtually the same definition of wetland
as the House-passed clean water bill,
H.R. 961. Although there are
several other comparable provisions in the two bills, our legislation
varies from the House-passed bill in at least one important respect.
Our legislation does not provide a mechanism for obtaining compensation
from the Federal Government when private property is taken through the
operation of the 404 program. I believe that the impact of the section
404 program on private property rights is a very important issue.
However, I also believe that compensation is an extraordinarily
complex and controversial issue that overarches all environmental
regulations, not just those relating to wetlands. Thus, rather than
attempting to resolve the compensation issue in this bill, we have
chosen to include provisions in the legislation that will help ensure
that the Section 404 Program does not result in takings of private
property in the first place. Therefore, in addition to the many
provisions of the bill that will make the wetlands program more
balanced and rational, it also directs Federal officials to implement
the program in a manner that minimizes the adverse effects on the use
and value of privately-owned property.
I would be remiss if I did not comment on the recently-issued study
of wetlands by the National Academy of Sciences. The report reaches
several conclusions that are reflected in this legislation.
Specifically, it recommends the consolidation of all wetlands
regulatory functions into a single Federal agency, a change that is
central to our legislation. It also recommends that regional variations
in wetlands be taken into account, which our bill does.
Some have suggested that the NAS study recommends against a
classification scheme such as is included in our bill, but I do not
read it that way. The report states that:
Some groups have suggested the creation of a national
scheme that would designate wetlands of high, medium, or low
value based on some general guidelines involving size,
location, or some other factor that does not require field
evaluation. It is not possible, however, to relate such
categories in a reliable way to objective measures of
wetlands functions, in part because the relationships between
categories and functions are variable and in part because we
still have insufficient knowledge of wetlands functions.
(Emphasis added.)
I read the report to warn against nationwide classification schemes
that do not take into account site-specific considerations, a point on
which I heartily agree. That is why our classification process is
initiated only in connection with the consideration of a permit
application or upon a request for classification of a specific piece of
property. The particular piece of property is classified after
considering site-specific factors, such as the significance of the
wetland ``to the long-term conservation of the aquatic system of which
the wetland is a part,'' and the ``scarcity of functioning wetlands
within the watershed or aquatic system.'' Thus, I do not see an
inconsistency between the NAS report and our bill with respect to
classification.
Even if the NAS study could be interpreted as expressing concern
about any classification scheme for wetlands, I would suggest that
those concerns should not be dispositive. Scientists and lawmakers
necessarily approach matters differently. Scientists are in the
business of achieving a more perfect state of knowledge, while
lawmakers are in the business of drawing regulatory lines and
allocating societal resources based on the information available. While
a scientist might prefer to wait for more information before
distinguishing among wetlands, Congress cannot wait because the present
regulatory scheme, which makes no distinctions among wetlands, is so
clearly ineffective at balancing wetlands protection against other
policy considerations.
Mr. President, reforming the wetlands regulatory program will be one
of my highest priorities in this Congress. I look forward to working
with my colleagues and others in an effort to make the program work
both for the environment and for our constituents.
Mr. BREAUX. Mr. President, I join with my colleague from Louisiana,
Senator J. Bennett Johnston, in introducing legislation today which
makes major reforms in Sec. 404 of the Federal Water Pollution Control
Act, also known a the Clean Water Act.
We all know Sec. 404 to be the wetlands regulatory program which has
caused so much controversy and so many problems. I have heard countless
complaints that the program has been implemented in an excessive and
restrictive manner for years, imposing unfair hardship on landowners,
businesses and local governments.
It is long overdue that the Sec. 404 program be reformed. It is long
overdue that the program be balanced, reasonable and fair. This bill
attempts to achieve those objectives.
One of the major features of the bill is its wetlands classification
system. I wholeheartedly endorse classifying and regulating wetlands by
the their value and function.
All wetlands are not equal in value and function, yet for years they
have been regulated that way. That way is wrong and we intend to change
it.
We do not have a wetlands classification system in current law. To be
fair and to strike balance and reason in wetlands regulation we must
identify and regulate according to the very real differences in
wetlands value and function.
For the first time, wetlands would be divided into three classes of
critical significance, Class A, significant, Class B, and marginal
value, Class C. Each class is defined to distinguish the different
values and functions found in wetlands.
Classes A and B wetlands would be regulated because they provide the
most valuable functions. A public interest test would have to be met
when regulating these two classes. Class C wetlands would not be
regulated because they are of marginal value.
Other major provisions of the bill include a definition of
jurisdictional wetlands, expansion of wetlands regulatory exemptions
and an expansion of regulated activities. Single agency program
jurisdiction and administration by the Corps of Engineers is
established.
Also included in the bill are exclusion of prior converted cropland
from Sec. 404 regulation, USDA delineation of wetlands on agricultural
land, and authorization of State permitting programs, and
administrative appeals program and a mitigation banking program. Public
information is required to be published about wetlands and their
regulation at the Federal and local levels.
The bill's policies attempt to strike a very simple and sound premise
in regulatory policy, that is, balance, reason and, most importantly,
fairness shall prevail.
These policies attempt to balance respect for the environment with
respect for property owners, in whose possession lies an estimated 75
percent of our wetlands in the lower 48 states.
In all that we do with regard to wetlands policy, we must always be
mindful and respectful of the fact that most [[Page
S7500]] of our
wetlands in the lower 48 States are privately owned.
Thank you, Mr. President, for this time to announce my support for
and sponsorship of the Wetlands Regulatory Reform Act of 1995.
I hope the Senate can begin hearings on the legislation and hear
solid testimony so that a final bill can be crafted.
Mr. PRESSLER. Mr. President, today I join Senator Faircloth and
Senator Johnston and others, in introducing legislation that addresses
a major concern of landowners, farmers, businesses, and average
citizens throughout the United States. The concern is wetlands.
Just last week, during consideration of the Clean Water Act, the
House of Representatives passed major revisions to our Federal wetlands
laws. It is now the Senate's turn to address this major issue. As
Chairman of the Senate Subcommittee on Wetlands, Senator Faircloth will
direct Senate efforts to bring much needed common sense to our Federal
wetlands laws. Very few Federal issues are more critical to South
Dakota property owners. Therefore, I look forward to working with
Senator Faircloth in making sure reforms are adopted during this
Congress.
Mr. President, current wetlands law is too broad. It is causing too
many problems throughout the country. Congress has never passed a
comprehensive law defining wetlands. Without such a definition, Federal
agencies have been recklessly pursuing control over private property in
the name of saving wetlands. The time to act has come.
Earlier this year, I introduced
S. 352, The Comprehensive Wetlands
Conservation and Management Act of 1995. A number of the provisions in
my legislation already have been adopted by the House, as part of its
reforms on wetlands. Also, I am pleased that most of
S. 352 is
incorporated in the bipartisan bill we are introducing today.
By introducing a bipartisan bill, one message is made clear:
Meaningful wetlands reform must be adopted this year.
One issue I reserve the right to address during future Senate debate
on wetlands reform is adequate compensation for private property
owners. Whenever the Federal Government takes land away from private
property owners, or significantly reduces the use of private property,
compensation is in order. There is no compensation provision in the
bill being introduced today. However, I intend to raise this issue
during floor debate on this subject. Compensation to private property
owners should be included in meaningful wetlands reform.
The primary purpose of today's legislation is to clearly define
wetlands in law and regulation. What the Federal Government should, or
should not be doing in this area needs to be clearly defined.
In addition, efforts must be made to ensure that any fine or penalty
is in line with violations. Many violations are incidental and can be
quickly repaired. Penalties should fit the crime. The bill we are
introducing today would set that kind of standard.
The bill would require certain criteria to be met and verified before
an area can be regulated as a wetland. Such an approach would be more
reliable in identifying true wetlands. It would prevent field
inspectors from mistakenly classifying as wetland dry, upland areas
that drain effectively. It also would eliminate a major source of
confusion and abuse caused by current regulations.
This bill also would give States and local governments the authority
to tailor the wetlands regulatory program to their own special
circumstances. This is greatly needed.
The bill also would clarify current agricultural exemptions and
provide that the Secretary of Agriculture shall identify agricultural
lands that are wetlands.
Mr. President, the time has come for the Senate to adopt wetlands
reform. Only through the kind of commonsense and balanced approach
proposed in this bill can the Nation's agricultural, business,
environmental, and individual interests be properly addressed.
Mr. President, thousands of South Dakotans have written, called, or
visited with me about the lack of definition of wetlands and the
haphazard rules and regulatory overkill taken by the Federal
Government. They rightly are concerned about the impact of the current
system on their ability to run their farms and businesses. South
Dakotans are law-abiding citizens who stand for fairness and balance in
the enforcement of the law. South Dakotans are conscientious stewards
of the land they have cared for and cultivated for generations. They
believe the time has come for a fair, balanced approach that protests
the environment as well as private property. I believe the bill we are
introducing today responds to this call for fairness from South Dakota
and across America.
Action on this issue is essential. I urge my colleagues to take a
close look at this bill and join in supporting it.
______
By Mr. DOMENICI (for himself, Mr. Craig, Mr. Brown, Mr. Campbell,
Mr. Hatch, Mr. Bennett, Mr. Burns, Mr. Simpson, Mr. Thomas, Mr.
Kyl, Mr. Pressler, Mr. Kempthorne, Mr. Conrad, Mr. Dorgan, Mr.
Dole, and Mr. Gramm):
S. 852. A bill to provide for uniform management of livestock grazing
on Federal land, and for other purposes; to the Committee on Energy and
Natural Resources.
the livestock grazing act of 1995
Mr. DOMENICI. Mr. President, over the past several years, a series of
legislative and administrative actions have haunted the Federal lands
ranchers. A cloud has been hanging over their livelihoods. Today, with
the introduction of the Livestock Grazing Act of 1995 [LGA], we intend
to roll back that cloud.
In the wings, however, there awaits an onerous proposal that will
jeopardize the very fabric of the Federal lands rancher's livelihood.
On August 21, 1995, Secretary Babbitt's Rangeland Reform '94 proposal
becomes final. Earlier this year, the Secretary agreed to provide a 6-
month window of opportunity for Congress to deliberate over the
concerns raised during the 2-year debate on the proposed rule. LGA is
the product of that temporary stay; it is a product that will provide
stability for ranchers across the West.
Many issues have been addressed in our bill. For example, issues such
as public input into the management of our Federal lands; standards and
guidelines that will reflect the diversity of the western rangelands;
and incentive for permitees to contribute private dollars to betterment
of our Federal lands; a fair method in gaining ownership and control of
water rights; a subleasing provision that will help the elderly and
family ranchers; and, a grazing fee formula that will generate more
revenue for the American taxpayers.
There are many more aspects of this legislation, nevertheless, I am
going to focus on the new grazing fee and the formula that will
generate an increase in revenue to the Treasury.
Although the grazing fee does not affect the condition of our
rangelands, I did make a commitment to increase the grazing fee during
the October debate on Rangeland Reform '94. Today, through this
legislation that pledge has been honored. LGA includes a grazing
formula that will provide for a fair return for the utilization of our
Federal lands.
In the past, the Federal lands grazing fee was based on a formula
that was too complex and subject to many interpretations. A simpler and
more understandable fee formula will help ensure a greater amount of
stability to the Federal lands ranchers.
The LGA fee establishes a fee formula that is based on the gross
value of production for cattle. Although this formula is based solely
on the value of production for cattle, an adjustment has been made to
take into consideration the differential in the production value
between a cow and animals that are not as large. This adjustment will
not increase the numbers of sheep and goats on the Federal lands, but
will merely take into account the considerable differences between the
cattle prices and the other two commodities.
This Gross Return Fee formula is based on the premise that the
western Federal lands rancher should pay a fair percentage of gross
production value that is gained by use of the Federal lands. Two key
features of this formula are that the fee approximates the value of the
forage from the gain in production value, and that it provides a fair
return to the Federal Government for that forage. [[Page
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Mr. President, this formula is simple. As I explained earlier, the
current fee is convoluted. Establishing the grazing fee as a percentage
of return will assure that livestock ranchers are assessed on the same
basis of many other public lands users.se
As you may know, forage has no readily identifiable market value
until it is converted into beef, wool, mutton, or some other salable
animal product. Federal lands ranchers will--and have--willingly pay
for the opportunity to utilize this forage on Federal lands to attain a
gross value of livestock grazing on those lands. The Gross Return Fee
recognizes the value of the end product by establishing the grazing fee
as a percentage of this value.
The Gross Return Fee is critical to the continued viability of the
western livestock industry. Ranchers are the family farmers of the
West. The establishment of a fair and equitable grazing fee formula is
critical to their survival.
Additionally, the rancher is key to the rural western economy. Every
dollar a rancher spends yields an estimated $5 in economic activity
throughout the West. This economic activity is critical to social
fabric west, old or new.
In closing, Mr. President, the fee is only one component of this
legislation. The other aspects of this bill will be addressed by the
cosponsors of this legislation. Furthermore, a companion measure is
currently ready for introduction in the House of Representatives. This
will allow the Livestock Grazing Act of 1995 to be examined in full by
both bodies of Congress. I look forward to moving this legislation
through both Houses of Congress and removing the cloud that has been
hanging over the Federal lands rancher.
Mr. CRAIG. Mr. President, I along with 14 of my colleagues am
introducing the Livestock Grazing Act. This bill is intended to
establish the policy guidelines for grazing of livestock on Federal
lands in the Western States.
This bill is needed to resolve the ongoing debate over rangeland
reform and the establishment of fees. I strongly believe the Congress
must address this issue and resolve the ongoing debate over western
rangeland management. We must assure that the extensive Federal lands
in the West have a grazing policy that allows the families who depend
on these lands to continue to use these lands to make their
livelihoods.
We have crafted a bill that addresses the numerous issues that have
arisen on grazing on the public lands. This bill is a product of
extensive discussions with members of the grazing and academic
community. It addresses both rangeland reform and the fee issue.
It is my intention to hold hearings in the Senate Energy and Natural
Resources Subcommittee that I chair in the early summer and then to
promptly move a bill. I am pleased that the other body has a similar
schedule.
It is my intention to resolve this long-standing issue in a way that
strengthens the economic base of the rural ranching West. I will work
with my colleagues to assure that such a bill is passed into law.
Mr. BURNS. Mr. President, I rise today to support the introduction of
the livestock grazing bill offered by Senator Domenici, myself, and
others. This is a bill that will allow us to set the stage for the
future grazing and land use access of the livestock industry. This is
extremely important in the West, and in particular my State of Montana.
This is a bill that will provide security and stability to the
livestock producers--those people who live, and work 365 days a year,
on or near the public lands.
For years there has been debate on the purpose and scope of the
intent of the language that a grazing bill would offer. Many people
have attempted to make this a single issue bill. This attempt may be
the case, to those who, do nothing more than depend upon the farmer and
rancher for the food and fiber they enjoy in their daily lives. But to
the rancher, or anybody or any group this is the first step to creating
some sense of stability for them on public lands. For the rancher, this
is the first step they have seen, that will provide them with the
security they need to operate their grazing permits with the sense of
purpose and a future. The purpose of this bill is to provide a future
for those hard-working men and women that provide the best and least
expensive food supply to this Nation and the world.
Too many times the ability of these people to use the public lands
has been threatened by forces who neither care about the vitality and
well-being of the communities. People who have no idea of what the
issue is. This is an issue of allowing producers and permit holders to
use the land. For it is in this use that the land is made healthy, that
our country thrives, and the public is provided an opportunity to put
back something into the land.
In the recent past in my State of Montana this land use has been
threatened by special interests. Interest groups with no understanding
of what grazing and the livestock industry are all about. In a little
known area, called the Bitterroot Forest, history was made by the stand
that the permit holders made in defending their rights to use and graze
public lands. However, this action cost the Federal Government
thousands of dollars and strained the relations between the land use
groups and the Government. All this action was brought on, due to the
requirements of the land managers to complete certain environmental
requirements. Requirements set forth under the provisions in the
National Environmental Policy Act of 1969.
This case was developed as a result of the failure of the Federal
Government of complete NEPA compliance on permit holders allotments. As
a result, it threatened the ability of this particular group of
ranchers to work, to graze cattle, and provide for their families. The
permit holders, in this example and many more like it, were held
hostage to the whims and of the special interest groups and the Federal
courts. Held hostage by the very laws that were designed to protect
them and their way of living. I find it ironic that those permit
holders suffered financial loss and mental anguish. They were the only
ones who did. All other interests including the Forest Service
personnel who were charged to do the required work, did not lose a pay
check.
Under the language in this bill we have provided for the security of
the permit holders, and the health and future of the land. In this bill
we continue to use the land management plans as a way to protect the
land, and at the same time give the permit holders an opportunity to
have access to the land for their use.
Mr. President, this bill is the first step to developing working
arrangements between the Government and the people on the land. It is
an opportunity to have all parties working together to set the
standards for what is best for the land and the people of this country.
Mr. SIMPSON. Mr. President, I rise to express my support for the
Livestock Grazing Act introduced by my colleague and good friend,
Senator Domenici. He and his staff--especially Marron Lee--have done an
outstanding job leading the charge for responsible grazing fee reform.
I commend them for working so doggedly to produce the best bill
possible.
Mr. President, I say ``best bill possible'' because there cannot be a
perfect bill. With the number of diverse interests represented
throughout our great American West, no legislation in this area will
satisfy everyone. But truly, the widespread support for this bill has
been impressive.
Of course, I have heard some rumblings of discontent from those
wishing to modify specific portions of this legislation. I ask those
individuals to work with us, to let us know your thoughts as this bill
moves through the committee process. We will do our best to attend to
your concerns. There are, however, certain things we must all bear in
mind. First, this bill is by far better than the alternative of having
no bill, and second, we must not turn this bill into a ``Christmas wish
list.'' Doing so could spell defeat for this legislation and, in turn,
subject our western livestock industry to an uncertain future.
I am most pleased by a number of provisions contained in this
legislation that will benefit the Wyoming ranching industry. I would
like to quickly address a few of these.
First, the bill will allow ranchers to own, in proportion to their
investment in the overall cost, title to improvements located on
Federal lands. This is far more fair than the administration's
regulations requiring ranchers to pay for the improvement, while
cedingownership with the Government. Mr.
[[Page
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President, that alternative is wrongly conceived. It amounts simply to
a form of tax on our ranchers, taking their scarce assets and
transferring them to the Federal Government.
We also address the critical issue of water rights. The Western
States are not blessed with the almost unlimited supply of water that
our Eastern neighbors enjoy. Western water law was created to manage
this precious resource. Much of this law predates the birth of many of
our Western States and works very well without the help of the Federal
Government, thank you. This legislation directs Federal agencies to
respect established State water law.
This legislation, unlike the administration's regulations, will leave
certain aspects of rangeland management in the hands of those who have
been responsible stewards of the public lands for over 100 years--the
permittees, lessees, and landowners. Additionally, the new resource and
grazing advisory council structure will allow other interests
representing recreation and the environment to be adequately
represented in the management process.
Finally, this legislation addresses the ever-contentious fee issue.
Recall that not too long ago, many in this distinguished body were
concerned that the ranching community was not paying a fair price for
the opportunity to graze livestock on the public lands. This
legislation will fairly increase that fee but keep it short of levels
that would quickly bankrupt many hard-working families.
Mr. President, our American ranching industry has been a unique way
of life for well over 100 years. Through the enactment of responsible
legislation we can ensure that this industry, while still facing a
number of significant challenges, will at least have a chance to remain
viable well into the next century.
Mr. DASCHLE. Mr. President, Americans rely on Federal lands for a
wide variety of purposes. Among them is rangeland for livestock
grazing. As we look to the future use of these lands, it is incumbent
upon us to implement commonsense policies that allow ranchers to graze
livestock on these public rangelands while managing them in a manner
that is consistent with long-term, sustainable use.
During the last 2 years, debate has raged over the appropriate
regulation of Federal grazing lands. Environmentalists and those
ranchers who graze on private land have argued for a more realistic fee
system, one that links the grazing fee to the private land lease rate.
Some have advocated stronger stewardship requirements. Meanwhile, as
grazing policy remains unresolved, we have seen cattle prices drop and
too many ranchers teetering on the edge of financial viability.
There needs to be some fair and reasonable ground upon which
agreement can be reached that ensures public confidence in the
management and use of the Federal lands, while allowing ranchers the
certainty that, by working hard and playing by the rules, the Federal
lands will provide an opportunity to earn a decent living. In short,
the time has come to conclude this long debate and establish realistic
grazing standards once and for all.
Secretary Babbit's Rangeland Reform proposals have called attention
to this important issue and, at the same time, generated considerable
controversy. While an open discussion of grazing reform is needed, a
rising tide of misunderstanding and distrust has hampered the
development of a broadly supportable solution.
Today, Senator Domenici is introducing the Livestock Grazing Act,
which is intended to provide much needed closure to this debate as well
as certainty for the many ranchers who rely on the Federal lands for
grazing. I commend Senator Domenici for investing the hard work and
energy in meeting with the ranching community and fashioning a bill
that enjoys their support. His bill represents an essential step in
moving grazing reform to closure.
I support much of the Domenici bill. It provides a valuable framework
for addressing the critical issues of the fee, range management, and
oversight, and, ultimately, I expect it to provide the foundation for
the development of a balanced and reasonable approach to stewardship
that addresses legitimate concerns of all interested groups.
For example, I call attention to the provision in the bill that
establishes separate management of the national grasslands under the
Department of Agriculture. This initiative will help ensure that
management of those lands is as sensitive as possible to the unique
needs of ranchers.
Currently, grasslands are subjected to rules and procedures that make
sense for large expanses of national forests but not necessarily for
grazing. In South Dakota, most ranchers who graze cattle on Federal
lands do so on Forest Service lands. Ranchers in my home State feel a
separate management unit for grasslands will allow them to ranch
better. This legislation will accomplish that important objective.
Congress' challenge is to strike a balance between the recognition of
regional environmental differences and the need to ensure a basic level
of environmental protection. It is to reform the grazing fee, without
putting an untenable financial squeeze on hard-working ranchers. And it
is to strike a balance between the desire to provide an opportunity for
input into range management decisions from the general public and the
recognition that these decision have special ramifications for the
economic security of those using the land.
We have not yet achieved that balance. But I am optimistic that we
can, and I will devote my energies to working with Senator Domenici and
others toward that goal.
This is one of the reasons I have invited Secretary of Agriculture
Dan Glickman to visit with South Dakota ranchers next week in Rapid
City. I want Secretary Glickman to hear first hand how those whose
livelihoods are affected by Federal land management policies feel about
the grazing issue. Their experience must be part of the solution sought
in this debate.
Senator Domenici has expressed a desire to move grazing reform
legislation with bipartisan support. While some initial concern has
been raised that the Livestock Grazing Act, as currently drafted, may
not yet achieve the balance needed to ensure consideration of all
legitimate interests in the management of the range, he has given
Congress a solid place to start. I hope that, in the weeks to come, any
contentious issues can be worked out to the mutual satisfaction of all
interested parties, and that we can move to enact legislation with
broad-based support.
My goal is to pass Federal grazing reform. I am confident this
Congress can achieve that goal.
Mr. THOMAS. Mr. President, I rise today in strong support of the
legislation introduced by Senator Domenici, the Livestock Grazing Act.
This bill is a reasonable proposal that will allow livestock producers
in the West to continue to operate on public lands and will protect the
public range for multiple-use purposes.
Today, western livestock producers are encountering many challenges.
In addition to struggling because of low market prices for many
products and fighting losses from predators, livestock producers in the
West are now faced with regulations proposed by Interior Secretary
Bruce Babbitt that will put them out of business. Secretary Babbitt's
so-called ``Rangeland Reform '94'' proposal to reform public land
grazing practices is nothing but a thinly veiled attempt to end
livestock grazing on these areas.
The people of Wyoming and the West rely on having access to public
lands for their livelihood. Over the last 100 years, this process has
worked well. Westerners were able to use these lands for multiple uses
such as grazing, oil and gas exploration, and recreation and in turn
provided the rest of the Nation with high quality food products and
other commodities. Unfortunately, the Department of the Interior has
now taken a number of actions that will destroy the concept of multiple
use of public lands and will cost jobs and harm local economies across
Wyoming and the West.
The Livestock Grazing Act is designed to reverse this disturbing
trend. This legislation will provide western livestock producers with a
lifeline to survive the Clinton administration's efforts to destroy
their way of life. The measure is a reasonable attempt to solve the
long-standing dispute over grazing fees on public lands and many other
issues which have caused great discontent in Congress and across the
country. [[Page
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Let me focus on a few provisions in the bill which are particularly
important to the people of my State. First, the legislation establishes
a grazing fee formula that will be tied to market values. This is a
fair and equitable approach to resolving the fee formula dispute and
will end the unfair comparison between private and public fee rates on
Federal lands.
Second, the legislation will provide permittees with the assurance
that they will be allowed to graze a certain number of livestock on
their allotment. For over 50 years, BLM grazing permittees have known
they had a priority position for a specific number of Federal animal
unit months [AUM's] on their allotments. These so-called preference
levels are attached to the private lands of the lessee and influence
the value of the privately owned base property. Preference levels are
particularly important to folks in my State where there is a large
amount of checkerboard land, which is commingled Federal and private
property.
Unfortunately, Secretary Babbitt's ``Rangeland Reform '94'' proposal
attempts to radically revised the concept of grazing preference by
giving Federal agents the authority to determine the appropriate number
of AUM's attached to a lease. The Secretary wants to set AUM's for
permittees on an arbitrary basis at the whim of the local Federal
officials. This would cause instability throughout western livestock
communities and threaten the economic value of western family ranches.
The Livestock Grazing Act would stop the Secretary's misguided efforts
by codifying the concept of grazing preference and giving western
ranchers the surety they need to continue operating on Federal lands.
Mr. President, these are just two examples of the important actions
taken by Senator Domenici in this bill that support western livestock
producers. The time has come for Congress to assert itself regarding
the issue of grazing on public lands in the West and stop Secretary
Babbitt's unending assault on western communities and our western way
of life. Although the Clinton administration and Secretary Babbitt
would like folks to believe ranchers in the West are simply welfare
cowboys, nothing could be further from the truth. These people are not
taking advantage of the Government, but simply trying to make a
reasonable living and raise their families.
I strongly support the Livestock Grazing Act and hope that we can
take quick action on this measure in order to allow western livestock
producers to continue their important work.
Mr. DORGAN. Mr. President, the sponsor of this bill, the Senator from
New Mexico, has made a sincere attempt to draft a good management plan
for our western public lands, and I have agreed to cosponsor it.
Although I want to see changes in several areas of this bill, overall
it is a good plan for responsible management of our huge public trust
in the West, imposing reasonable rules for the grazing of livestock and
rangeland improvement while safeguarding the natural environment.
Senator Domenici has indicated his intent to work with Senators of
both parties toward a consensus on this legislation. I appreciate his
flexibility, but I particularly appreciate the Senator's addition to
his bill of title II, provisions I and others from the Northern Plains
have submitted dealing specifically with the national grasslands.
In fact, the Grasslands provisions are the primary reason that I am
cosponsoring this bill.
Let me explain. Except for the grasslands provisions, this bill deals
exclusively with lands supervised by the Department of the Interior. In
North Dakota, however, land managed by Interior amounts to about two
townships out of a State of 46 million acres. On the other land, North
Dakota is host to 1.2 million acres of the national grasslands, which
are managed by the U.S. Forest Service of USDA.
The main purpose of the grasslands provisions is to give the
Secretary of Agriculture more flexibility in shaping the administration
of the Grasslands.
I have worked with the ranchers in North Dakota and with the Forest
Service in recent years, searching for ways the Secretary of
Agriculture and the Forest Service could reorder the bureaucratic
framework under which the Grasslands are managed. The Forest Service
has been cooperative in that search, but I finally had to conclude that
the Forest Service and USDA are legally prevented from the kind of
change I believe is needed.
In the 1970's the grasslands were joined by statute to the entire
National Forest System, managed by the Forest Service. That means the
grasslands are enmeshed in the mounds and reams of paper that prescribe
the layers of procedure, planning, management, and so forth, for the
national forests.
Let me note here that land ownership in the grasslands areas of my
state is much different than what you find among most of the great
expanses of Federal lands in the West.
Most of the grasslands were owned earlier in this century by private
farmers and ranchers, but were abandoned or lost to debt, and taken
over by the Federal Government. Today this is not a region of big
ranches. It is an area of small, and mid-sized ranchers where land
ownership is extensively interspersed among individual families, the
Forest Service, the State of North Dakota, and the Bureau of Land
Management.
The proper approach in management of such rangeland, it seems to me,
must be a cooperative venture between the ranchers and the Forest
Service, drawing upon the best expertise of range scientists, wildlife
specialists, and others who can help maintain and improve conditions in
the grasslands.
The main focus of such a cooperative venture must be how to best
manage and nurture the grasslands so they remain healthy and productive
for the benefit of future generations of people and wildlife.
Somehow, that focus is lost in the reams of Forest System rules and
regulations and planning documents that are supposed to address the
grasslands. In reading those documents you would hardly know that there
are cows on the grasslands when, in fact, ranching is the main human
activity there by a long shot.
So, the grasslands provisions of this bill give the Secretary
important latitude in changing the administrative structure under which
the grasslands are managed. The provisions essentially restate the
intent of the 1937 Federal act that set aside the grasslands: A call
for conscientious range management that would build and preserve a
healthy grassland resource.
And, where soil conservation and general range health are considered,
title II also tries to return grasslands management to a more
cooperative venture between the Forest Service and our State-chartered
grazing associations.
The grasslands provisions do not dictate a specific administrative
structure the Secretary must adopt for the grasslands. So, to a large
extent, those provisions of the bill speak mostly to what can happen
for the grasslands under a new design of Forest Service management, and
do not say specifically what must happen.
The grasslands provisions will, I believe, help harvest the expertise
and enthusiasm of grasslands area residents, including ranchers, for
better local input into managing this critical natural area in my
State.
The provisions are certainly not a step back from responsible
management and protection of the natural resources. All Federal
environmental laws, including the National Environmental Protection
Act, Endangered Species Act, Clean Water Act, still apply. If anything,
the grasslands provisions will encourage better attention to the spirit
of our environmental laws because more people who live in the
grasslands region, particularly those with expertise in areas of
conservation and grassland agriculture, will be participating in how
the lands are managed.
This is the kind of approach to public lands management that the
people of North Dakota want. I should note that the 1995 North Dakota
Legislature unanimously recommended the change we have proposed in the
grasslands law.
Finally, I ask unanimous consent to print the proposed grassland
provisions here in the Record as a means of distributing them for
comment and discussion.
There being no objection, the material was ordered to be printed in
the Record; as follows:
[[Page
S7504]]
TITLE II--GRASSLANDS
SEC. 201 REMOVAL OF GRASSLANDS FROM NATIONAL FOREST SYSTEM
(a) Findings.--Congress finds that the inclusion of the
national grasslands (and land utilization projects
administered under Title III of the Bankhead Jones Farm
Tenant Act) within the Forest System contrains the Secretary
in managing the national grasslands as intended under the
Bankhead-Jones Farm Tenant Act.
(b) Amendment of the Forest and Rangeland Renewable
Resources Planning Act of 1974.--Section 11(a) of the Forest
and Rangeland Renewable Resources Planning Act of 1974 (16
U.S.C. 1609(a)) is amended in the second sentence by striking
``the national grasslands and land utilization projects
administered under Title III of the Bankhead-Jones Farm
Tenant Act (50 Stat. 525, 7 U.S.C. 1010-1012)''.
(c) Amendment of the Bankhead-Jones Farm Tenant Act.--
Section 31 of the Bankhead-Jones Farm Tenant Act (7 U.S.C.
1010) is amended by designating current Sec. 31 as subsection
(a) to read as follows:
Sec. 1010. Land conservation and land utilization
To accomplish the purposes stated in the preamble of this
act, the Secretary is authorized and directed to develop a
program of land conservation and utilization as a basis for
grassland agriculture, to promote secure occupancy and
economic stability of farms, and thus assist in controlling
soil erosion, preserving natural resources, protecting fish
and wildlife, developing and protecting recreational
facilities, mitigating flood damages, preventing impairment
of dams and reservoirs, developing energy resources,
protecting the watersheds of navigable streams, conserving
surface and subsurface moisture, and protecting the public
lands, health, safety, and welfare, but is not authorized to
build industrial parks or establish private industrial or
commercial enterprises. The Secretary, in cooperation and
partnership with grazing associations, is authorized and
directed to issue renewable livestock grazing leases to
achieve the land conservation and utilization goals of this
section.
And adding a new subsection (b) as follows:
National Grasslands Fee Adjustments for Conservation
Practices to be Retained as Implemented by the Secretary.--A
reduction in grazing fees for national grasslands will be
allowed for conservation practices and administrative duties
performed by grazing associations.
______
By Mr. GORTON (for himself, Mr. Burns, Mr. Murkowski, Mr.
Stevens, Mr. Kempthorne, Mr. Craig, Mr. Baucus, Mr. Packwood,
and Mr. Hatfield):
S. 853. A bill to amend title 28, United States Code, to divide the
ninth judicial circuit of the United States into two circuits, and for
other purposes; to the Committee on the Judiciary.
the ninth circuit court of appeals reorganization act of 1995
Mr. GORTON. Mr. President, my purpose today is to introduce the Ninth
Circuit Court of Appeals Reorganization Act of 1995, which is similar
to measures I introduced in 1983, 1989, and 1991. This measure has the
cosponsorship of Senators Burns, Murkowski, Stevens, Kempthorne, Craig,
Baucus, Packwood, and Hatfield, who represent all the States forming
the new proposed circuit. This proposal will divide the ninth circuit,
the largest circuit in the country, into two separate circuits of more
manageable size and responsibility. This division would leave the ninth
circuit composed of Arizona, California, Hawaii, Nevada, Guam, and the
Northern Mariana Islands, and would create a new twelfth circuit
composed of Alaska, Idaho, Montana, Oregon, and Washington. Personally,
I believe that the ninth circuit should be divided into three new
circuits, but the composition for the two southern circuits should be
determined by the elected representatives of those States, to whose
judgment I will defer.
Today the ninth circuit is by far the largest of the thirteen
judicial circuits, measured both by number of judges and by caseload.
It has 28 active judges, 11 more than any other. Last year it had an
astounding 8,092 new filings, almost 2,000 more than the next busiest
circuit. It serves over 45 million people, almost 60 percent more than
are served by the next largest circuit. Moreover, the population in the
States and territories that comprise the ninth circuit is the fastest-
growing in the Nation.
Mr. President, the deplorable consequence of the massive size of this
circuit is a marked decrease in the consistency of justice provided by
ninth circuit courts. Judges are unable to keep abreast of legal
developments even within their own jurisdiction--to say nothing of lay
citizens' inability to keep abreast. The large number of judges
scattered over a large area inevitably results in difficulty in
reaching consistent circuit decisions. These judges have nearly
unmanageable caseloads with little time to review the voluminous case
law within the jurisdiction or to consult with their fellow circuit
colleagues. As a result, legal opinions tend to be very narrow with
little precedential value, merely exacerbating the problem. As a former
attorney general for the State of Washington, I personally have
experienced the unique frustrations and difficulties of practicing
before the ninth circuit.
Compounding the problem for the Northwest is that 55 percent of the
case filings in the ninth circuit are from California alone.
Consequently, the remaining States in the ninth circuit, including my
State of Washington and our Northwest neighbors, are dominated by
California judges and California judicial philosophy. That trend cannot
help but persist as the number of cases filed by California's litigious
and exploding population continues to rise. The Northwestern States
confront issues that are fundamentally unique to that region, issues
that are central to the lives of citizens in the Northwest, but which
are little more than one of many newspaper articles in California. In
sum, the interests of the Northwest cannot be fully appreciated or
addressed from a California perspective.
This initiative, Mr. President, is long overdue. As early as 1973,
the Congressional Commission on the Revision of the Federal Court
Appellate System recommended that the ninth circuit be divided. In
addition, the U.S. Judicial Conference found that increasing the number
of judges in any circuit court beyond 15 would create an unworkable
situation. The American Bar Association also adopted a resolution
expressing the desirability of dividing the ninth circuit to help
realign the U.S. appellate courts. Earlier bills on the ninth circuit
reorganization that I introduced during the 101st and 102d Congresses--
and which were virtually identical to this bill--earned the support of
practitioners and judges in the ninth circuit, attorneys general of the
western States, the Department of Justice, and the former Chief
Justice of the U.S. Supreme Court, Warren E. Burger.
The leadership of the ninth circuit has not donned blinders to the
difficulties inherent in a circuit court of this size and workload. It
has responded, however, by adopting a number of innovative but
ultimately ineffectual approaches to these problems. For example the
ninth circuit has divided itself into three administrative divisions:
the northern unit consists of the five Northwestern States that would
comprise the proposed twelfth circuit, and the combined middle and
southern units is identical to the restructured ninth circuit. This
method, however, does little more than recognize the problem without
solving it.
Another innovation of the ninth circuit is the limited en banc court,
for which a panel of 11 of the 28 judges will be chosen by lot to hear
an individual case. Such panels, however, further contribute to the
inherent unpredictability of a jurisdiction as large as the ninth
circuit. Lawyers often must tell their clients that they cannot begin
to predict the likely outcome of an appeal until the panel has been
identified. Mr. President, justice should not be determined by lot.
Moreover, I have serious reservations about any method which would
permit a small minority--as few as six of the sitting judges--to
dictate the outcome of a case contrary to the judgment of a large
majority, solely depending on the luck of the draw.
Despite these attempts to solve the problem, the performance of the
ninth circuit has gotten worse, not better. Its judges are falling
further and further behind. Despite only a moderate increase in new
filings for appeal, the number of pending cases swelled by almost 20
percent in the last year. The ninth circuit now is the slowest of 12
regional circuits in hearing and deciding appeals, on average taking a
full 16 months. Mr. President, justice delayed is justice denied.
The 45 million residents within the ninth circuit continue to pay the
high costs of an unpredictable body of case law and an overburdened
court system. They wait years before cases are heard and decided,
prompting many to forego their rights to judicial redress. Residents in
the Northwest, in particular, [[Page
S7505]] are concerned about the
growing inability of the ninth circuit to handle the boom in criminal
cases stemming from stepped-up enforcement of our drug laws.
The swift and sure administration of justice is a right that should
no longer be compromised in the ninth circuit. I urge my colleagues to
support this important legislation. Mr. President, I ask unanimous
consent that the complete text of my bill be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 853
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Ninth Circuit Court of
Appeals Reorganization Act of 1995''.
SEC. 2. NUMBER AND COMPOSITION OF CIRCUITS.
Section 41 of title 28, United States Code, is amended--
(1) in the matter before the table, by striking out
``thirteen'' and inserting in lieu thereof ``fourteen'';
(2) in the table, by striking out the item relating to the
ninth circuit and inserting in lieu thereof the following new
item:
Arizona, California, Hawaii, Nevada, Guam, Northern Mariana Islands.'';
and
(3) between the last 2 items of the table, by inserting the
following new item:
Alaska, Idaho, Montana, Oregon, Washington.''..........................
SEC. 3. NUMBER OF CIRCUIT JUDGES.
The table in section 44(a) of title 28, United States Code,
is amended--
(1) by striking out the item relating to the ninth circuit
and inserting in lieu thereof the following new item:
``Ninth..........................................
Major Actions:
All articles in Senate section
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
(Senate - May 25, 1995)
Text of this article available as:
TXT
PDF
[Pages
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[[Page
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STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. JOHNSTON (for himself, Mr. Faircloth, Mr. Breaux, Mr.
Pressler, Mr. Dorgan, Mr. Lott, Mr. Dole, Mr. Murkowski, and
Mr. Heflin)
S. 851. A bill to amend the Federal Water Pollution Control Act to
reform the wetlands regulatory program, and for other purposes; to the
Committee on Environment and Public Works.
the wetlands regulatory reform act of 1995
Mr. JOHNSTON. Mr. President, I am pleased today to introduce, along
with several of my colleagues, the Wetlands Regulatory Reform Act of
1995. I am particularly pleased to have as the lead cosponsor Senator
Faircloth, the chairman of the subcommittee of the Environment and
Public Works Committee that has jurisdiction over wetlands. Our bill
will reform the section 404 ``wetlands'' permitting program under the
Clean Water Act by introducing balance, common sense, and reason to a
Federal program that is causing unnecessary problems for my
constituents--and I believe for many of our citizens around the Nation.
In the closing days of the last Congress, I introduced a wetlands
bill,
S. 2506, so that my colleagues and other interested persons could
review the legislation and recommend improvements prior to
reintroduction in the 104th Congress. I appreciate the efforts of those
who took the time over the last few months to provide suggestions, many
of which are reflected in the current bill.
Mr. President, the current section 404 regulatory program has been
designed less by the elected representatives of the people than by
officials of the Corps of Engineers and the Environmental Protection
Agency and by Federal judges. In 1972, the Congress enacted the Federal
Water Pollution Control Act. Section 404 of that Act prohibited
``discharges of dredged or fill material'' into ``waters of the United
States;'' without a permit from the Secretary of the Army. At the time
of passage, ``waters of the United States'' was thought to be limited
to the navigable waters of the Nation.
From this narrow beginning has come a rigid regulatory program that
is devaluing property and preventing the construction of housing, the
extension of airport runways, the construction of roads--often on lands
that rarely, if ever, have water on the surface but which,
nevertheless, are viewed as ``wetlands'' within the definition of
``waters of the United States''. And I might add, Mr. President, that
75 percent of the land that is being regulated through the Section 404
program as ``wetlands'' or ``waters of the United States'' is
privately-owned property.
I do not believe that we, in Congress, intended for the Section 404
program to become a rigid, broad Federal land use program that affects
primarily privately-owned property. Yet, the evidence is clear to me
that the Section 404 program has become just that. Therefore, Mr.
President, I believe that the time has come for the Congress to reform
this program to focus Federal regulatory authority on those wetlands
that are truly important functioning wetlands, to ensure that our
citizens can obtain permits through a reasonable process within a
reasonable period of time, and to ensure that this program is not
denying people the use of their property unless there is an overriding
reason to do so.
Mr. President, the Wetlands Regulatory Reform Act of 1995 proposes
several key changes to the current 404 program:
First, the bill provides a statutory definition of a jurisdictional
wetland. This is, of course, the crucial threshold question: what
wetlands are subject to Federal regulation? And yet, one can read the
entire Clean Water Act without finding the answer to this question.
Instead, the answer currently lies only in a manual prepared by the
Corps of Engineers in 1987. I think it is high
time that Congress make an explicit judgment on this matter and set
forth a definition in the statute itself.
The definition in our bill is essentially this: there must be water
on or above the surface of the ground for at least 21 consecutive days
during the growing season. This is virtually the same as the definition
in
H.R. 961, which passed the House last week.
During the debate in the House, it was claimed by opponent of the
bill that this definition excludes a huge portion of the wetlands that
are currently regulated. However, the claims varied widely, and did not
appear to be based on solid evidence. Although I think that these
claims are exaggerated I want to make sure that our definition does not
exclude wetlands that are truly important. Therefore, I intend to write
to the Clinton administration to ask them to provide the best evidence
available regarding the effect of our definition on the amount and
nature of wetland regulated, both nationwide and in Louisiana.
Second, this legislation will require that Federal jurisdictional
wetlands be classified into three categories: high, medium, and low
valued wetlands, based on the relative wetlands functions present.
Today, the Section 404 program regulates all wetlands equally rigidly,
whether the wetland is a pristine, high-value wetland, a wet spot in a
field, or a ``wetland'' in the middle of an industrial area. This
treatment of wetlands defies logic and common sense.
My legislation will require the Corps of Engineers to classify
wetlands based on their functions, and then regulate them accordingly.
Class A, high-value, wetlands will be regulated under the current
``sequencing'' methodology, which first seeks to avoid adverse effects
on wetlands, then attempts to minimize those adverse effects that
cannot be avoided, and finally calls for mitigation of any adverse
effects that cannot be avoided or minimized. Class B, medium-value,
wetlands will be regulated under a balancing test, which does not
require the avoidance step. Finally, Class C, low-value, wetlands will
not be regulated by the Federal Government, but may be regulated by the
State if they so choose.
Third, this legislation removes the dual agency implementation of
this program, an aspect of the program that is particularly confusing
and troublesome to our constituents. Today, the Army Corps of Engineers
issues Section 404 permits, but the Environmental Protection Agency may
veto the decision of the Corps to issue the permit. Although EPA
actually exercises its veto power infrequently, I understand that veto
is threatened often, causing undue delays and repeated multi-agency
consultations. My legislation removes the EPA veto, and instead simply
requires the Corps to consult with EPA before acting.
Similarly, current law allows the EPA to veto permit decisions made
by State that have assumed responsibility for the section 404 program.
Our bill makes two changes to this regime. First, the Corps, instead of
the EPA, becomes responsible for overseeing States that have assumed
responsibility for the program. This is done in order to consolidate
responsibility in a single Federal agency. Second, the bill deletes the
veto authority as an unnecessary interference with State administration
of the program. If the Corps determines that the State is
not implementing the program appropriately, the Corps has the
authority, which my bill does not change, to withdraw approval of the
State program and return the program to Federal hands. But as long as
the State is in charge, its individual permit decisions should not be
subject to veto from Washington.
Fourth, mitigation banking is authorized and encouraged by the bill
as a sound means to return wetlands functions to the environment. There
are a number of mitigation banking projects now around the Nation. The
experience with these projects is proving that mitigation banking holds
great promise as a means of restoring, enhancing, reclaiming, and even
creating wetlands to offset the wetlands disturbances that are
permitted under the section 404 program. Mitigation banking is the type
of market driven mechanism that I believe we must incorporate in our
national environmental laws if we are to achieve our national
environmental goals.
Finally, this legislation will require that steps be taken to provide
notice to our citizens regarding the location of Federal jurisdictional
wetlands. Remarkably, Mr. President, the Federal Government is
regulating over 100 million acres of land, over 75 million acres of
which is privately owned, yet there are no maps posted to inform
citizens about the location of these lands. Perhaps this would not be a
problem if [[Page
S7499]] Federal jurisdictional wetlands were only
swamps, marshes, bogs, and other such areas that are wet at the surface
for a significant portion of the year, and therefore relatively easy
for our citizens to identify. But land that is dry at the surface all
year long can also be a Federal jurisdictional wetland.
Without maps and other notices, only the most highly trained
technicians among our citizens can identify the subtle differences
between lands that are not subject to the section 404 program and those
that are. Thus, many people have bought land for home sites, only to
find out later that they have bought a Federal jurisdictional wetland
and cannot obtain a permit to build their house. We owe our citizens
better than that.
My legislation will require the Corps of Engineers to immediately
post notices about the section 404 program near the property records in
the courthouses around the Nation, and to post maps of Federal
jurisdictional wetlands as those maps become available, including the
National Wetlands Inventory maps that are being developed by the
National Biological Survey.
Mr. President, there are many other improvements of the current
program in my legislation, including time limits on the issuance of
section 404 permits, an administrative appeal process, and the
designation of the Secretary of Agriculture to delineate wetlands on
agricultural lands.
As I mentioned, our bill has virtually the same definition of wetland
as the House-passed clean water bill,
H.R. 961. Although there are
several other comparable provisions in the two bills, our legislation
varies from the House-passed bill in at least one important respect.
Our legislation does not provide a mechanism for obtaining compensation
from the Federal Government when private property is taken through the
operation of the 404 program. I believe that the impact of the section
404 program on private property rights is a very important issue.
However, I also believe that compensation is an extraordinarily
complex and controversial issue that overarches all environmental
regulations, not just those relating to wetlands. Thus, rather than
attempting to resolve the compensation issue in this bill, we have
chosen to include provisions in the legislation that will help ensure
that the Section 404 Program does not result in takings of private
property in the first place. Therefore, in addition to the many
provisions of the bill that will make the wetlands program more
balanced and rational, it also directs Federal officials to implement
the program in a manner that minimizes the adverse effects on the use
and value of privately-owned property.
I would be remiss if I did not comment on the recently-issued study
of wetlands by the National Academy of Sciences. The report reaches
several conclusions that are reflected in this legislation.
Specifically, it recommends the consolidation of all wetlands
regulatory functions into a single Federal agency, a change that is
central to our legislation. It also recommends that regional variations
in wetlands be taken into account, which our bill does.
Some have suggested that the NAS study recommends against a
classification scheme such as is included in our bill, but I do not
read it that way. The report states that:
Some groups have suggested the creation of a national
scheme that would designate wetlands of high, medium, or low
value based on some general guidelines involving size,
location, or some other factor that does not require field
evaluation. It is not possible, however, to relate such
categories in a reliable way to objective measures of
wetlands functions, in part because the relationships between
categories and functions are variable and in part because we
still have insufficient knowledge of wetlands functions.
(Emphasis added.)
I read the report to warn against nationwide classification schemes
that do not take into account site-specific considerations, a point on
which I heartily agree. That is why our classification process is
initiated only in connection with the consideration of a permit
application or upon a request for classification of a specific piece of
property. The particular piece of property is classified after
considering site-specific factors, such as the significance of the
wetland ``to the long-term conservation of the aquatic system of which
the wetland is a part,'' and the ``scarcity of functioning wetlands
within the watershed or aquatic system.'' Thus, I do not see an
inconsistency between the NAS report and our bill with respect to
classification.
Even if the NAS study could be interpreted as expressing concern
about any classification scheme for wetlands, I would suggest that
those concerns should not be dispositive. Scientists and lawmakers
necessarily approach matters differently. Scientists are in the
business of achieving a more perfect state of knowledge, while
lawmakers are in the business of drawing regulatory lines and
allocating societal resources based on the information available. While
a scientist might prefer to wait for more information before
distinguishing among wetlands, Congress cannot wait because the present
regulatory scheme, which makes no distinctions among wetlands, is so
clearly ineffective at balancing wetlands protection against other
policy considerations.
Mr. President, reforming the wetlands regulatory program will be one
of my highest priorities in this Congress. I look forward to working
with my colleagues and others in an effort to make the program work
both for the environment and for our constituents.
Mr. BREAUX. Mr. President, I join with my colleague from Louisiana,
Senator J. Bennett Johnston, in introducing legislation today which
makes major reforms in Sec. 404 of the Federal Water Pollution Control
Act, also known a the Clean Water Act.
We all know Sec. 404 to be the wetlands regulatory program which has
caused so much controversy and so many problems. I have heard countless
complaints that the program has been implemented in an excessive and
restrictive manner for years, imposing unfair hardship on landowners,
businesses and local governments.
It is long overdue that the Sec. 404 program be reformed. It is long
overdue that the program be balanced, reasonable and fair. This bill
attempts to achieve those objectives.
One of the major features of the bill is its wetlands classification
system. I wholeheartedly endorse classifying and regulating wetlands by
the their value and function.
All wetlands are not equal in value and function, yet for years they
have been regulated that way. That way is wrong and we intend to change
it.
We do not have a wetlands classification system in current law. To be
fair and to strike balance and reason in wetlands regulation we must
identify and regulate according to the very real differences in
wetlands value and function.
For the first time, wetlands would be divided into three classes of
critical significance, Class A, significant, Class B, and marginal
value, Class C. Each class is defined to distinguish the different
values and functions found in wetlands.
Classes A and B wetlands would be regulated because they provide the
most valuable functions. A public interest test would have to be met
when regulating these two classes. Class C wetlands would not be
regulated because they are of marginal value.
Other major provisions of the bill include a definition of
jurisdictional wetlands, expansion of wetlands regulatory exemptions
and an expansion of regulated activities. Single agency program
jurisdiction and administration by the Corps of Engineers is
established.
Also included in the bill are exclusion of prior converted cropland
from Sec. 404 regulation, USDA delineation of wetlands on agricultural
land, and authorization of State permitting programs, and
administrative appeals program and a mitigation banking program. Public
information is required to be published about wetlands and their
regulation at the Federal and local levels.
The bill's policies attempt to strike a very simple and sound premise
in regulatory policy, that is, balance, reason and, most importantly,
fairness shall prevail.
These policies attempt to balance respect for the environment with
respect for property owners, in whose possession lies an estimated 75
percent of our wetlands in the lower 48 states.
In all that we do with regard to wetlands policy, we must always be
mindful and respectful of the fact that most [[Page
S7500]] of our
wetlands in the lower 48 States are privately owned.
Thank you, Mr. President, for this time to announce my support for
and sponsorship of the Wetlands Regulatory Reform Act of 1995.
I hope the Senate can begin hearings on the legislation and hear
solid testimony so that a final bill can be crafted.
Mr. PRESSLER. Mr. President, today I join Senator Faircloth and
Senator Johnston and others, in introducing legislation that addresses
a major concern of landowners, farmers, businesses, and average
citizens throughout the United States. The concern is wetlands.
Just last week, during consideration of the Clean Water Act, the
House of Representatives passed major revisions to our Federal wetlands
laws. It is now the Senate's turn to address this major issue. As
Chairman of the Senate Subcommittee on Wetlands, Senator Faircloth will
direct Senate efforts to bring much needed common sense to our Federal
wetlands laws. Very few Federal issues are more critical to South
Dakota property owners. Therefore, I look forward to working with
Senator Faircloth in making sure reforms are adopted during this
Congress.
Mr. President, current wetlands law is too broad. It is causing too
many problems throughout the country. Congress has never passed a
comprehensive law defining wetlands. Without such a definition, Federal
agencies have been recklessly pursuing control over private property in
the name of saving wetlands. The time to act has come.
Earlier this year, I introduced
S. 352, The Comprehensive Wetlands
Conservation and Management Act of 1995. A number of the provisions in
my legislation already have been adopted by the House, as part of its
reforms on wetlands. Also, I am pleased that most of
S. 352 is
incorporated in the bipartisan bill we are introducing today.
By introducing a bipartisan bill, one message is made clear:
Meaningful wetlands reform must be adopted this year.
One issue I reserve the right to address during future Senate debate
on wetlands reform is adequate compensation for private property
owners. Whenever the Federal Government takes land away from private
property owners, or significantly reduces the use of private property,
compensation is in order. There is no compensation provision in the
bill being introduced today. However, I intend to raise this issue
during floor debate on this subject. Compensation to private property
owners should be included in meaningful wetlands reform.
The primary purpose of today's legislation is to clearly define
wetlands in law and regulation. What the Federal Government should, or
should not be doing in this area needs to be clearly defined.
In addition, efforts must be made to ensure that any fine or penalty
is in line with violations. Many violations are incidental and can be
quickly repaired. Penalties should fit the crime. The bill we are
introducing today would set that kind of standard.
The bill would require certain criteria to be met and verified before
an area can be regulated as a wetland. Such an approach would be more
reliable in identifying true wetlands. It would prevent field
inspectors from mistakenly classifying as wetland dry, upland areas
that drain effectively. It also would eliminate a major source of
confusion and abuse caused by current regulations.
This bill also would give States and local governments the authority
to tailor the wetlands regulatory program to their own special
circumstances. This is greatly needed.
The bill also would clarify current agricultural exemptions and
provide that the Secretary of Agriculture shall identify agricultural
lands that are wetlands.
Mr. President, the time has come for the Senate to adopt wetlands
reform. Only through the kind of commonsense and balanced approach
proposed in this bill can the Nation's agricultural, business,
environmental, and individual interests be properly addressed.
Mr. President, thousands of South Dakotans have written, called, or
visited with me about the lack of definition of wetlands and the
haphazard rules and regulatory overkill taken by the Federal
Government. They rightly are concerned about the impact of the current
system on their ability to run their farms and businesses. South
Dakotans are law-abiding citizens who stand for fairness and balance in
the enforcement of the law. South Dakotans are conscientious stewards
of the land they have cared for and cultivated for generations. They
believe the time has come for a fair, balanced approach that protests
the environment as well as private property. I believe the bill we are
introducing today responds to this call for fairness from South Dakota
and across America.
Action on this issue is essential. I urge my colleagues to take a
close look at this bill and join in supporting it.
______
By Mr. DOMENICI (for himself, Mr. Craig, Mr. Brown, Mr. Campbell,
Mr. Hatch, Mr. Bennett, Mr. Burns, Mr. Simpson, Mr. Thomas, Mr.
Kyl, Mr. Pressler, Mr. Kempthorne, Mr. Conrad, Mr. Dorgan, Mr.
Dole, and Mr. Gramm):
S. 852. A bill to provide for uniform management of livestock grazing
on Federal land, and for other purposes; to the Committee on Energy and
Natural Resources.
the livestock grazing act of 1995
Mr. DOMENICI. Mr. President, over the past several years, a series of
legislative and administrative actions have haunted the Federal lands
ranchers. A cloud has been hanging over their livelihoods. Today, with
the introduction of the Livestock Grazing Act of 1995 [LGA], we intend
to roll back that cloud.
In the wings, however, there awaits an onerous proposal that will
jeopardize the very fabric of the Federal lands rancher's livelihood.
On August 21, 1995, Secretary Babbitt's Rangeland Reform '94 proposal
becomes final. Earlier this year, the Secretary agreed to provide a 6-
month window of opportunity for Congress to deliberate over the
concerns raised during the 2-year debate on the proposed rule. LGA is
the product of that temporary stay; it is a product that will provide
stability for ranchers across the West.
Many issues have been addressed in our bill. For example, issues such
as public input into the management of our Federal lands; standards and
guidelines that will reflect the diversity of the western rangelands;
and incentive for permitees to contribute private dollars to betterment
of our Federal lands; a fair method in gaining ownership and control of
water rights; a subleasing provision that will help the elderly and
family ranchers; and, a grazing fee formula that will generate more
revenue for the American taxpayers.
There are many more aspects of this legislation, nevertheless, I am
going to focus on the new grazing fee and the formula that will
generate an increase in revenue to the Treasury.
Although the grazing fee does not affect the condition of our
rangelands, I did make a commitment to increase the grazing fee during
the October debate on Rangeland Reform '94. Today, through this
legislation that pledge has been honored. LGA includes a grazing
formula that will provide for a fair return for the utilization of our
Federal lands.
In the past, the Federal lands grazing fee was based on a formula
that was too complex and subject to many interpretations. A simpler and
more understandable fee formula will help ensure a greater amount of
stability to the Federal lands ranchers.
The LGA fee establishes a fee formula that is based on the gross
value of production for cattle. Although this formula is based solely
on the value of production for cattle, an adjustment has been made to
take into consideration the differential in the production value
between a cow and animals that are not as large. This adjustment will
not increase the numbers of sheep and goats on the Federal lands, but
will merely take into account the considerable differences between the
cattle prices and the other two commodities.
This Gross Return Fee formula is based on the premise that the
western Federal lands rancher should pay a fair percentage of gross
production value that is gained by use of the Federal lands. Two key
features of this formula are that the fee approximates the value of the
forage from the gain in production value, and that it provides a fair
return to the Federal Government for that forage. [[Page
S7501]]
Mr. President, this formula is simple. As I explained earlier, the
current fee is convoluted. Establishing the grazing fee as a percentage
of return will assure that livestock ranchers are assessed on the same
basis of many other public lands users.se
As you may know, forage has no readily identifiable market value
until it is converted into beef, wool, mutton, or some other salable
animal product. Federal lands ranchers will--and have--willingly pay
for the opportunity to utilize this forage on Federal lands to attain a
gross value of livestock grazing on those lands. The Gross Return Fee
recognizes the value of the end product by establishing the grazing fee
as a percentage of this value.
The Gross Return Fee is critical to the continued viability of the
western livestock industry. Ranchers are the family farmers of the
West. The establishment of a fair and equitable grazing fee formula is
critical to their survival.
Additionally, the rancher is key to the rural western economy. Every
dollar a rancher spends yields an estimated $5 in economic activity
throughout the West. This economic activity is critical to social
fabric west, old or new.
In closing, Mr. President, the fee is only one component of this
legislation. The other aspects of this bill will be addressed by the
cosponsors of this legislation. Furthermore, a companion measure is
currently ready for introduction in the House of Representatives. This
will allow the Livestock Grazing Act of 1995 to be examined in full by
both bodies of Congress. I look forward to moving this legislation
through both Houses of Congress and removing the cloud that has been
hanging over the Federal lands rancher.
Mr. CRAIG. Mr. President, I along with 14 of my colleagues am
introducing the Livestock Grazing Act. This bill is intended to
establish the policy guidelines for grazing of livestock on Federal
lands in the Western States.
This bill is needed to resolve the ongoing debate over rangeland
reform and the establishment of fees. I strongly believe the Congress
must address this issue and resolve the ongoing debate over western
rangeland management. We must assure that the extensive Federal lands
in the West have a grazing policy that allows the families who depend
on these lands to continue to use these lands to make their
livelihoods.
We have crafted a bill that addresses the numerous issues that have
arisen on grazing on the public lands. This bill is a product of
extensive discussions with members of the grazing and academic
community. It addresses both rangeland reform and the fee issue.
It is my intention to hold hearings in the Senate Energy and Natural
Resources Subcommittee that I chair in the early summer and then to
promptly move a bill. I am pleased that the other body has a similar
schedule.
It is my intention to resolve this long-standing issue in a way that
strengthens the economic base of the rural ranching West. I will work
with my colleagues to assure that such a bill is passed into law.
Mr. BURNS. Mr. President, I rise today to support the introduction of
the livestock grazing bill offered by Senator Domenici, myself, and
others. This is a bill that will allow us to set the stage for the
future grazing and land use access of the livestock industry. This is
extremely important in the West, and in particular my State of Montana.
This is a bill that will provide security and stability to the
livestock producers--those people who live, and work 365 days a year,
on or near the public lands.
For years there has been debate on the purpose and scope of the
intent of the language that a grazing bill would offer. Many people
have attempted to make this a single issue bill. This attempt may be
the case, to those who, do nothing more than depend upon the farmer and
rancher for the food and fiber they enjoy in their daily lives. But to
the rancher, or anybody or any group this is the first step to creating
some sense of stability for them on public lands. For the rancher, this
is the first step they have seen, that will provide them with the
security they need to operate their grazing permits with the sense of
purpose and a future. The purpose of this bill is to provide a future
for those hard-working men and women that provide the best and least
expensive food supply to this Nation and the world.
Too many times the ability of these people to use the public lands
has been threatened by forces who neither care about the vitality and
well-being of the communities. People who have no idea of what the
issue is. This is an issue of allowing producers and permit holders to
use the land. For it is in this use that the land is made healthy, that
our country thrives, and the public is provided an opportunity to put
back something into the land.
In the recent past in my State of Montana this land use has been
threatened by special interests. Interest groups with no understanding
of what grazing and the livestock industry are all about. In a little
known area, called the Bitterroot Forest, history was made by the stand
that the permit holders made in defending their rights to use and graze
public lands. However, this action cost the Federal Government
thousands of dollars and strained the relations between the land use
groups and the Government. All this action was brought on, due to the
requirements of the land managers to complete certain environmental
requirements. Requirements set forth under the provisions in the
National Environmental Policy Act of 1969.
This case was developed as a result of the failure of the Federal
Government of complete NEPA compliance on permit holders allotments. As
a result, it threatened the ability of this particular group of
ranchers to work, to graze cattle, and provide for their families. The
permit holders, in this example and many more like it, were held
hostage to the whims and of the special interest groups and the Federal
courts. Held hostage by the very laws that were designed to protect
them and their way of living. I find it ironic that those permit
holders suffered financial loss and mental anguish. They were the only
ones who did. All other interests including the Forest Service
personnel who were charged to do the required work, did not lose a pay
check.
Under the language in this bill we have provided for the security of
the permit holders, and the health and future of the land. In this bill
we continue to use the land management plans as a way to protect the
land, and at the same time give the permit holders an opportunity to
have access to the land for their use.
Mr. President, this bill is the first step to developing working
arrangements between the Government and the people on the land. It is
an opportunity to have all parties working together to set the
standards for what is best for the land and the people of this country.
Mr. SIMPSON. Mr. President, I rise to express my support for the
Livestock Grazing Act introduced by my colleague and good friend,
Senator Domenici. He and his staff--especially Marron Lee--have done an
outstanding job leading the charge for responsible grazing fee reform.
I commend them for working so doggedly to produce the best bill
possible.
Mr. President, I say ``best bill possible'' because there cannot be a
perfect bill. With the number of diverse interests represented
throughout our great American West, no legislation in this area will
satisfy everyone. But truly, the widespread support for this bill has
been impressive.
Of course, I have heard some rumblings of discontent from those
wishing to modify specific portions of this legislation. I ask those
individuals to work with us, to let us know your thoughts as this bill
moves through the committee process. We will do our best to attend to
your concerns. There are, however, certain things we must all bear in
mind. First, this bill is by far better than the alternative of having
no bill, and second, we must not turn this bill into a ``Christmas wish
list.'' Doing so could spell defeat for this legislation and, in turn,
subject our western livestock industry to an uncertain future.
I am most pleased by a number of provisions contained in this
legislation that will benefit the Wyoming ranching industry. I would
like to quickly address a few of these.
First, the bill will allow ranchers to own, in proportion to their
investment in the overall cost, title to improvements located on
Federal lands. This is far more fair than the administration's
regulations requiring ranchers to pay for the improvement, while
cedingownership with the Government. Mr.
[[Page
S7502]]
President, that alternative is wrongly conceived. It amounts simply to
a form of tax on our ranchers, taking their scarce assets and
transferring them to the Federal Government.
We also address the critical issue of water rights. The Western
States are not blessed with the almost unlimited supply of water that
our Eastern neighbors enjoy. Western water law was created to manage
this precious resource. Much of this law predates the birth of many of
our Western States and works very well without the help of the Federal
Government, thank you. This legislation directs Federal agencies to
respect established State water law.
This legislation, unlike the administration's regulations, will leave
certain aspects of rangeland management in the hands of those who have
been responsible stewards of the public lands for over 100 years--the
permittees, lessees, and landowners. Additionally, the new resource and
grazing advisory council structure will allow other interests
representing recreation and the environment to be adequately
represented in the management process.
Finally, this legislation addresses the ever-contentious fee issue.
Recall that not too long ago, many in this distinguished body were
concerned that the ranching community was not paying a fair price for
the opportunity to graze livestock on the public lands. This
legislation will fairly increase that fee but keep it short of levels
that would quickly bankrupt many hard-working families.
Mr. President, our American ranching industry has been a unique way
of life for well over 100 years. Through the enactment of responsible
legislation we can ensure that this industry, while still facing a
number of significant challenges, will at least have a chance to remain
viable well into the next century.
Mr. DASCHLE. Mr. President, Americans rely on Federal lands for a
wide variety of purposes. Among them is rangeland for livestock
grazing. As we look to the future use of these lands, it is incumbent
upon us to implement commonsense policies that allow ranchers to graze
livestock on these public rangelands while managing them in a manner
that is consistent with long-term, sustainable use.
During the last 2 years, debate has raged over the appropriate
regulation of Federal grazing lands. Environmentalists and those
ranchers who graze on private land have argued for a more realistic fee
system, one that links the grazing fee to the private land lease rate.
Some have advocated stronger stewardship requirements. Meanwhile, as
grazing policy remains unresolved, we have seen cattle prices drop and
too many ranchers teetering on the edge of financial viability.
There needs to be some fair and reasonable ground upon which
agreement can be reached that ensures public confidence in the
management and use of the Federal lands, while allowing ranchers the
certainty that, by working hard and playing by the rules, the Federal
lands will provide an opportunity to earn a decent living. In short,
the time has come to conclude this long debate and establish realistic
grazing standards once and for all.
Secretary Babbit's Rangeland Reform proposals have called attention
to this important issue and, at the same time, generated considerable
controversy. While an open discussion of grazing reform is needed, a
rising tide of misunderstanding and distrust has hampered the
development of a broadly supportable solution.
Today, Senator Domenici is introducing the Livestock Grazing Act,
which is intended to provide much needed closure to this debate as well
as certainty for the many ranchers who rely on the Federal lands for
grazing. I commend Senator Domenici for investing the hard work and
energy in meeting with the ranching community and fashioning a bill
that enjoys their support. His bill represents an essential step in
moving grazing reform to closure.
I support much of the Domenici bill. It provides a valuable framework
for addressing the critical issues of the fee, range management, and
oversight, and, ultimately, I expect it to provide the foundation for
the development of a balanced and reasonable approach to stewardship
that addresses legitimate concerns of all interested groups.
For example, I call attention to the provision in the bill that
establishes separate management of the national grasslands under the
Department of Agriculture. This initiative will help ensure that
management of those lands is as sensitive as possible to the unique
needs of ranchers.
Currently, grasslands are subjected to rules and procedures that make
sense for large expanses of national forests but not necessarily for
grazing. In South Dakota, most ranchers who graze cattle on Federal
lands do so on Forest Service lands. Ranchers in my home State feel a
separate management unit for grasslands will allow them to ranch
better. This legislation will accomplish that important objective.
Congress' challenge is to strike a balance between the recognition of
regional environmental differences and the need to ensure a basic level
of environmental protection. It is to reform the grazing fee, without
putting an untenable financial squeeze on hard-working ranchers. And it
is to strike a balance between the desire to provide an opportunity for
input into range management decisions from the general public and the
recognition that these decision have special ramifications for the
economic security of those using the land.
We have not yet achieved that balance. But I am optimistic that we
can, and I will devote my energies to working with Senator Domenici and
others toward that goal.
This is one of the reasons I have invited Secretary of Agriculture
Dan Glickman to visit with South Dakota ranchers next week in Rapid
City. I want Secretary Glickman to hear first hand how those whose
livelihoods are affected by Federal land management policies feel about
the grazing issue. Their experience must be part of the solution sought
in this debate.
Senator Domenici has expressed a desire to move grazing reform
legislation with bipartisan support. While some initial concern has
been raised that the Livestock Grazing Act, as currently drafted, may
not yet achieve the balance needed to ensure consideration of all
legitimate interests in the management of the range, he has given
Congress a solid place to start. I hope that, in the weeks to come, any
contentious issues can be worked out to the mutual satisfaction of all
interested parties, and that we can move to enact legislation with
broad-based support.
My goal is to pass Federal grazing reform. I am confident this
Congress can achieve that goal.
Mr. THOMAS. Mr. President, I rise today in strong support of the
legislation introduced by Senator Domenici, the Livestock Grazing Act.
This bill is a reasonable proposal that will allow livestock producers
in the West to continue to operate on public lands and will protect the
public range for multiple-use purposes.
Today, western livestock producers are encountering many challenges.
In addition to struggling because of low market prices for many
products and fighting losses from predators, livestock producers in the
West are now faced with regulations proposed by Interior Secretary
Bruce Babbitt that will put them out of business. Secretary Babbitt's
so-called ``Rangeland Reform '94'' proposal to reform public land
grazing practices is nothing but a thinly veiled attempt to end
livestock grazing on these areas.
The people of Wyoming and the West rely on having access to public
lands for their livelihood. Over the last 100 years, this process has
worked well. Westerners were able to use these lands for multiple uses
such as grazing, oil and gas exploration, and recreation and in turn
provided the rest of the Nation with high quality food products and
other commodities. Unfortunately, the Department of the Interior has
now taken a number of actions that will destroy the concept of multiple
use of public lands and will cost jobs and harm local economies across
Wyoming and the West.
The Livestock Grazing Act is designed to reverse this disturbing
trend. This legislation will provide western livestock producers with a
lifeline to survive the Clinton administration's efforts to destroy
their way of life. The measure is a reasonable attempt to solve the
long-standing dispute over grazing fees on public lands and many other
issues which have caused great discontent in Congress and across the
country. [[Page
S7503]]
Let me focus on a few provisions in the bill which are particularly
important to the people of my State. First, the legislation establishes
a grazing fee formula that will be tied to market values. This is a
fair and equitable approach to resolving the fee formula dispute and
will end the unfair comparison between private and public fee rates on
Federal lands.
Second, the legislation will provide permittees with the assurance
that they will be allowed to graze a certain number of livestock on
their allotment. For over 50 years, BLM grazing permittees have known
they had a priority position for a specific number of Federal animal
unit months [AUM's] on their allotments. These so-called preference
levels are attached to the private lands of the lessee and influence
the value of the privately owned base property. Preference levels are
particularly important to folks in my State where there is a large
amount of checkerboard land, which is commingled Federal and private
property.
Unfortunately, Secretary Babbitt's ``Rangeland Reform '94'' proposal
attempts to radically revised the concept of grazing preference by
giving Federal agents the authority to determine the appropriate number
of AUM's attached to a lease. The Secretary wants to set AUM's for
permittees on an arbitrary basis at the whim of the local Federal
officials. This would cause instability throughout western livestock
communities and threaten the economic value of western family ranches.
The Livestock Grazing Act would stop the Secretary's misguided efforts
by codifying the concept of grazing preference and giving western
ranchers the surety they need to continue operating on Federal lands.
Mr. President, these are just two examples of the important actions
taken by Senator Domenici in this bill that support western livestock
producers. The time has come for Congress to assert itself regarding
the issue of grazing on public lands in the West and stop Secretary
Babbitt's unending assault on western communities and our western way
of life. Although the Clinton administration and Secretary Babbitt
would like folks to believe ranchers in the West are simply welfare
cowboys, nothing could be further from the truth. These people are not
taking advantage of the Government, but simply trying to make a
reasonable living and raise their families.
I strongly support the Livestock Grazing Act and hope that we can
take quick action on this measure in order to allow western livestock
producers to continue their important work.
Mr. DORGAN. Mr. President, the sponsor of this bill, the Senator from
New Mexico, has made a sincere attempt to draft a good management plan
for our western public lands, and I have agreed to cosponsor it.
Although I want to see changes in several areas of this bill, overall
it is a good plan for responsible management of our huge public trust
in the West, imposing reasonable rules for the grazing of livestock and
rangeland improvement while safeguarding the natural environment.
Senator Domenici has indicated his intent to work with Senators of
both parties toward a consensus on this legislation. I appreciate his
flexibility, but I particularly appreciate the Senator's addition to
his bill of title II, provisions I and others from the Northern Plains
have submitted dealing specifically with the national grasslands.
In fact, the Grasslands provisions are the primary reason that I am
cosponsoring this bill.
Let me explain. Except for the grasslands provisions, this bill deals
exclusively with lands supervised by the Department of the Interior. In
North Dakota, however, land managed by Interior amounts to about two
townships out of a State of 46 million acres. On the other land, North
Dakota is host to 1.2 million acres of the national grasslands, which
are managed by the U.S. Forest Service of USDA.
The main purpose of the grasslands provisions is to give the
Secretary of Agriculture more flexibility in shaping the administration
of the Grasslands.
I have worked with the ranchers in North Dakota and with the Forest
Service in recent years, searching for ways the Secretary of
Agriculture and the Forest Service could reorder the bureaucratic
framework under which the Grasslands are managed. The Forest Service
has been cooperative in that search, but I finally had to conclude that
the Forest Service and USDA are legally prevented from the kind of
change I believe is needed.
In the 1970's the grasslands were joined by statute to the entire
National Forest System, managed by the Forest Service. That means the
grasslands are enmeshed in the mounds and reams of paper that prescribe
the layers of procedure, planning, management, and so forth, for the
national forests.
Let me note here that land ownership in the grasslands areas of my
state is much different than what you find among most of the great
expanses of Federal lands in the West.
Most of the grasslands were owned earlier in this century by private
farmers and ranchers, but were abandoned or lost to debt, and taken
over by the Federal Government. Today this is not a region of big
ranches. It is an area of small, and mid-sized ranchers where land
ownership is extensively interspersed among individual families, the
Forest Service, the State of North Dakota, and the Bureau of Land
Management.
The proper approach in management of such rangeland, it seems to me,
must be a cooperative venture between the ranchers and the Forest
Service, drawing upon the best expertise of range scientists, wildlife
specialists, and others who can help maintain and improve conditions in
the grasslands.
The main focus of such a cooperative venture must be how to best
manage and nurture the grasslands so they remain healthy and productive
for the benefit of future generations of people and wildlife.
Somehow, that focus is lost in the reams of Forest System rules and
regulations and planning documents that are supposed to address the
grasslands. In reading those documents you would hardly know that there
are cows on the grasslands when, in fact, ranching is the main human
activity there by a long shot.
So, the grasslands provisions of this bill give the Secretary
important latitude in changing the administrative structure under which
the grasslands are managed. The provisions essentially restate the
intent of the 1937 Federal act that set aside the grasslands: A call
for conscientious range management that would build and preserve a
healthy grassland resource.
And, where soil conservation and general range health are considered,
title II also tries to return grasslands management to a more
cooperative venture between the Forest Service and our State-chartered
grazing associations.
The grasslands provisions do not dictate a specific administrative
structure the Secretary must adopt for the grasslands. So, to a large
extent, those provisions of the bill speak mostly to what can happen
for the grasslands under a new design of Forest Service management, and
do not say specifically what must happen.
The grasslands provisions will, I believe, help harvest the expertise
and enthusiasm of grasslands area residents, including ranchers, for
better local input into managing this critical natural area in my
State.
The provisions are certainly not a step back from responsible
management and protection of the natural resources. All Federal
environmental laws, including the National Environmental Protection
Act, Endangered Species Act, Clean Water Act, still apply. If anything,
the grasslands provisions will encourage better attention to the spirit
of our environmental laws because more people who live in the
grasslands region, particularly those with expertise in areas of
conservation and grassland agriculture, will be participating in how
the lands are managed.
This is the kind of approach to public lands management that the
people of North Dakota want. I should note that the 1995 North Dakota
Legislature unanimously recommended the change we have proposed in the
grasslands law.
Finally, I ask unanimous consent to print the proposed grassland
provisions here in the Record as a means of distributing them for
comment and discussion.
There being no objection, the material was ordered to be printed in
the Record; as follows:
[[Page
S7504]]
TITLE II--GRASSLANDS
SEC. 201 REMOVAL OF GRASSLANDS FROM NATIONAL FOREST SYSTEM
(a) Findings.--Congress finds that the inclusion of the
national grasslands (and land utilization projects
administered under Title III of the Bankhead Jones Farm
Tenant Act) within the Forest System contrains the Secretary
in managing the national grasslands as intended under the
Bankhead-Jones Farm Tenant Act.
(b) Amendment of the Forest and Rangeland Renewable
Resources Planning Act of 1974.--Section 11(a) of the Forest
and Rangeland Renewable Resources Planning Act of 1974 (16
U.S.C. 1609(a)) is amended in the second sentence by striking
``the national grasslands and land utilization projects
administered under Title III of the Bankhead-Jones Farm
Tenant Act (50 Stat. 525, 7 U.S.C. 1010-1012)''.
(c) Amendment of the Bankhead-Jones Farm Tenant Act.--
Section 31 of the Bankhead-Jones Farm Tenant Act (7 U.S.C.
1010) is amended by designating current Sec. 31 as subsection
(a) to read as follows:
Sec. 1010. Land conservation and land utilization
To accomplish the purposes stated in the preamble of this
act, the Secretary is authorized and directed to develop a
program of land conservation and utilization as a basis for
grassland agriculture, to promote secure occupancy and
economic stability of farms, and thus assist in controlling
soil erosion, preserving natural resources, protecting fish
and wildlife, developing and protecting recreational
facilities, mitigating flood damages, preventing impairment
of dams and reservoirs, developing energy resources,
protecting the watersheds of navigable streams, conserving
surface and subsurface moisture, and protecting the public
lands, health, safety, and welfare, but is not authorized to
build industrial parks or establish private industrial or
commercial enterprises. The Secretary, in cooperation and
partnership with grazing associations, is authorized and
directed to issue renewable livestock grazing leases to
achieve the land conservation and utilization goals of this
section.
And adding a new subsection (b) as follows:
National Grasslands Fee Adjustments for Conservation
Practices to be Retained as Implemented by the Secretary.--A
reduction in grazing fees for national grasslands will be
allowed for conservation practices and administrative duties
performed by grazing associations.
______
By Mr. GORTON (for himself, Mr. Burns, Mr. Murkowski, Mr.
Stevens, Mr. Kempthorne, Mr. Craig, Mr. Baucus, Mr. Packwood,
and Mr. Hatfield):
S. 853. A bill to amend title 28, United States Code, to divide the
ninth judicial circuit of the United States into two circuits, and for
other purposes; to the Committee on the Judiciary.
the ninth circuit court of appeals reorganization act of 1995
Mr. GORTON. Mr. President, my purpose today is to introduce the Ninth
Circuit Court of Appeals Reorganization Act of 1995, which is similar
to measures I introduced in 1983, 1989, and 1991. This measure has the
cosponsorship of Senators Burns, Murkowski, Stevens, Kempthorne, Craig,
Baucus, Packwood, and Hatfield, who represent all the States forming
the new proposed circuit. This proposal will divide the ninth circuit,
the largest circuit in the country, into two separate circuits of more
manageable size and responsibility. This division would leave the ninth
circuit composed of Arizona, California, Hawaii, Nevada, Guam, and the
Northern Mariana Islands, and would create a new twelfth circuit
composed of Alaska, Idaho, Montana, Oregon, and Washington. Personally,
I believe that the ninth circuit should be divided into three new
circuits, but the composition for the two southern circuits should be
determined by the elected representatives of those States, to whose
judgment I will defer.
Today the ninth circuit is by far the largest of the thirteen
judicial circuits, measured both by number of judges and by caseload.
It has 28 active judges, 11 more than any other. Last year it had an
astounding 8,092 new filings, almost 2,000 more than the next busiest
circuit. It serves over 45 million people, almost 60 percent more than
are served by the next largest circuit. Moreover, the population in the
States and territories that comprise the ninth circuit is the fastest-
growing in the Nation.
Mr. President, the deplorable consequence of the massive size of this
circuit is a marked decrease in the consistency of justice provided by
ninth circuit courts. Judges are unable to keep abreast of legal
developments even within their own jurisdiction--to say nothing of lay
citizens' inability to keep abreast. The large number of judges
scattered over a large area inevitably results in difficulty in
reaching consistent circuit decisions. These judges have nearly
unmanageable caseloads with little time to review the voluminous case
law within the jurisdiction or to consult with their fellow circuit
colleagues. As a result, legal opinions tend to be very narrow with
little precedential value, merely exacerbating the problem. As a former
attorney general for the State of Washington, I personally have
experienced the unique frustrations and difficulties of practicing
before the ninth circuit.
Compounding the problem for the Northwest is that 55 percent of the
case filings in the ninth circuit are from California alone.
Consequently, the remaining States in the ninth circuit, including my
State of Washington and our Northwest neighbors, are dominated by
California judges and California judicial philosophy. That trend cannot
help but persist as the number of cases filed by California's litigious
and exploding population continues to rise. The Northwestern States
confront issues that are fundamentally unique to that region, issues
that are central to the lives of citizens in the Northwest, but which
are little more than one of many newspaper articles in California. In
sum, the interests of the Northwest cannot be fully appreciated or
addressed from a California perspective.
This initiative, Mr. President, is long overdue. As early as 1973,
the Congressional Commission on the Revision of the Federal Court
Appellate System recommended that the ninth circuit be divided. In
addition, the U.S. Judicial Conference found that increasing the number
of judges in any circuit court beyond 15 would create an unworkable
situation. The American Bar Association also adopted a resolution
expressing the desirability of dividing the ninth circuit to help
realign the U.S. appellate courts. Earlier bills on the ninth circuit
reorganization that I introduced during the 101st and 102d Congresses--
and which were virtually identical to this bill--earned the support of
practitioners and judges in the ninth circuit, attorneys general of the
western States, the Department of Justice, and the former Chief
Justice of the U.S. Supreme Court, Warren E. Burger.
The leadership of the ninth circuit has not donned blinders to the
difficulties inherent in a circuit court of this size and workload. It
has responded, however, by adopting a number of innovative but
ultimately ineffectual approaches to these problems. For example the
ninth circuit has divided itself into three administrative divisions:
the northern unit consists of the five Northwestern States that would
comprise the proposed twelfth circuit, and the combined middle and
southern units is identical to the restructured ninth circuit. This
method, however, does little more than recognize the problem without
solving it.
Another innovation of the ninth circuit is the limited en banc court,
for which a panel of 11 of the 28 judges will be chosen by lot to hear
an individual case. Such panels, however, further contribute to the
inherent unpredictability of a jurisdiction as large as the ninth
circuit. Lawyers often must tell their clients that they cannot begin
to predict the likely outcome of an appeal until the panel has been
identified. Mr. President, justice should not be determined by lot.
Moreover, I have serious reservations about any method which would
permit a small minority--as few as six of the sitting judges--to
dictate the outcome of a case contrary to the judgment of a large
majority, solely depending on the luck of the draw.
Despite these attempts to solve the problem, the performance of the
ninth circuit has gotten worse, not better. Its judges are falling
further and further behind. Despite only a moderate increase in new
filings for appeal, the number of pending cases swelled by almost 20
percent in the last year. The ninth circuit now is the slowest of 12
regional circuits in hearing and deciding appeals, on average taking a
full 16 months. Mr. President, justice delayed is justice denied.
The 45 million residents within the ninth circuit continue to pay the
high costs of an unpredictable body of case law and an overburdened
court system. They wait years before cases are heard and decided,
prompting many to forego their rights to judicial redress. Residents in
the Northwest, in particular, [[Page
S7505]] are concerned about the
growing inability of the ninth circuit to handle the boom in criminal
cases stemming from stepped-up enforcement of our drug laws.
The swift and sure administration of justice is a right that should
no longer be compromised in the ninth circuit. I urge my colleagues to
support this important legislation. Mr. President, I ask unanimous
consent that the complete text of my bill be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 853
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Ninth Circuit Court of
Appeals Reorganization Act of 1995''.
SEC. 2. NUMBER AND COMPOSITION OF CIRCUITS.
Section 41 of title 28, United States Code, is amended--
(1) in the matter before the table, by striking out
``thirteen'' and inserting in lieu thereof ``fourteen'';
(2) in the table, by striking out the item relating to the
ninth circuit and inserting in lieu thereof the following new
item:
Arizona, California, Hawaii, Nevada, Guam, Northern Mariana Islands.'';
and
(3) between the last 2 items of the table, by inserting the
following new item:
Alaska, Idaho, Montana, Oregon, Washington.''..........................
SEC. 3. NUMBER OF CIRCUIT JUDGES.
The table in section 44(a) of title 28, United States Code,
is amended--
(1) by striking out the item relating to the ninth circuit
and inserting in lieu thereof the following new item:
``Ninth.......................................................19'';....
a
Amendments:
Cosponsors:
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
Sponsor:
Summary:
All articles in Senate section
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
(Senate - May 25, 1995)
Text of this article available as:
TXT
PDF
[Pages
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[[Page
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STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. JOHNSTON (for himself, Mr. Faircloth, Mr. Breaux, Mr.
Pressler, Mr. Dorgan, Mr. Lott, Mr. Dole, Mr. Murkowski, and
Mr. Heflin)
S. 851. A bill to amend the Federal Water Pollution Control Act to
reform the wetlands regulatory program, and for other purposes; to the
Committee on Environment and Public Works.
the wetlands regulatory reform act of 1995
Mr. JOHNSTON. Mr. President, I am pleased today to introduce, along
with several of my colleagues, the Wetlands Regulatory Reform Act of
1995. I am particularly pleased to have as the lead cosponsor Senator
Faircloth, the chairman of the subcommittee of the Environment and
Public Works Committee that has jurisdiction over wetlands. Our bill
will reform the section 404 ``wetlands'' permitting program under the
Clean Water Act by introducing balance, common sense, and reason to a
Federal program that is causing unnecessary problems for my
constituents--and I believe for many of our citizens around the Nation.
In the closing days of the last Congress, I introduced a wetlands
bill,
S. 2506, so that my colleagues and other interested persons could
review the legislation and recommend improvements prior to
reintroduction in the 104th Congress. I appreciate the efforts of those
who took the time over the last few months to provide suggestions, many
of which are reflected in the current bill.
Mr. President, the current section 404 regulatory program has been
designed less by the elected representatives of the people than by
officials of the Corps of Engineers and the Environmental Protection
Agency and by Federal judges. In 1972, the Congress enacted the Federal
Water Pollution Control Act. Section 404 of that Act prohibited
``discharges of dredged or fill material'' into ``waters of the United
States;'' without a permit from the Secretary of the Army. At the time
of passage, ``waters of the United States'' was thought to be limited
to the navigable waters of the Nation.
From this narrow beginning has come a rigid regulatory program that
is devaluing property and preventing the construction of housing, the
extension of airport runways, the construction of roads--often on lands
that rarely, if ever, have water on the surface but which,
nevertheless, are viewed as ``wetlands'' within the definition of
``waters of the United States''. And I might add, Mr. President, that
75 percent of the land that is being regulated through the Section 404
program as ``wetlands'' or ``waters of the United States'' is
privately-owned property.
I do not believe that we, in Congress, intended for the Section 404
program to become a rigid, broad Federal land use program that affects
primarily privately-owned property. Yet, the evidence is clear to me
that the Section 404 program has become just that. Therefore, Mr.
President, I believe that the time has come for the Congress to reform
this program to focus Federal regulatory authority on those wetlands
that are truly important functioning wetlands, to ensure that our
citizens can obtain permits through a reasonable process within a
reasonable period of time, and to ensure that this program is not
denying people the use of their property unless there is an overriding
reason to do so.
Mr. President, the Wetlands Regulatory Reform Act of 1995 proposes
several key changes to the current 404 program:
First, the bill provides a statutory definition of a jurisdictional
wetland. This is, of course, the crucial threshold question: what
wetlands are subject to Federal regulation? And yet, one can read the
entire Clean Water Act without finding the answer to this question.
Instead, the answer currently lies only in a manual prepared by the
Corps of Engineers in 1987. I think it is high
time that Congress make an explicit judgment on this matter and set
forth a definition in the statute itself.
The definition in our bill is essentially this: there must be water
on or above the surface of the ground for at least 21 consecutive days
during the growing season. This is virtually the same as the definition
in
H.R. 961, which passed the House last week.
During the debate in the House, it was claimed by opponent of the
bill that this definition excludes a huge portion of the wetlands that
are currently regulated. However, the claims varied widely, and did not
appear to be based on solid evidence. Although I think that these
claims are exaggerated I want to make sure that our definition does not
exclude wetlands that are truly important. Therefore, I intend to write
to the Clinton administration to ask them to provide the best evidence
available regarding the effect of our definition on the amount and
nature of wetland regulated, both nationwide and in Louisiana.
Second, this legislation will require that Federal jurisdictional
wetlands be classified into three categories: high, medium, and low
valued wetlands, based on the relative wetlands functions present.
Today, the Section 404 program regulates all wetlands equally rigidly,
whether the wetland is a pristine, high-value wetland, a wet spot in a
field, or a ``wetland'' in the middle of an industrial area. This
treatment of wetlands defies logic and common sense.
My legislation will require the Corps of Engineers to classify
wetlands based on their functions, and then regulate them accordingly.
Class A, high-value, wetlands will be regulated under the current
``sequencing'' methodology, which first seeks to avoid adverse effects
on wetlands, then attempts to minimize those adverse effects that
cannot be avoided, and finally calls for mitigation of any adverse
effects that cannot be avoided or minimized. Class B, medium-value,
wetlands will be regulated under a balancing test, which does not
require the avoidance step. Finally, Class C, low-value, wetlands will
not be regulated by the Federal Government, but may be regulated by the
State if they so choose.
Third, this legislation removes the dual agency implementation of
this program, an aspect of the program that is particularly confusing
and troublesome to our constituents. Today, the Army Corps of Engineers
issues Section 404 permits, but the Environmental Protection Agency may
veto the decision of the Corps to issue the permit. Although EPA
actually exercises its veto power infrequently, I understand that veto
is threatened often, causing undue delays and repeated multi-agency
consultations. My legislation removes the EPA veto, and instead simply
requires the Corps to consult with EPA before acting.
Similarly, current law allows the EPA to veto permit decisions made
by State that have assumed responsibility for the section 404 program.
Our bill makes two changes to this regime. First, the Corps, instead of
the EPA, becomes responsible for overseeing States that have assumed
responsibility for the program. This is done in order to consolidate
responsibility in a single Federal agency. Second, the bill deletes the
veto authority as an unnecessary interference with State administration
of the program. If the Corps determines that the State is
not implementing the program appropriately, the Corps has the
authority, which my bill does not change, to withdraw approval of the
State program and return the program to Federal hands. But as long as
the State is in charge, its individual permit decisions should not be
subject to veto from Washington.
Fourth, mitigation banking is authorized and encouraged by the bill
as a sound means to return wetlands functions to the environment. There
are a number of mitigation banking projects now around the Nation. The
experience with these projects is proving that mitigation banking holds
great promise as a means of restoring, enhancing, reclaiming, and even
creating wetlands to offset the wetlands disturbances that are
permitted under the section 404 program. Mitigation banking is the type
of market driven mechanism that I believe we must incorporate in our
national environmental laws if we are to achieve our national
environmental goals.
Finally, this legislation will require that steps be taken to provide
notice to our citizens regarding the location of Federal jurisdictional
wetlands. Remarkably, Mr. President, the Federal Government is
regulating over 100 million acres of land, over 75 million acres of
which is privately owned, yet there are no maps posted to inform
citizens about the location of these lands. Perhaps this would not be a
problem if [[Page
S7499]] Federal jurisdictional wetlands were only
swamps, marshes, bogs, and other such areas that are wet at the surface
for a significant portion of the year, and therefore relatively easy
for our citizens to identify. But land that is dry at the surface all
year long can also be a Federal jurisdictional wetland.
Without maps and other notices, only the most highly trained
technicians among our citizens can identify the subtle differences
between lands that are not subject to the section 404 program and those
that are. Thus, many people have bought land for home sites, only to
find out later that they have bought a Federal jurisdictional wetland
and cannot obtain a permit to build their house. We owe our citizens
better than that.
My legislation will require the Corps of Engineers to immediately
post notices about the section 404 program near the property records in
the courthouses around the Nation, and to post maps of Federal
jurisdictional wetlands as those maps become available, including the
National Wetlands Inventory maps that are being developed by the
National Biological Survey.
Mr. President, there are many other improvements of the current
program in my legislation, including time limits on the issuance of
section 404 permits, an administrative appeal process, and the
designation of the Secretary of Agriculture to delineate wetlands on
agricultural lands.
As I mentioned, our bill has virtually the same definition of wetland
as the House-passed clean water bill,
H.R. 961. Although there are
several other comparable provisions in the two bills, our legislation
varies from the House-passed bill in at least one important respect.
Our legislation does not provide a mechanism for obtaining compensation
from the Federal Government when private property is taken through the
operation of the 404 program. I believe that the impact of the section
404 program on private property rights is a very important issue.
However, I also believe that compensation is an extraordinarily
complex and controversial issue that overarches all environmental
regulations, not just those relating to wetlands. Thus, rather than
attempting to resolve the compensation issue in this bill, we have
chosen to include provisions in the legislation that will help ensure
that the Section 404 Program does not result in takings of private
property in the first place. Therefore, in addition to the many
provisions of the bill that will make the wetlands program more
balanced and rational, it also directs Federal officials to implement
the program in a manner that minimizes the adverse effects on the use
and value of privately-owned property.
I would be remiss if I did not comment on the recently-issued study
of wetlands by the National Academy of Sciences. The report reaches
several conclusions that are reflected in this legislation.
Specifically, it recommends the consolidation of all wetlands
regulatory functions into a single Federal agency, a change that is
central to our legislation. It also recommends that regional variations
in wetlands be taken into account, which our bill does.
Some have suggested that the NAS study recommends against a
classification scheme such as is included in our bill, but I do not
read it that way. The report states that:
Some groups have suggested the creation of a national
scheme that would designate wetlands of high, medium, or low
value based on some general guidelines involving size,
location, or some other factor that does not require field
evaluation. It is not possible, however, to relate such
categories in a reliable way to objective measures of
wetlands functions, in part because the relationships between
categories and functions are variable and in part because we
still have insufficient knowledge of wetlands functions.
(Emphasis added.)
I read the report to warn against nationwide classification schemes
that do not take into account site-specific considerations, a point on
which I heartily agree. That is why our classification process is
initiated only in connection with the consideration of a permit
application or upon a request for classification of a specific piece of
property. The particular piece of property is classified after
considering site-specific factors, such as the significance of the
wetland ``to the long-term conservation of the aquatic system of which
the wetland is a part,'' and the ``scarcity of functioning wetlands
within the watershed or aquatic system.'' Thus, I do not see an
inconsistency between the NAS report and our bill with respect to
classification.
Even if the NAS study could be interpreted as expressing concern
about any classification scheme for wetlands, I would suggest that
those concerns should not be dispositive. Scientists and lawmakers
necessarily approach matters differently. Scientists are in the
business of achieving a more perfect state of knowledge, while
lawmakers are in the business of drawing regulatory lines and
allocating societal resources based on the information available. While
a scientist might prefer to wait for more information before
distinguishing among wetlands, Congress cannot wait because the present
regulatory scheme, which makes no distinctions among wetlands, is so
clearly ineffective at balancing wetlands protection against other
policy considerations.
Mr. President, reforming the wetlands regulatory program will be one
of my highest priorities in this Congress. I look forward to working
with my colleagues and others in an effort to make the program work
both for the environment and for our constituents.
Mr. BREAUX. Mr. President, I join with my colleague from Louisiana,
Senator J. Bennett Johnston, in introducing legislation today which
makes major reforms in Sec. 404 of the Federal Water Pollution Control
Act, also known a the Clean Water Act.
We all know Sec. 404 to be the wetlands regulatory program which has
caused so much controversy and so many problems. I have heard countless
complaints that the program has been implemented in an excessive and
restrictive manner for years, imposing unfair hardship on landowners,
businesses and local governments.
It is long overdue that the Sec. 404 program be reformed. It is long
overdue that the program be balanced, reasonable and fair. This bill
attempts to achieve those objectives.
One of the major features of the bill is its wetlands classification
system. I wholeheartedly endorse classifying and regulating wetlands by
the their value and function.
All wetlands are not equal in value and function, yet for years they
have been regulated that way. That way is wrong and we intend to change
it.
We do not have a wetlands classification system in current law. To be
fair and to strike balance and reason in wetlands regulation we must
identify and regulate according to the very real differences in
wetlands value and function.
For the first time, wetlands would be divided into three classes of
critical significance, Class A, significant, Class B, and marginal
value, Class C. Each class is defined to distinguish the different
values and functions found in wetlands.
Classes A and B wetlands would be regulated because they provide the
most valuable functions. A public interest test would have to be met
when regulating these two classes. Class C wetlands would not be
regulated because they are of marginal value.
Other major provisions of the bill include a definition of
jurisdictional wetlands, expansion of wetlands regulatory exemptions
and an expansion of regulated activities. Single agency program
jurisdiction and administration by the Corps of Engineers is
established.
Also included in the bill are exclusion of prior converted cropland
from Sec. 404 regulation, USDA delineation of wetlands on agricultural
land, and authorization of State permitting programs, and
administrative appeals program and a mitigation banking program. Public
information is required to be published about wetlands and their
regulation at the Federal and local levels.
The bill's policies attempt to strike a very simple and sound premise
in regulatory policy, that is, balance, reason and, most importantly,
fairness shall prevail.
These policies attempt to balance respect for the environment with
respect for property owners, in whose possession lies an estimated 75
percent of our wetlands in the lower 48 states.
In all that we do with regard to wetlands policy, we must always be
mindful and respectful of the fact that most [[Page
S7500]] of our
wetlands in the lower 48 States are privately owned.
Thank you, Mr. President, for this time to announce my support for
and sponsorship of the Wetlands Regulatory Reform Act of 1995.
I hope the Senate can begin hearings on the legislation and hear
solid testimony so that a final bill can be crafted.
Mr. PRESSLER. Mr. President, today I join Senator Faircloth and
Senator Johnston and others, in introducing legislation that addresses
a major concern of landowners, farmers, businesses, and average
citizens throughout the United States. The concern is wetlands.
Just last week, during consideration of the Clean Water Act, the
House of Representatives passed major revisions to our Federal wetlands
laws. It is now the Senate's turn to address this major issue. As
Chairman of the Senate Subcommittee on Wetlands, Senator Faircloth will
direct Senate efforts to bring much needed common sense to our Federal
wetlands laws. Very few Federal issues are more critical to South
Dakota property owners. Therefore, I look forward to working with
Senator Faircloth in making sure reforms are adopted during this
Congress.
Mr. President, current wetlands law is too broad. It is causing too
many problems throughout the country. Congress has never passed a
comprehensive law defining wetlands. Without such a definition, Federal
agencies have been recklessly pursuing control over private property in
the name of saving wetlands. The time to act has come.
Earlier this year, I introduced
S. 352, The Comprehensive Wetlands
Conservation and Management Act of 1995. A number of the provisions in
my legislation already have been adopted by the House, as part of its
reforms on wetlands. Also, I am pleased that most of
S. 352 is
incorporated in the bipartisan bill we are introducing today.
By introducing a bipartisan bill, one message is made clear:
Meaningful wetlands reform must be adopted this year.
One issue I reserve the right to address during future Senate debate
on wetlands reform is adequate compensation for private property
owners. Whenever the Federal Government takes land away from private
property owners, or significantly reduces the use of private property,
compensation is in order. There is no compensation provision in the
bill being introduced today. However, I intend to raise this issue
during floor debate on this subject. Compensation to private property
owners should be included in meaningful wetlands reform.
The primary purpose of today's legislation is to clearly define
wetlands in law and regulation. What the Federal Government should, or
should not be doing in this area needs to be clearly defined.
In addition, efforts must be made to ensure that any fine or penalty
is in line with violations. Many violations are incidental and can be
quickly repaired. Penalties should fit the crime. The bill we are
introducing today would set that kind of standard.
The bill would require certain criteria to be met and verified before
an area can be regulated as a wetland. Such an approach would be more
reliable in identifying true wetlands. It would prevent field
inspectors from mistakenly classifying as wetland dry, upland areas
that drain effectively. It also would eliminate a major source of
confusion and abuse caused by current regulations.
This bill also would give States and local governments the authority
to tailor the wetlands regulatory program to their own special
circumstances. This is greatly needed.
The bill also would clarify current agricultural exemptions and
provide that the Secretary of Agriculture shall identify agricultural
lands that are wetlands.
Mr. President, the time has come for the Senate to adopt wetlands
reform. Only through the kind of commonsense and balanced approach
proposed in this bill can the Nation's agricultural, business,
environmental, and individual interests be properly addressed.
Mr. President, thousands of South Dakotans have written, called, or
visited with me about the lack of definition of wetlands and the
haphazard rules and regulatory overkill taken by the Federal
Government. They rightly are concerned about the impact of the current
system on their ability to run their farms and businesses. South
Dakotans are law-abiding citizens who stand for fairness and balance in
the enforcement of the law. South Dakotans are conscientious stewards
of the land they have cared for and cultivated for generations. They
believe the time has come for a fair, balanced approach that protests
the environment as well as private property. I believe the bill we are
introducing today responds to this call for fairness from South Dakota
and across America.
Action on this issue is essential. I urge my colleagues to take a
close look at this bill and join in supporting it.
______
By Mr. DOMENICI (for himself, Mr. Craig, Mr. Brown, Mr. Campbell,
Mr. Hatch, Mr. Bennett, Mr. Burns, Mr. Simpson, Mr. Thomas, Mr.
Kyl, Mr. Pressler, Mr. Kempthorne, Mr. Conrad, Mr. Dorgan, Mr.
Dole, and Mr. Gramm):
S. 852. A bill to provide for uniform management of livestock grazing
on Federal land, and for other purposes; to the Committee on Energy and
Natural Resources.
the livestock grazing act of 1995
Mr. DOMENICI. Mr. President, over the past several years, a series of
legislative and administrative actions have haunted the Federal lands
ranchers. A cloud has been hanging over their livelihoods. Today, with
the introduction of the Livestock Grazing Act of 1995 [LGA], we intend
to roll back that cloud.
In the wings, however, there awaits an onerous proposal that will
jeopardize the very fabric of the Federal lands rancher's livelihood.
On August 21, 1995, Secretary Babbitt's Rangeland Reform '94 proposal
becomes final. Earlier this year, the Secretary agreed to provide a 6-
month window of opportunity for Congress to deliberate over the
concerns raised during the 2-year debate on the proposed rule. LGA is
the product of that temporary stay; it is a product that will provide
stability for ranchers across the West.
Many issues have been addressed in our bill. For example, issues such
as public input into the management of our Federal lands; standards and
guidelines that will reflect the diversity of the western rangelands;
and incentive for permitees to contribute private dollars to betterment
of our Federal lands; a fair method in gaining ownership and control of
water rights; a subleasing provision that will help the elderly and
family ranchers; and, a grazing fee formula that will generate more
revenue for the American taxpayers.
There are many more aspects of this legislation, nevertheless, I am
going to focus on the new grazing fee and the formula that will
generate an increase in revenue to the Treasury.
Although the grazing fee does not affect the condition of our
rangelands, I did make a commitment to increase the grazing fee during
the October debate on Rangeland Reform '94. Today, through this
legislation that pledge has been honored. LGA includes a grazing
formula that will provide for a fair return for the utilization of our
Federal lands.
In the past, the Federal lands grazing fee was based on a formula
that was too complex and subject to many interpretations. A simpler and
more understandable fee formula will help ensure a greater amount of
stability to the Federal lands ranchers.
The LGA fee establishes a fee formula that is based on the gross
value of production for cattle. Although this formula is based solely
on the value of production for cattle, an adjustment has been made to
take into consideration the differential in the production value
between a cow and animals that are not as large. This adjustment will
not increase the numbers of sheep and goats on the Federal lands, but
will merely take into account the considerable differences between the
cattle prices and the other two commodities.
This Gross Return Fee formula is based on the premise that the
western Federal lands rancher should pay a fair percentage of gross
production value that is gained by use of the Federal lands. Two key
features of this formula are that the fee approximates the value of the
forage from the gain in production value, and that it provides a fair
return to the Federal Government for that forage. [[Page
S7501]]
Mr. President, this formula is simple. As I explained earlier, the
current fee is convoluted. Establishing the grazing fee as a percentage
of return will assure that livestock ranchers are assessed on the same
basis of many other public lands users.se
As you may know, forage has no readily identifiable market value
until it is converted into beef, wool, mutton, or some other salable
animal product. Federal lands ranchers will--and have--willingly pay
for the opportunity to utilize this forage on Federal lands to attain a
gross value of livestock grazing on those lands. The Gross Return Fee
recognizes the value of the end product by establishing the grazing fee
as a percentage of this value.
The Gross Return Fee is critical to the continued viability of the
western livestock industry. Ranchers are the family farmers of the
West. The establishment of a fair and equitable grazing fee formula is
critical to their survival.
Additionally, the rancher is key to the rural western economy. Every
dollar a rancher spends yields an estimated $5 in economic activity
throughout the West. This economic activity is critical to social
fabric west, old or new.
In closing, Mr. President, the fee is only one component of this
legislation. The other aspects of this bill will be addressed by the
cosponsors of this legislation. Furthermore, a companion measure is
currently ready for introduction in the House of Representatives. This
will allow the Livestock Grazing Act of 1995 to be examined in full by
both bodies of Congress. I look forward to moving this legislation
through both Houses of Congress and removing the cloud that has been
hanging over the Federal lands rancher.
Mr. CRAIG. Mr. President, I along with 14 of my colleagues am
introducing the Livestock Grazing Act. This bill is intended to
establish the policy guidelines for grazing of livestock on Federal
lands in the Western States.
This bill is needed to resolve the ongoing debate over rangeland
reform and the establishment of fees. I strongly believe the Congress
must address this issue and resolve the ongoing debate over western
rangeland management. We must assure that the extensive Federal lands
in the West have a grazing policy that allows the families who depend
on these lands to continue to use these lands to make their
livelihoods.
We have crafted a bill that addresses the numerous issues that have
arisen on grazing on the public lands. This bill is a product of
extensive discussions with members of the grazing and academic
community. It addresses both rangeland reform and the fee issue.
It is my intention to hold hearings in the Senate Energy and Natural
Resources Subcommittee that I chair in the early summer and then to
promptly move a bill. I am pleased that the other body has a similar
schedule.
It is my intention to resolve this long-standing issue in a way that
strengthens the economic base of the rural ranching West. I will work
with my colleagues to assure that such a bill is passed into law.
Mr. BURNS. Mr. President, I rise today to support the introduction of
the livestock grazing bill offered by Senator Domenici, myself, and
others. This is a bill that will allow us to set the stage for the
future grazing and land use access of the livestock industry. This is
extremely important in the West, and in particular my State of Montana.
This is a bill that will provide security and stability to the
livestock producers--those people who live, and work 365 days a year,
on or near the public lands.
For years there has been debate on the purpose and scope of the
intent of the language that a grazing bill would offer. Many people
have attempted to make this a single issue bill. This attempt may be
the case, to those who, do nothing more than depend upon the farmer and
rancher for the food and fiber they enjoy in their daily lives. But to
the rancher, or anybody or any group this is the first step to creating
some sense of stability for them on public lands. For the rancher, this
is the first step they have seen, that will provide them with the
security they need to operate their grazing permits with the sense of
purpose and a future. The purpose of this bill is to provide a future
for those hard-working men and women that provide the best and least
expensive food supply to this Nation and the world.
Too many times the ability of these people to use the public lands
has been threatened by forces who neither care about the vitality and
well-being of the communities. People who have no idea of what the
issue is. This is an issue of allowing producers and permit holders to
use the land. For it is in this use that the land is made healthy, that
our country thrives, and the public is provided an opportunity to put
back something into the land.
In the recent past in my State of Montana this land use has been
threatened by special interests. Interest groups with no understanding
of what grazing and the livestock industry are all about. In a little
known area, called the Bitterroot Forest, history was made by the stand
that the permit holders made in defending their rights to use and graze
public lands. However, this action cost the Federal Government
thousands of dollars and strained the relations between the land use
groups and the Government. All this action was brought on, due to the
requirements of the land managers to complete certain environmental
requirements. Requirements set forth under the provisions in the
National Environmental Policy Act of 1969.
This case was developed as a result of the failure of the Federal
Government of complete NEPA compliance on permit holders allotments. As
a result, it threatened the ability of this particular group of
ranchers to work, to graze cattle, and provide for their families. The
permit holders, in this example and many more like it, were held
hostage to the whims and of the special interest groups and the Federal
courts. Held hostage by the very laws that were designed to protect
them and their way of living. I find it ironic that those permit
holders suffered financial loss and mental anguish. They were the only
ones who did. All other interests including the Forest Service
personnel who were charged to do the required work, did not lose a pay
check.
Under the language in this bill we have provided for the security of
the permit holders, and the health and future of the land. In this bill
we continue to use the land management plans as a way to protect the
land, and at the same time give the permit holders an opportunity to
have access to the land for their use.
Mr. President, this bill is the first step to developing working
arrangements between the Government and the people on the land. It is
an opportunity to have all parties working together to set the
standards for what is best for the land and the people of this country.
Mr. SIMPSON. Mr. President, I rise to express my support for the
Livestock Grazing Act introduced by my colleague and good friend,
Senator Domenici. He and his staff--especially Marron Lee--have done an
outstanding job leading the charge for responsible grazing fee reform.
I commend them for working so doggedly to produce the best bill
possible.
Mr. President, I say ``best bill possible'' because there cannot be a
perfect bill. With the number of diverse interests represented
throughout our great American West, no legislation in this area will
satisfy everyone. But truly, the widespread support for this bill has
been impressive.
Of course, I have heard some rumblings of discontent from those
wishing to modify specific portions of this legislation. I ask those
individuals to work with us, to let us know your thoughts as this bill
moves through the committee process. We will do our best to attend to
your concerns. There are, however, certain things we must all bear in
mind. First, this bill is by far better than the alternative of having
no bill, and second, we must not turn this bill into a ``Christmas wish
list.'' Doing so could spell defeat for this legislation and, in turn,
subject our western livestock industry to an uncertain future.
I am most pleased by a number of provisions contained in this
legislation that will benefit the Wyoming ranching industry. I would
like to quickly address a few of these.
First, the bill will allow ranchers to own, in proportion to their
investment in the overall cost, title to improvements located on
Federal lands. This is far more fair than the administration's
regulations requiring ranchers to pay for the improvement, while
cedingownership with the Government. Mr.
[[Page
S7502]]
President, that alternative is wrongly conceived. It amounts simply to
a form of tax on our ranchers, taking their scarce assets and
transferring them to the Federal Government.
We also address the critical issue of water rights. The Western
States are not blessed with the almost unlimited supply of water that
our Eastern neighbors enjoy. Western water law was created to manage
this precious resource. Much of this law predates the birth of many of
our Western States and works very well without the help of the Federal
Government, thank you. This legislation directs Federal agencies to
respect established State water law.
This legislation, unlike the administration's regulations, will leave
certain aspects of rangeland management in the hands of those who have
been responsible stewards of the public lands for over 100 years--the
permittees, lessees, and landowners. Additionally, the new resource and
grazing advisory council structure will allow other interests
representing recreation and the environment to be adequately
represented in the management process.
Finally, this legislation addresses the ever-contentious fee issue.
Recall that not too long ago, many in this distinguished body were
concerned that the ranching community was not paying a fair price for
the opportunity to graze livestock on the public lands. This
legislation will fairly increase that fee but keep it short of levels
that would quickly bankrupt many hard-working families.
Mr. President, our American ranching industry has been a unique way
of life for well over 100 years. Through the enactment of responsible
legislation we can ensure that this industry, while still facing a
number of significant challenges, will at least have a chance to remain
viable well into the next century.
Mr. DASCHLE. Mr. President, Americans rely on Federal lands for a
wide variety of purposes. Among them is rangeland for livestock
grazing. As we look to the future use of these lands, it is incumbent
upon us to implement commonsense policies that allow ranchers to graze
livestock on these public rangelands while managing them in a manner
that is consistent with long-term, sustainable use.
During the last 2 years, debate has raged over the appropriate
regulation of Federal grazing lands. Environmentalists and those
ranchers who graze on private land have argued for a more realistic fee
system, one that links the grazing fee to the private land lease rate.
Some have advocated stronger stewardship requirements. Meanwhile, as
grazing policy remains unresolved, we have seen cattle prices drop and
too many ranchers teetering on the edge of financial viability.
There needs to be some fair and reasonable ground upon which
agreement can be reached that ensures public confidence in the
management and use of the Federal lands, while allowing ranchers the
certainty that, by working hard and playing by the rules, the Federal
lands will provide an opportunity to earn a decent living. In short,
the time has come to conclude this long debate and establish realistic
grazing standards once and for all.
Secretary Babbit's Rangeland Reform proposals have called attention
to this important issue and, at the same time, generated considerable
controversy. While an open discussion of grazing reform is needed, a
rising tide of misunderstanding and distrust has hampered the
development of a broadly supportable solution.
Today, Senator Domenici is introducing the Livestock Grazing Act,
which is intended to provide much needed closure to this debate as well
as certainty for the many ranchers who rely on the Federal lands for
grazing. I commend Senator Domenici for investing the hard work and
energy in meeting with the ranching community and fashioning a bill
that enjoys their support. His bill represents an essential step in
moving grazing reform to closure.
I support much of the Domenici bill. It provides a valuable framework
for addressing the critical issues of the fee, range management, and
oversight, and, ultimately, I expect it to provide the foundation for
the development of a balanced and reasonable approach to stewardship
that addresses legitimate concerns of all interested groups.
For example, I call attention to the provision in the bill that
establishes separate management of the national grasslands under the
Department of Agriculture. This initiative will help ensure that
management of those lands is as sensitive as possible to the unique
needs of ranchers.
Currently, grasslands are subjected to rules and procedures that make
sense for large expanses of national forests but not necessarily for
grazing. In South Dakota, most ranchers who graze cattle on Federal
lands do so on Forest Service lands. Ranchers in my home State feel a
separate management unit for grasslands will allow them to ranch
better. This legislation will accomplish that important objective.
Congress' challenge is to strike a balance between the recognition of
regional environmental differences and the need to ensure a basic level
of environmental protection. It is to reform the grazing fee, without
putting an untenable financial squeeze on hard-working ranchers. And it
is to strike a balance between the desire to provide an opportunity for
input into range management decisions from the general public and the
recognition that these decision have special ramifications for the
economic security of those using the land.
We have not yet achieved that balance. But I am optimistic that we
can, and I will devote my energies to working with Senator Domenici and
others toward that goal.
This is one of the reasons I have invited Secretary of Agriculture
Dan Glickman to visit with South Dakota ranchers next week in Rapid
City. I want Secretary Glickman to hear first hand how those whose
livelihoods are affected by Federal land management policies feel about
the grazing issue. Their experience must be part of the solution sought
in this debate.
Senator Domenici has expressed a desire to move grazing reform
legislation with bipartisan support. While some initial concern has
been raised that the Livestock Grazing Act, as currently drafted, may
not yet achieve the balance needed to ensure consideration of all
legitimate interests in the management of the range, he has given
Congress a solid place to start. I hope that, in the weeks to come, any
contentious issues can be worked out to the mutual satisfaction of all
interested parties, and that we can move to enact legislation with
broad-based support.
My goal is to pass Federal grazing reform. I am confident this
Congress can achieve that goal.
Mr. THOMAS. Mr. President, I rise today in strong support of the
legislation introduced by Senator Domenici, the Livestock Grazing Act.
This bill is a reasonable proposal that will allow livestock producers
in the West to continue to operate on public lands and will protect the
public range for multiple-use purposes.
Today, western livestock producers are encountering many challenges.
In addition to struggling because of low market prices for many
products and fighting losses from predators, livestock producers in the
West are now faced with regulations proposed by Interior Secretary
Bruce Babbitt that will put them out of business. Secretary Babbitt's
so-called ``Rangeland Reform '94'' proposal to reform public land
grazing practices is nothing but a thinly veiled attempt to end
livestock grazing on these areas.
The people of Wyoming and the West rely on having access to public
lands for their livelihood. Over the last 100 years, this process has
worked well. Westerners were able to use these lands for multiple uses
such as grazing, oil and gas exploration, and recreation and in turn
provided the rest of the Nation with high quality food products and
other commodities. Unfortunately, the Department of the Interior has
now taken a number of actions that will destroy the concept of multiple
use of public lands and will cost jobs and harm local economies across
Wyoming and the West.
The Livestock Grazing Act is designed to reverse this disturbing
trend. This legislation will provide western livestock producers with a
lifeline to survive the Clinton administration's efforts to destroy
their way of life. The measure is a reasonable attempt to solve the
long-standing dispute over grazing fees on public lands and many other
issues which have caused great discontent in Congress and across the
country. [[Page
S7503]]
Let me focus on a few provisions in the bill which are particularly
important to the people of my State. First, the legislation establishes
a grazing fee formula that will be tied to market values. This is a
fair and equitable approach to resolving the fee formula dispute and
will end the unfair comparison between private and public fee rates on
Federal lands.
Second, the legislation will provide permittees with the assurance
that they will be allowed to graze a certain number of livestock on
their allotment. For over 50 years, BLM grazing permittees have known
they had a priority position for a specific number of Federal animal
unit months [AUM's] on their allotments. These so-called preference
levels are attached to the private lands of the lessee and influence
the value of the privately owned base property. Preference levels are
particularly important to folks in my State where there is a large
amount of checkerboard land, which is commingled Federal and private
property.
Unfortunately, Secretary Babbitt's ``Rangeland Reform '94'' proposal
attempts to radically revised the concept of grazing preference by
giving Federal agents the authority to determine the appropriate number
of AUM's attached to a lease. The Secretary wants to set AUM's for
permittees on an arbitrary basis at the whim of the local Federal
officials. This would cause instability throughout western livestock
communities and threaten the economic value of western family ranches.
The Livestock Grazing Act would stop the Secretary's misguided efforts
by codifying the concept of grazing preference and giving western
ranchers the surety they need to continue operating on Federal lands.
Mr. President, these are just two examples of the important actions
taken by Senator Domenici in this bill that support western livestock
producers. The time has come for Congress to assert itself regarding
the issue of grazing on public lands in the West and stop Secretary
Babbitt's unending assault on western communities and our western way
of life. Although the Clinton administration and Secretary Babbitt
would like folks to believe ranchers in the West are simply welfare
cowboys, nothing could be further from the truth. These people are not
taking advantage of the Government, but simply trying to make a
reasonable living and raise their families.
I strongly support the Livestock Grazing Act and hope that we can
take quick action on this measure in order to allow western livestock
producers to continue their important work.
Mr. DORGAN. Mr. President, the sponsor of this bill, the Senator from
New Mexico, has made a sincere attempt to draft a good management plan
for our western public lands, and I have agreed to cosponsor it.
Although I want to see changes in several areas of this bill, overall
it is a good plan for responsible management of our huge public trust
in the West, imposing reasonable rules for the grazing of livestock and
rangeland improvement while safeguarding the natural environment.
Senator Domenici has indicated his intent to work with Senators of
both parties toward a consensus on this legislation. I appreciate his
flexibility, but I particularly appreciate the Senator's addition to
his bill of title II, provisions I and others from the Northern Plains
have submitted dealing specifically with the national grasslands.
In fact, the Grasslands provisions are the primary reason that I am
cosponsoring this bill.
Let me explain. Except for the grasslands provisions, this bill deals
exclusively with lands supervised by the Department of the Interior. In
North Dakota, however, land managed by Interior amounts to about two
townships out of a State of 46 million acres. On the other land, North
Dakota is host to 1.2 million acres of the national grasslands, which
are managed by the U.S. Forest Service of USDA.
The main purpose of the grasslands provisions is to give the
Secretary of Agriculture more flexibility in shaping the administration
of the Grasslands.
I have worked with the ranchers in North Dakota and with the Forest
Service in recent years, searching for ways the Secretary of
Agriculture and the Forest Service could reorder the bureaucratic
framework under which the Grasslands are managed. The Forest Service
has been cooperative in that search, but I finally had to conclude that
the Forest Service and USDA are legally prevented from the kind of
change I believe is needed.
In the 1970's the grasslands were joined by statute to the entire
National Forest System, managed by the Forest Service. That means the
grasslands are enmeshed in the mounds and reams of paper that prescribe
the layers of procedure, planning, management, and so forth, for the
national forests.
Let me note here that land ownership in the grasslands areas of my
state is much different than what you find among most of the great
expanses of Federal lands in the West.
Most of the grasslands were owned earlier in this century by private
farmers and ranchers, but were abandoned or lost to debt, and taken
over by the Federal Government. Today this is not a region of big
ranches. It is an area of small, and mid-sized ranchers where land
ownership is extensively interspersed among individual families, the
Forest Service, the State of North Dakota, and the Bureau of Land
Management.
The proper approach in management of such rangeland, it seems to me,
must be a cooperative venture between the ranchers and the Forest
Service, drawing upon the best expertise of range scientists, wildlife
specialists, and others who can help maintain and improve conditions in
the grasslands.
The main focus of such a cooperative venture must be how to best
manage and nurture the grasslands so they remain healthy and productive
for the benefit of future generations of people and wildlife.
Somehow, that focus is lost in the reams of Forest System rules and
regulations and planning documents that are supposed to address the
grasslands. In reading those documents you would hardly know that there
are cows on the grasslands when, in fact, ranching is the main human
activity there by a long shot.
So, the grasslands provisions of this bill give the Secretary
important latitude in changing the administrative structure under which
the grasslands are managed. The provisions essentially restate the
intent of the 1937 Federal act that set aside the grasslands: A call
for conscientious range management that would build and preserve a
healthy grassland resource.
And, where soil conservation and general range health are considered,
title II also tries to return grasslands management to a more
cooperative venture between the Forest Service and our State-chartered
grazing associations.
The grasslands provisions do not dictate a specific administrative
structure the Secretary must adopt for the grasslands. So, to a large
extent, those provisions of the bill speak mostly to what can happen
for the grasslands under a new design of Forest Service management, and
do not say specifically what must happen.
The grasslands provisions will, I believe, help harvest the expertise
and enthusiasm of grasslands area residents, including ranchers, for
better local input into managing this critical natural area in my
State.
The provisions are certainly not a step back from responsible
management and protection of the natural resources. All Federal
environmental laws, including the National Environmental Protection
Act, Endangered Species Act, Clean Water Act, still apply. If anything,
the grasslands provisions will encourage better attention to the spirit
of our environmental laws because more people who live in the
grasslands region, particularly those with expertise in areas of
conservation and grassland agriculture, will be participating in how
the lands are managed.
This is the kind of approach to public lands management that the
people of North Dakota want. I should note that the 1995 North Dakota
Legislature unanimously recommended the change we have proposed in the
grasslands law.
Finally, I ask unanimous consent to print the proposed grassland
provisions here in the Record as a means of distributing them for
comment and discussion.
There being no objection, the material was ordered to be printed in
the Record; as follows:
[[Page
S7504]]
TITLE II--GRASSLANDS
SEC. 201 REMOVAL OF GRASSLANDS FROM NATIONAL FOREST SYSTEM
(a) Findings.--Congress finds that the inclusion of the
national grasslands (and land utilization projects
administered under Title III of the Bankhead Jones Farm
Tenant Act) within the Forest System contrains the Secretary
in managing the national grasslands as intended under the
Bankhead-Jones Farm Tenant Act.
(b) Amendment of the Forest and Rangeland Renewable
Resources Planning Act of 1974.--Section 11(a) of the Forest
and Rangeland Renewable Resources Planning Act of 1974 (16
U.S.C. 1609(a)) is amended in the second sentence by striking
``the national grasslands and land utilization projects
administered under Title III of the Bankhead-Jones Farm
Tenant Act (50 Stat. 525, 7 U.S.C. 1010-1012)''.
(c) Amendment of the Bankhead-Jones Farm Tenant Act.--
Section 31 of the Bankhead-Jones Farm Tenant Act (7 U.S.C.
1010) is amended by designating current Sec. 31 as subsection
(a) to read as follows:
Sec. 1010. Land conservation and land utilization
To accomplish the purposes stated in the preamble of this
act, the Secretary is authorized and directed to develop a
program of land conservation and utilization as a basis for
grassland agriculture, to promote secure occupancy and
economic stability of farms, and thus assist in controlling
soil erosion, preserving natural resources, protecting fish
and wildlife, developing and protecting recreational
facilities, mitigating flood damages, preventing impairment
of dams and reservoirs, developing energy resources,
protecting the watersheds of navigable streams, conserving
surface and subsurface moisture, and protecting the public
lands, health, safety, and welfare, but is not authorized to
build industrial parks or establish private industrial or
commercial enterprises. The Secretary, in cooperation and
partnership with grazing associations, is authorized and
directed to issue renewable livestock grazing leases to
achieve the land conservation and utilization goals of this
section.
And adding a new subsection (b) as follows:
National Grasslands Fee Adjustments for Conservation
Practices to be Retained as Implemented by the Secretary.--A
reduction in grazing fees for national grasslands will be
allowed for conservation practices and administrative duties
performed by grazing associations.
______
By Mr. GORTON (for himself, Mr. Burns, Mr. Murkowski, Mr.
Stevens, Mr. Kempthorne, Mr. Craig, Mr. Baucus, Mr. Packwood,
and Mr. Hatfield):
S. 853. A bill to amend title 28, United States Code, to divide the
ninth judicial circuit of the United States into two circuits, and for
other purposes; to the Committee on the Judiciary.
the ninth circuit court of appeals reorganization act of 1995
Mr. GORTON. Mr. President, my purpose today is to introduce the Ninth
Circuit Court of Appeals Reorganization Act of 1995, which is similar
to measures I introduced in 1983, 1989, and 1991. This measure has the
cosponsorship of Senators Burns, Murkowski, Stevens, Kempthorne, Craig,
Baucus, Packwood, and Hatfield, who represent all the States forming
the new proposed circuit. This proposal will divide the ninth circuit,
the largest circuit in the country, into two separate circuits of more
manageable size and responsibility. This division would leave the ninth
circuit composed of Arizona, California, Hawaii, Nevada, Guam, and the
Northern Mariana Islands, and would create a new twelfth circuit
composed of Alaska, Idaho, Montana, Oregon, and Washington. Personally,
I believe that the ninth circuit should be divided into three new
circuits, but the composition for the two southern circuits should be
determined by the elected representatives of those States, to whose
judgment I will defer.
Today the ninth circuit is by far the largest of the thirteen
judicial circuits, measured both by number of judges and by caseload.
It has 28 active judges, 11 more than any other. Last year it had an
astounding 8,092 new filings, almost 2,000 more than the next busiest
circuit. It serves over 45 million people, almost 60 percent more than
are served by the next largest circuit. Moreover, the population in the
States and territories that comprise the ninth circuit is the fastest-
growing in the Nation.
Mr. President, the deplorable consequence of the massive size of this
circuit is a marked decrease in the consistency of justice provided by
ninth circuit courts. Judges are unable to keep abreast of legal
developments even within their own jurisdiction--to say nothing of lay
citizens' inability to keep abreast. The large number of judges
scattered over a large area inevitably results in difficulty in
reaching consistent circuit decisions. These judges have nearly
unmanageable caseloads with little time to review the voluminous case
law within the jurisdiction or to consult with their fellow circuit
colleagues. As a result, legal opinions tend to be very narrow with
little precedential value, merely exacerbating the problem. As a former
attorney general for the State of Washington, I personally have
experienced the unique frustrations and difficulties of practicing
before the ninth circuit.
Compounding the problem for the Northwest is that 55 percent of the
case filings in the ninth circuit are from California alone.
Consequently, the remaining States in the ninth circuit, including my
State of Washington and our Northwest neighbors, are dominated by
California judges and California judicial philosophy. That trend cannot
help but persist as the number of cases filed by California's litigious
and exploding population continues to rise. The Northwestern States
confront issues that are fundamentally unique to that region, issues
that are central to the lives of citizens in the Northwest, but which
are little more than one of many newspaper articles in California. In
sum, the interests of the Northwest cannot be fully appreciated or
addressed from a California perspective.
This initiative, Mr. President, is long overdue. As early as 1973,
the Congressional Commission on the Revision of the Federal Court
Appellate System recommended that the ninth circuit be divided. In
addition, the U.S. Judicial Conference found that increasing the number
of judges in any circuit court beyond 15 would create an unworkable
situation. The American Bar Association also adopted a resolution
expressing the desirability of dividing the ninth circuit to help
realign the U.S. appellate courts. Earlier bills on the ninth circuit
reorganization that I introduced during the 101st and 102d Congresses--
and which were virtually identical to this bill--earned the support of
practitioners and judges in the ninth circuit, attorneys general of the
western States, the Department of Justice, and the former Chief
Justice of the U.S. Supreme Court, Warren E. Burger.
The leadership of the ninth circuit has not donned blinders to the
difficulties inherent in a circuit court of this size and workload. It
has responded, however, by adopting a number of innovative but
ultimately ineffectual approaches to these problems. For example the
ninth circuit has divided itself into three administrative divisions:
the northern unit consists of the five Northwestern States that would
comprise the proposed twelfth circuit, and the combined middle and
southern units is identical to the restructured ninth circuit. This
method, however, does little more than recognize the problem without
solving it.
Another innovation of the ninth circuit is the limited en banc court,
for which a panel of 11 of the 28 judges will be chosen by lot to hear
an individual case. Such panels, however, further contribute to the
inherent unpredictability of a jurisdiction as large as the ninth
circuit. Lawyers often must tell their clients that they cannot begin
to predict the likely outcome of an appeal until the panel has been
identified. Mr. President, justice should not be determined by lot.
Moreover, I have serious reservations about any method which would
permit a small minority--as few as six of the sitting judges--to
dictate the outcome of a case contrary to the judgment of a large
majority, solely depending on the luck of the draw.
Despite these attempts to solve the problem, the performance of the
ninth circuit has gotten worse, not better. Its judges are falling
further and further behind. Despite only a moderate increase in new
filings for appeal, the number of pending cases swelled by almost 20
percent in the last year. The ninth circuit now is the slowest of 12
regional circuits in hearing and deciding appeals, on average taking a
full 16 months. Mr. President, justice delayed is justice denied.
The 45 million residents within the ninth circuit continue to pay the
high costs of an unpredictable body of case law and an overburdened
court system. They wait years before cases are heard and decided,
prompting many to forego their rights to judicial redress. Residents in
the Northwest, in particular, [[Page
S7505]] are concerned about the
growing inability of the ninth circuit to handle the boom in criminal
cases stemming from stepped-up enforcement of our drug laws.
The swift and sure administration of justice is a right that should
no longer be compromised in the ninth circuit. I urge my colleagues to
support this important legislation. Mr. President, I ask unanimous
consent that the complete text of my bill be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 853
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Ninth Circuit Court of
Appeals Reorganization Act of 1995''.
SEC. 2. NUMBER AND COMPOSITION OF CIRCUITS.
Section 41 of title 28, United States Code, is amended--
(1) in the matter before the table, by striking out
``thirteen'' and inserting in lieu thereof ``fourteen'';
(2) in the table, by striking out the item relating to the
ninth circuit and inserting in lieu thereof the following new
item:
Arizona, California, Hawaii, Nevada, Guam, Northern Mariana Islands.'';
and
(3) between the last 2 items of the table, by inserting the
following new item:
Alaska, Idaho, Montana, Oregon, Washington.''..........................
SEC. 3. NUMBER OF CIRCUIT JUDGES.
The table in section 44(a) of title 28, United States Code,
is amended--
(1) by striking out the item relating to the ninth circuit
and inserting in lieu thereof the following new item:
``Ninth..........................................
Major Actions:
All articles in Senate section
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
(Senate - May 25, 1995)
Text of this article available as:
TXT
PDF
[Pages
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STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. JOHNSTON (for himself, Mr. Faircloth, Mr. Breaux, Mr.
Pressler, Mr. Dorgan, Mr. Lott, Mr. Dole, Mr. Murkowski, and
Mr. Heflin)
S. 851. A bill to amend the Federal Water Pollution Control Act to
reform the wetlands regulatory program, and for other purposes; to the
Committee on Environment and Public Works.
the wetlands regulatory reform act of 1995
Mr. JOHNSTON. Mr. President, I am pleased today to introduce, along
with several of my colleagues, the Wetlands Regulatory Reform Act of
1995. I am particularly pleased to have as the lead cosponsor Senator
Faircloth, the chairman of the subcommittee of the Environment and
Public Works Committee that has jurisdiction over wetlands. Our bill
will reform the section 404 ``wetlands'' permitting program under the
Clean Water Act by introducing balance, common sense, and reason to a
Federal program that is causing unnecessary problems for my
constituents--and I believe for many of our citizens around the Nation.
In the closing days of the last Congress, I introduced a wetlands
bill,
S. 2506, so that my colleagues and other interested persons could
review the legislation and recommend improvements prior to
reintroduction in the 104th Congress. I appreciate the efforts of those
who took the time over the last few months to provide suggestions, many
of which are reflected in the current bill.
Mr. President, the current section 404 regulatory program has been
designed less by the elected representatives of the people than by
officials of the Corps of Engineers and the Environmental Protection
Agency and by Federal judges. In 1972, the Congress enacted the Federal
Water Pollution Control Act. Section 404 of that Act prohibited
``discharges of dredged or fill material'' into ``waters of the United
States;'' without a permit from the Secretary of the Army. At the time
of passage, ``waters of the United States'' was thought to be limited
to the navigable waters of the Nation.
From this narrow beginning has come a rigid regulatory program that
is devaluing property and preventing the construction of housing, the
extension of airport runways, the construction of roads--often on lands
that rarely, if ever, have water on the surface but which,
nevertheless, are viewed as ``wetlands'' within the definition of
``waters of the United States''. And I might add, Mr. President, that
75 percent of the land that is being regulated through the Section 404
program as ``wetlands'' or ``waters of the United States'' is
privately-owned property.
I do not believe that we, in Congress, intended for the Section 404
program to become a rigid, broad Federal land use program that affects
primarily privately-owned property. Yet, the evidence is clear to me
that the Section 404 program has become just that. Therefore, Mr.
President, I believe that the time has come for the Congress to reform
this program to focus Federal regulatory authority on those wetlands
that are truly important functioning wetlands, to ensure that our
citizens can obtain permits through a reasonable process within a
reasonable period of time, and to ensure that this program is not
denying people the use of their property unless there is an overriding
reason to do so.
Mr. President, the Wetlands Regulatory Reform Act of 1995 proposes
several key changes to the current 404 program:
First, the bill provides a statutory definition of a jurisdictional
wetland. This is, of course, the crucial threshold question: what
wetlands are subject to Federal regulation? And yet, one can read the
entire Clean Water Act without finding the answer to this question.
Instead, the answer currently lies only in a manual prepared by the
Corps of Engineers in 1987. I think it is high
time that Congress make an explicit judgment on this matter and set
forth a definition in the statute itself.
The definition in our bill is essentially this: there must be water
on or above the surface of the ground for at least 21 consecutive days
during the growing season. This is virtually the same as the definition
in
H.R. 961, which passed the House last week.
During the debate in the House, it was claimed by opponent of the
bill that this definition excludes a huge portion of the wetlands that
are currently regulated. However, the claims varied widely, and did not
appear to be based on solid evidence. Although I think that these
claims are exaggerated I want to make sure that our definition does not
exclude wetlands that are truly important. Therefore, I intend to write
to the Clinton administration to ask them to provide the best evidence
available regarding the effect of our definition on the amount and
nature of wetland regulated, both nationwide and in Louisiana.
Second, this legislation will require that Federal jurisdictional
wetlands be classified into three categories: high, medium, and low
valued wetlands, based on the relative wetlands functions present.
Today, the Section 404 program regulates all wetlands equally rigidly,
whether the wetland is a pristine, high-value wetland, a wet spot in a
field, or a ``wetland'' in the middle of an industrial area. This
treatment of wetlands defies logic and common sense.
My legislation will require the Corps of Engineers to classify
wetlands based on their functions, and then regulate them accordingly.
Class A, high-value, wetlands will be regulated under the current
``sequencing'' methodology, which first seeks to avoid adverse effects
on wetlands, then attempts to minimize those adverse effects that
cannot be avoided, and finally calls for mitigation of any adverse
effects that cannot be avoided or minimized. Class B, medium-value,
wetlands will be regulated under a balancing test, which does not
require the avoidance step. Finally, Class C, low-value, wetlands will
not be regulated by the Federal Government, but may be regulated by the
State if they so choose.
Third, this legislation removes the dual agency implementation of
this program, an aspect of the program that is particularly confusing
and troublesome to our constituents. Today, the Army Corps of Engineers
issues Section 404 permits, but the Environmental Protection Agency may
veto the decision of the Corps to issue the permit. Although EPA
actually exercises its veto power infrequently, I understand that veto
is threatened often, causing undue delays and repeated multi-agency
consultations. My legislation removes the EPA veto, and instead simply
requires the Corps to consult with EPA before acting.
Similarly, current law allows the EPA to veto permit decisions made
by State that have assumed responsibility for the section 404 program.
Our bill makes two changes to this regime. First, the Corps, instead of
the EPA, becomes responsible for overseeing States that have assumed
responsibility for the program. This is done in order to consolidate
responsibility in a single Federal agency. Second, the bill deletes the
veto authority as an unnecessary interference with State administration
of the program. If the Corps determines that the State is
not implementing the program appropriately, the Corps has the
authority, which my bill does not change, to withdraw approval of the
State program and return the program to Federal hands. But as long as
the State is in charge, its individual permit decisions should not be
subject to veto from Washington.
Fourth, mitigation banking is authorized and encouraged by the bill
as a sound means to return wetlands functions to the environment. There
are a number of mitigation banking projects now around the Nation. The
experience with these projects is proving that mitigation banking holds
great promise as a means of restoring, enhancing, reclaiming, and even
creating wetlands to offset the wetlands disturbances that are
permitted under the section 404 program. Mitigation banking is the type
of market driven mechanism that I believe we must incorporate in our
national environmental laws if we are to achieve our national
environmental goals.
Finally, this legislation will require that steps be taken to provide
notice to our citizens regarding the location of Federal jurisdictional
wetlands. Remarkably, Mr. President, the Federal Government is
regulating over 100 million acres of land, over 75 million acres of
which is privately owned, yet there are no maps posted to inform
citizens about the location of these lands. Perhaps this would not be a
problem if [[Page
S7499]] Federal jurisdictional wetlands were only
swamps, marshes, bogs, and other such areas that are wet at the surface
for a significant portion of the year, and therefore relatively easy
for our citizens to identify. But land that is dry at the surface all
year long can also be a Federal jurisdictional wetland.
Without maps and other notices, only the most highly trained
technicians among our citizens can identify the subtle differences
between lands that are not subject to the section 404 program and those
that are. Thus, many people have bought land for home sites, only to
find out later that they have bought a Federal jurisdictional wetland
and cannot obtain a permit to build their house. We owe our citizens
better than that.
My legislation will require the Corps of Engineers to immediately
post notices about the section 404 program near the property records in
the courthouses around the Nation, and to post maps of Federal
jurisdictional wetlands as those maps become available, including the
National Wetlands Inventory maps that are being developed by the
National Biological Survey.
Mr. President, there are many other improvements of the current
program in my legislation, including time limits on the issuance of
section 404 permits, an administrative appeal process, and the
designation of the Secretary of Agriculture to delineate wetlands on
agricultural lands.
As I mentioned, our bill has virtually the same definition of wetland
as the House-passed clean water bill,
H.R. 961. Although there are
several other comparable provisions in the two bills, our legislation
varies from the House-passed bill in at least one important respect.
Our legislation does not provide a mechanism for obtaining compensation
from the Federal Government when private property is taken through the
operation of the 404 program. I believe that the impact of the section
404 program on private property rights is a very important issue.
However, I also believe that compensation is an extraordinarily
complex and controversial issue that overarches all environmental
regulations, not just those relating to wetlands. Thus, rather than
attempting to resolve the compensation issue in this bill, we have
chosen to include provisions in the legislation that will help ensure
that the Section 404 Program does not result in takings of private
property in the first place. Therefore, in addition to the many
provisions of the bill that will make the wetlands program more
balanced and rational, it also directs Federal officials to implement
the program in a manner that minimizes the adverse effects on the use
and value of privately-owned property.
I would be remiss if I did not comment on the recently-issued study
of wetlands by the National Academy of Sciences. The report reaches
several conclusions that are reflected in this legislation.
Specifically, it recommends the consolidation of all wetlands
regulatory functions into a single Federal agency, a change that is
central to our legislation. It also recommends that regional variations
in wetlands be taken into account, which our bill does.
Some have suggested that the NAS study recommends against a
classification scheme such as is included in our bill, but I do not
read it that way. The report states that:
Some groups have suggested the creation of a national
scheme that would designate wetlands of high, medium, or low
value based on some general guidelines involving size,
location, or some other factor that does not require field
evaluation. It is not possible, however, to relate such
categories in a reliable way to objective measures of
wetlands functions, in part because the relationships between
categories and functions are variable and in part because we
still have insufficient knowledge of wetlands functions.
(Emphasis added.)
I read the report to warn against nationwide classification schemes
that do not take into account site-specific considerations, a point on
which I heartily agree. That is why our classification process is
initiated only in connection with the consideration of a permit
application or upon a request for classification of a specific piece of
property. The particular piece of property is classified after
considering site-specific factors, such as the significance of the
wetland ``to the long-term conservation of the aquatic system of which
the wetland is a part,'' and the ``scarcity of functioning wetlands
within the watershed or aquatic system.'' Thus, I do not see an
inconsistency between the NAS report and our bill with respect to
classification.
Even if the NAS study could be interpreted as expressing concern
about any classification scheme for wetlands, I would suggest that
those concerns should not be dispositive. Scientists and lawmakers
necessarily approach matters differently. Scientists are in the
business of achieving a more perfect state of knowledge, while
lawmakers are in the business of drawing regulatory lines and
allocating societal resources based on the information available. While
a scientist might prefer to wait for more information before
distinguishing among wetlands, Congress cannot wait because the present
regulatory scheme, which makes no distinctions among wetlands, is so
clearly ineffective at balancing wetlands protection against other
policy considerations.
Mr. President, reforming the wetlands regulatory program will be one
of my highest priorities in this Congress. I look forward to working
with my colleagues and others in an effort to make the program work
both for the environment and for our constituents.
Mr. BREAUX. Mr. President, I join with my colleague from Louisiana,
Senator J. Bennett Johnston, in introducing legislation today which
makes major reforms in Sec. 404 of the Federal Water Pollution Control
Act, also known a the Clean Water Act.
We all know Sec. 404 to be the wetlands regulatory program which has
caused so much controversy and so many problems. I have heard countless
complaints that the program has been implemented in an excessive and
restrictive manner for years, imposing unfair hardship on landowners,
businesses and local governments.
It is long overdue that the Sec. 404 program be reformed. It is long
overdue that the program be balanced, reasonable and fair. This bill
attempts to achieve those objectives.
One of the major features of the bill is its wetlands classification
system. I wholeheartedly endorse classifying and regulating wetlands by
the their value and function.
All wetlands are not equal in value and function, yet for years they
have been regulated that way. That way is wrong and we intend to change
it.
We do not have a wetlands classification system in current law. To be
fair and to strike balance and reason in wetlands regulation we must
identify and regulate according to the very real differences in
wetlands value and function.
For the first time, wetlands would be divided into three classes of
critical significance, Class A, significant, Class B, and marginal
value, Class C. Each class is defined to distinguish the different
values and functions found in wetlands.
Classes A and B wetlands would be regulated because they provide the
most valuable functions. A public interest test would have to be met
when regulating these two classes. Class C wetlands would not be
regulated because they are of marginal value.
Other major provisions of the bill include a definition of
jurisdictional wetlands, expansion of wetlands regulatory exemptions
and an expansion of regulated activities. Single agency program
jurisdiction and administration by the Corps of Engineers is
established.
Also included in the bill are exclusion of prior converted cropland
from Sec. 404 regulation, USDA delineation of wetlands on agricultural
land, and authorization of State permitting programs, and
administrative appeals program and a mitigation banking program. Public
information is required to be published about wetlands and their
regulation at the Federal and local levels.
The bill's policies attempt to strike a very simple and sound premise
in regulatory policy, that is, balance, reason and, most importantly,
fairness shall prevail.
These policies attempt to balance respect for the environment with
respect for property owners, in whose possession lies an estimated 75
percent of our wetlands in the lower 48 states.
In all that we do with regard to wetlands policy, we must always be
mindful and respectful of the fact that most [[Page
S7500]] of our
wetlands in the lower 48 States are privately owned.
Thank you, Mr. President, for this time to announce my support for
and sponsorship of the Wetlands Regulatory Reform Act of 1995.
I hope the Senate can begin hearings on the legislation and hear
solid testimony so that a final bill can be crafted.
Mr. PRESSLER. Mr. President, today I join Senator Faircloth and
Senator Johnston and others, in introducing legislation that addresses
a major concern of landowners, farmers, businesses, and average
citizens throughout the United States. The concern is wetlands.
Just last week, during consideration of the Clean Water Act, the
House of Representatives passed major revisions to our Federal wetlands
laws. It is now the Senate's turn to address this major issue. As
Chairman of the Senate Subcommittee on Wetlands, Senator Faircloth will
direct Senate efforts to bring much needed common sense to our Federal
wetlands laws. Very few Federal issues are more critical to South
Dakota property owners. Therefore, I look forward to working with
Senator Faircloth in making sure reforms are adopted during this
Congress.
Mr. President, current wetlands law is too broad. It is causing too
many problems throughout the country. Congress has never passed a
comprehensive law defining wetlands. Without such a definition, Federal
agencies have been recklessly pursuing control over private property in
the name of saving wetlands. The time to act has come.
Earlier this year, I introduced
S. 352, The Comprehensive Wetlands
Conservation and Management Act of 1995. A number of the provisions in
my legislation already have been adopted by the House, as part of its
reforms on wetlands. Also, I am pleased that most of
S. 352 is
incorporated in the bipartisan bill we are introducing today.
By introducing a bipartisan bill, one message is made clear:
Meaningful wetlands reform must be adopted this year.
One issue I reserve the right to address during future Senate debate
on wetlands reform is adequate compensation for private property
owners. Whenever the Federal Government takes land away from private
property owners, or significantly reduces the use of private property,
compensation is in order. There is no compensation provision in the
bill being introduced today. However, I intend to raise this issue
during floor debate on this subject. Compensation to private property
owners should be included in meaningful wetlands reform.
The primary purpose of today's legislation is to clearly define
wetlands in law and regulation. What the Federal Government should, or
should not be doing in this area needs to be clearly defined.
In addition, efforts must be made to ensure that any fine or penalty
is in line with violations. Many violations are incidental and can be
quickly repaired. Penalties should fit the crime. The bill we are
introducing today would set that kind of standard.
The bill would require certain criteria to be met and verified before
an area can be regulated as a wetland. Such an approach would be more
reliable in identifying true wetlands. It would prevent field
inspectors from mistakenly classifying as wetland dry, upland areas
that drain effectively. It also would eliminate a major source of
confusion and abuse caused by current regulations.
This bill also would give States and local governments the authority
to tailor the wetlands regulatory program to their own special
circumstances. This is greatly needed.
The bill also would clarify current agricultural exemptions and
provide that the Secretary of Agriculture shall identify agricultural
lands that are wetlands.
Mr. President, the time has come for the Senate to adopt wetlands
reform. Only through the kind of commonsense and balanced approach
proposed in this bill can the Nation's agricultural, business,
environmental, and individual interests be properly addressed.
Mr. President, thousands of South Dakotans have written, called, or
visited with me about the lack of definition of wetlands and the
haphazard rules and regulatory overkill taken by the Federal
Government. They rightly are concerned about the impact of the current
system on their ability to run their farms and businesses. South
Dakotans are law-abiding citizens who stand for fairness and balance in
the enforcement of the law. South Dakotans are conscientious stewards
of the land they have cared for and cultivated for generations. They
believe the time has come for a fair, balanced approach that protests
the environment as well as private property. I believe the bill we are
introducing today responds to this call for fairness from South Dakota
and across America.
Action on this issue is essential. I urge my colleagues to take a
close look at this bill and join in supporting it.
______
By Mr. DOMENICI (for himself, Mr. Craig, Mr. Brown, Mr. Campbell,
Mr. Hatch, Mr. Bennett, Mr. Burns, Mr. Simpson, Mr. Thomas, Mr.
Kyl, Mr. Pressler, Mr. Kempthorne, Mr. Conrad, Mr. Dorgan, Mr.
Dole, and Mr. Gramm):
S. 852. A bill to provide for uniform management of livestock grazing
on Federal land, and for other purposes; to the Committee on Energy and
Natural Resources.
the livestock grazing act of 1995
Mr. DOMENICI. Mr. President, over the past several years, a series of
legislative and administrative actions have haunted the Federal lands
ranchers. A cloud has been hanging over their livelihoods. Today, with
the introduction of the Livestock Grazing Act of 1995 [LGA], we intend
to roll back that cloud.
In the wings, however, there awaits an onerous proposal that will
jeopardize the very fabric of the Federal lands rancher's livelihood.
On August 21, 1995, Secretary Babbitt's Rangeland Reform '94 proposal
becomes final. Earlier this year, the Secretary agreed to provide a 6-
month window of opportunity for Congress to deliberate over the
concerns raised during the 2-year debate on the proposed rule. LGA is
the product of that temporary stay; it is a product that will provide
stability for ranchers across the West.
Many issues have been addressed in our bill. For example, issues such
as public input into the management of our Federal lands; standards and
guidelines that will reflect the diversity of the western rangelands;
and incentive for permitees to contribute private dollars to betterment
of our Federal lands; a fair method in gaining ownership and control of
water rights; a subleasing provision that will help the elderly and
family ranchers; and, a grazing fee formula that will generate more
revenue for the American taxpayers.
There are many more aspects of this legislation, nevertheless, I am
going to focus on the new grazing fee and the formula that will
generate an increase in revenue to the Treasury.
Although the grazing fee does not affect the condition of our
rangelands, I did make a commitment to increase the grazing fee during
the October debate on Rangeland Reform '94. Today, through this
legislation that pledge has been honored. LGA includes a grazing
formula that will provide for a fair return for the utilization of our
Federal lands.
In the past, the Federal lands grazing fee was based on a formula
that was too complex and subject to many interpretations. A simpler and
more understandable fee formula will help ensure a greater amount of
stability to the Federal lands ranchers.
The LGA fee establishes a fee formula that is based on the gross
value of production for cattle. Although this formula is based solely
on the value of production for cattle, an adjustment has been made to
take into consideration the differential in the production value
between a cow and animals that are not as large. This adjustment will
not increase the numbers of sheep and goats on the Federal lands, but
will merely take into account the considerable differences between the
cattle prices and the other two commodities.
This Gross Return Fee formula is based on the premise that the
western Federal lands rancher should pay a fair percentage of gross
production value that is gained by use of the Federal lands. Two key
features of this formula are that the fee approximates the value of the
forage from the gain in production value, and that it provides a fair
return to the Federal Government for that forage. [[Page
S7501]]
Mr. President, this formula is simple. As I explained earlier, the
current fee is convoluted. Establishing the grazing fee as a percentage
of return will assure that livestock ranchers are assessed on the same
basis of many other public lands users.se
As you may know, forage has no readily identifiable market value
until it is converted into beef, wool, mutton, or some other salable
animal product. Federal lands ranchers will--and have--willingly pay
for the opportunity to utilize this forage on Federal lands to attain a
gross value of livestock grazing on those lands. The Gross Return Fee
recognizes the value of the end product by establishing the grazing fee
as a percentage of this value.
The Gross Return Fee is critical to the continued viability of the
western livestock industry. Ranchers are the family farmers of the
West. The establishment of a fair and equitable grazing fee formula is
critical to their survival.
Additionally, the rancher is key to the rural western economy. Every
dollar a rancher spends yields an estimated $5 in economic activity
throughout the West. This economic activity is critical to social
fabric west, old or new.
In closing, Mr. President, the fee is only one component of this
legislation. The other aspects of this bill will be addressed by the
cosponsors of this legislation. Furthermore, a companion measure is
currently ready for introduction in the House of Representatives. This
will allow the Livestock Grazing Act of 1995 to be examined in full by
both bodies of Congress. I look forward to moving this legislation
through both Houses of Congress and removing the cloud that has been
hanging over the Federal lands rancher.
Mr. CRAIG. Mr. President, I along with 14 of my colleagues am
introducing the Livestock Grazing Act. This bill is intended to
establish the policy guidelines for grazing of livestock on Federal
lands in the Western States.
This bill is needed to resolve the ongoing debate over rangeland
reform and the establishment of fees. I strongly believe the Congress
must address this issue and resolve the ongoing debate over western
rangeland management. We must assure that the extensive Federal lands
in the West have a grazing policy that allows the families who depend
on these lands to continue to use these lands to make their
livelihoods.
We have crafted a bill that addresses the numerous issues that have
arisen on grazing on the public lands. This bill is a product of
extensive discussions with members of the grazing and academic
community. It addresses both rangeland reform and the fee issue.
It is my intention to hold hearings in the Senate Energy and Natural
Resources Subcommittee that I chair in the early summer and then to
promptly move a bill. I am pleased that the other body has a similar
schedule.
It is my intention to resolve this long-standing issue in a way that
strengthens the economic base of the rural ranching West. I will work
with my colleagues to assure that such a bill is passed into law.
Mr. BURNS. Mr. President, I rise today to support the introduction of
the livestock grazing bill offered by Senator Domenici, myself, and
others. This is a bill that will allow us to set the stage for the
future grazing and land use access of the livestock industry. This is
extremely important in the West, and in particular my State of Montana.
This is a bill that will provide security and stability to the
livestock producers--those people who live, and work 365 days a year,
on or near the public lands.
For years there has been debate on the purpose and scope of the
intent of the language that a grazing bill would offer. Many people
have attempted to make this a single issue bill. This attempt may be
the case, to those who, do nothing more than depend upon the farmer and
rancher for the food and fiber they enjoy in their daily lives. But to
the rancher, or anybody or any group this is the first step to creating
some sense of stability for them on public lands. For the rancher, this
is the first step they have seen, that will provide them with the
security they need to operate their grazing permits with the sense of
purpose and a future. The purpose of this bill is to provide a future
for those hard-working men and women that provide the best and least
expensive food supply to this Nation and the world.
Too many times the ability of these people to use the public lands
has been threatened by forces who neither care about the vitality and
well-being of the communities. People who have no idea of what the
issue is. This is an issue of allowing producers and permit holders to
use the land. For it is in this use that the land is made healthy, that
our country thrives, and the public is provided an opportunity to put
back something into the land.
In the recent past in my State of Montana this land use has been
threatened by special interests. Interest groups with no understanding
of what grazing and the livestock industry are all about. In a little
known area, called the Bitterroot Forest, history was made by the stand
that the permit holders made in defending their rights to use and graze
public lands. However, this action cost the Federal Government
thousands of dollars and strained the relations between the land use
groups and the Government. All this action was brought on, due to the
requirements of the land managers to complete certain environmental
requirements. Requirements set forth under the provisions in the
National Environmental Policy Act of 1969.
This case was developed as a result of the failure of the Federal
Government of complete NEPA compliance on permit holders allotments. As
a result, it threatened the ability of this particular group of
ranchers to work, to graze cattle, and provide for their families. The
permit holders, in this example and many more like it, were held
hostage to the whims and of the special interest groups and the Federal
courts. Held hostage by the very laws that were designed to protect
them and their way of living. I find it ironic that those permit
holders suffered financial loss and mental anguish. They were the only
ones who did. All other interests including the Forest Service
personnel who were charged to do the required work, did not lose a pay
check.
Under the language in this bill we have provided for the security of
the permit holders, and the health and future of the land. In this bill
we continue to use the land management plans as a way to protect the
land, and at the same time give the permit holders an opportunity to
have access to the land for their use.
Mr. President, this bill is the first step to developing working
arrangements between the Government and the people on the land. It is
an opportunity to have all parties working together to set the
standards for what is best for the land and the people of this country.
Mr. SIMPSON. Mr. President, I rise to express my support for the
Livestock Grazing Act introduced by my colleague and good friend,
Senator Domenici. He and his staff--especially Marron Lee--have done an
outstanding job leading the charge for responsible grazing fee reform.
I commend them for working so doggedly to produce the best bill
possible.
Mr. President, I say ``best bill possible'' because there cannot be a
perfect bill. With the number of diverse interests represented
throughout our great American West, no legislation in this area will
satisfy everyone. But truly, the widespread support for this bill has
been impressive.
Of course, I have heard some rumblings of discontent from those
wishing to modify specific portions of this legislation. I ask those
individuals to work with us, to let us know your thoughts as this bill
moves through the committee process. We will do our best to attend to
your concerns. There are, however, certain things we must all bear in
mind. First, this bill is by far better than the alternative of having
no bill, and second, we must not turn this bill into a ``Christmas wish
list.'' Doing so could spell defeat for this legislation and, in turn,
subject our western livestock industry to an uncertain future.
I am most pleased by a number of provisions contained in this
legislation that will benefit the Wyoming ranching industry. I would
like to quickly address a few of these.
First, the bill will allow ranchers to own, in proportion to their
investment in the overall cost, title to improvements located on
Federal lands. This is far more fair than the administration's
regulations requiring ranchers to pay for the improvement, while
cedingownership with the Government. Mr.
[[Page
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President, that alternative is wrongly conceived. It amounts simply to
a form of tax on our ranchers, taking their scarce assets and
transferring them to the Federal Government.
We also address the critical issue of water rights. The Western
States are not blessed with the almost unlimited supply of water that
our Eastern neighbors enjoy. Western water law was created to manage
this precious resource. Much of this law predates the birth of many of
our Western States and works very well without the help of the Federal
Government, thank you. This legislation directs Federal agencies to
respect established State water law.
This legislation, unlike the administration's regulations, will leave
certain aspects of rangeland management in the hands of those who have
been responsible stewards of the public lands for over 100 years--the
permittees, lessees, and landowners. Additionally, the new resource and
grazing advisory council structure will allow other interests
representing recreation and the environment to be adequately
represented in the management process.
Finally, this legislation addresses the ever-contentious fee issue.
Recall that not too long ago, many in this distinguished body were
concerned that the ranching community was not paying a fair price for
the opportunity to graze livestock on the public lands. This
legislation will fairly increase that fee but keep it short of levels
that would quickly bankrupt many hard-working families.
Mr. President, our American ranching industry has been a unique way
of life for well over 100 years. Through the enactment of responsible
legislation we can ensure that this industry, while still facing a
number of significant challenges, will at least have a chance to remain
viable well into the next century.
Mr. DASCHLE. Mr. President, Americans rely on Federal lands for a
wide variety of purposes. Among them is rangeland for livestock
grazing. As we look to the future use of these lands, it is incumbent
upon us to implement commonsense policies that allow ranchers to graze
livestock on these public rangelands while managing them in a manner
that is consistent with long-term, sustainable use.
During the last 2 years, debate has raged over the appropriate
regulation of Federal grazing lands. Environmentalists and those
ranchers who graze on private land have argued for a more realistic fee
system, one that links the grazing fee to the private land lease rate.
Some have advocated stronger stewardship requirements. Meanwhile, as
grazing policy remains unresolved, we have seen cattle prices drop and
too many ranchers teetering on the edge of financial viability.
There needs to be some fair and reasonable ground upon which
agreement can be reached that ensures public confidence in the
management and use of the Federal lands, while allowing ranchers the
certainty that, by working hard and playing by the rules, the Federal
lands will provide an opportunity to earn a decent living. In short,
the time has come to conclude this long debate and establish realistic
grazing standards once and for all.
Secretary Babbit's Rangeland Reform proposals have called attention
to this important issue and, at the same time, generated considerable
controversy. While an open discussion of grazing reform is needed, a
rising tide of misunderstanding and distrust has hampered the
development of a broadly supportable solution.
Today, Senator Domenici is introducing the Livestock Grazing Act,
which is intended to provide much needed closure to this debate as well
as certainty for the many ranchers who rely on the Federal lands for
grazing. I commend Senator Domenici for investing the hard work and
energy in meeting with the ranching community and fashioning a bill
that enjoys their support. His bill represents an essential step in
moving grazing reform to closure.
I support much of the Domenici bill. It provides a valuable framework
for addressing the critical issues of the fee, range management, and
oversight, and, ultimately, I expect it to provide the foundation for
the development of a balanced and reasonable approach to stewardship
that addresses legitimate concerns of all interested groups.
For example, I call attention to the provision in the bill that
establishes separate management of the national grasslands under the
Department of Agriculture. This initiative will help ensure that
management of those lands is as sensitive as possible to the unique
needs of ranchers.
Currently, grasslands are subjected to rules and procedures that make
sense for large expanses of national forests but not necessarily for
grazing. In South Dakota, most ranchers who graze cattle on Federal
lands do so on Forest Service lands. Ranchers in my home State feel a
separate management unit for grasslands will allow them to ranch
better. This legislation will accomplish that important objective.
Congress' challenge is to strike a balance between the recognition of
regional environmental differences and the need to ensure a basic level
of environmental protection. It is to reform the grazing fee, without
putting an untenable financial squeeze on hard-working ranchers. And it
is to strike a balance between the desire to provide an opportunity for
input into range management decisions from the general public and the
recognition that these decision have special ramifications for the
economic security of those using the land.
We have not yet achieved that balance. But I am optimistic that we
can, and I will devote my energies to working with Senator Domenici and
others toward that goal.
This is one of the reasons I have invited Secretary of Agriculture
Dan Glickman to visit with South Dakota ranchers next week in Rapid
City. I want Secretary Glickman to hear first hand how those whose
livelihoods are affected by Federal land management policies feel about
the grazing issue. Their experience must be part of the solution sought
in this debate.
Senator Domenici has expressed a desire to move grazing reform
legislation with bipartisan support. While some initial concern has
been raised that the Livestock Grazing Act, as currently drafted, may
not yet achieve the balance needed to ensure consideration of all
legitimate interests in the management of the range, he has given
Congress a solid place to start. I hope that, in the weeks to come, any
contentious issues can be worked out to the mutual satisfaction of all
interested parties, and that we can move to enact legislation with
broad-based support.
My goal is to pass Federal grazing reform. I am confident this
Congress can achieve that goal.
Mr. THOMAS. Mr. President, I rise today in strong support of the
legislation introduced by Senator Domenici, the Livestock Grazing Act.
This bill is a reasonable proposal that will allow livestock producers
in the West to continue to operate on public lands and will protect the
public range for multiple-use purposes.
Today, western livestock producers are encountering many challenges.
In addition to struggling because of low market prices for many
products and fighting losses from predators, livestock producers in the
West are now faced with regulations proposed by Interior Secretary
Bruce Babbitt that will put them out of business. Secretary Babbitt's
so-called ``Rangeland Reform '94'' proposal to reform public land
grazing practices is nothing but a thinly veiled attempt to end
livestock grazing on these areas.
The people of Wyoming and the West rely on having access to public
lands for their livelihood. Over the last 100 years, this process has
worked well. Westerners were able to use these lands for multiple uses
such as grazing, oil and gas exploration, and recreation and in turn
provided the rest of the Nation with high quality food products and
other commodities. Unfortunately, the Department of the Interior has
now taken a number of actions that will destroy the concept of multiple
use of public lands and will cost jobs and harm local economies across
Wyoming and the West.
The Livestock Grazing Act is designed to reverse this disturbing
trend. This legislation will provide western livestock producers with a
lifeline to survive the Clinton administration's efforts to destroy
their way of life. The measure is a reasonable attempt to solve the
long-standing dispute over grazing fees on public lands and many other
issues which have caused great discontent in Congress and across the
country. [[Page
S7503]]
Let me focus on a few provisions in the bill which are particularly
important to the people of my State. First, the legislation establishes
a grazing fee formula that will be tied to market values. This is a
fair and equitable approach to resolving the fee formula dispute and
will end the unfair comparison between private and public fee rates on
Federal lands.
Second, the legislation will provide permittees with the assurance
that they will be allowed to graze a certain number of livestock on
their allotment. For over 50 years, BLM grazing permittees have known
they had a priority position for a specific number of Federal animal
unit months [AUM's] on their allotments. These so-called preference
levels are attached to the private lands of the lessee and influence
the value of the privately owned base property. Preference levels are
particularly important to folks in my State where there is a large
amount of checkerboard land, which is commingled Federal and private
property.
Unfortunately, Secretary Babbitt's ``Rangeland Reform '94'' proposal
attempts to radically revised the concept of grazing preference by
giving Federal agents the authority to determine the appropriate number
of AUM's attached to a lease. The Secretary wants to set AUM's for
permittees on an arbitrary basis at the whim of the local Federal
officials. This would cause instability throughout western livestock
communities and threaten the economic value of western family ranches.
The Livestock Grazing Act would stop the Secretary's misguided efforts
by codifying the concept of grazing preference and giving western
ranchers the surety they need to continue operating on Federal lands.
Mr. President, these are just two examples of the important actions
taken by Senator Domenici in this bill that support western livestock
producers. The time has come for Congress to assert itself regarding
the issue of grazing on public lands in the West and stop Secretary
Babbitt's unending assault on western communities and our western way
of life. Although the Clinton administration and Secretary Babbitt
would like folks to believe ranchers in the West are simply welfare
cowboys, nothing could be further from the truth. These people are not
taking advantage of the Government, but simply trying to make a
reasonable living and raise their families.
I strongly support the Livestock Grazing Act and hope that we can
take quick action on this measure in order to allow western livestock
producers to continue their important work.
Mr. DORGAN. Mr. President, the sponsor of this bill, the Senator from
New Mexico, has made a sincere attempt to draft a good management plan
for our western public lands, and I have agreed to cosponsor it.
Although I want to see changes in several areas of this bill, overall
it is a good plan for responsible management of our huge public trust
in the West, imposing reasonable rules for the grazing of livestock and
rangeland improvement while safeguarding the natural environment.
Senator Domenici has indicated his intent to work with Senators of
both parties toward a consensus on this legislation. I appreciate his
flexibility, but I particularly appreciate the Senator's addition to
his bill of title II, provisions I and others from the Northern Plains
have submitted dealing specifically with the national grasslands.
In fact, the Grasslands provisions are the primary reason that I am
cosponsoring this bill.
Let me explain. Except for the grasslands provisions, this bill deals
exclusively with lands supervised by the Department of the Interior. In
North Dakota, however, land managed by Interior amounts to about two
townships out of a State of 46 million acres. On the other land, North
Dakota is host to 1.2 million acres of the national grasslands, which
are managed by the U.S. Forest Service of USDA.
The main purpose of the grasslands provisions is to give the
Secretary of Agriculture more flexibility in shaping the administration
of the Grasslands.
I have worked with the ranchers in North Dakota and with the Forest
Service in recent years, searching for ways the Secretary of
Agriculture and the Forest Service could reorder the bureaucratic
framework under which the Grasslands are managed. The Forest Service
has been cooperative in that search, but I finally had to conclude that
the Forest Service and USDA are legally prevented from the kind of
change I believe is needed.
In the 1970's the grasslands were joined by statute to the entire
National Forest System, managed by the Forest Service. That means the
grasslands are enmeshed in the mounds and reams of paper that prescribe
the layers of procedure, planning, management, and so forth, for the
national forests.
Let me note here that land ownership in the grasslands areas of my
state is much different than what you find among most of the great
expanses of Federal lands in the West.
Most of the grasslands were owned earlier in this century by private
farmers and ranchers, but were abandoned or lost to debt, and taken
over by the Federal Government. Today this is not a region of big
ranches. It is an area of small, and mid-sized ranchers where land
ownership is extensively interspersed among individual families, the
Forest Service, the State of North Dakota, and the Bureau of Land
Management.
The proper approach in management of such rangeland, it seems to me,
must be a cooperative venture between the ranchers and the Forest
Service, drawing upon the best expertise of range scientists, wildlife
specialists, and others who can help maintain and improve conditions in
the grasslands.
The main focus of such a cooperative venture must be how to best
manage and nurture the grasslands so they remain healthy and productive
for the benefit of future generations of people and wildlife.
Somehow, that focus is lost in the reams of Forest System rules and
regulations and planning documents that are supposed to address the
grasslands. In reading those documents you would hardly know that there
are cows on the grasslands when, in fact, ranching is the main human
activity there by a long shot.
So, the grasslands provisions of this bill give the Secretary
important latitude in changing the administrative structure under which
the grasslands are managed. The provisions essentially restate the
intent of the 1937 Federal act that set aside the grasslands: A call
for conscientious range management that would build and preserve a
healthy grassland resource.
And, where soil conservation and general range health are considered,
title II also tries to return grasslands management to a more
cooperative venture between the Forest Service and our State-chartered
grazing associations.
The grasslands provisions do not dictate a specific administrative
structure the Secretary must adopt for the grasslands. So, to a large
extent, those provisions of the bill speak mostly to what can happen
for the grasslands under a new design of Forest Service management, and
do not say specifically what must happen.
The grasslands provisions will, I believe, help harvest the expertise
and enthusiasm of grasslands area residents, including ranchers, for
better local input into managing this critical natural area in my
State.
The provisions are certainly not a step back from responsible
management and protection of the natural resources. All Federal
environmental laws, including the National Environmental Protection
Act, Endangered Species Act, Clean Water Act, still apply. If anything,
the grasslands provisions will encourage better attention to the spirit
of our environmental laws because more people who live in the
grasslands region, particularly those with expertise in areas of
conservation and grassland agriculture, will be participating in how
the lands are managed.
This is the kind of approach to public lands management that the
people of North Dakota want. I should note that the 1995 North Dakota
Legislature unanimously recommended the change we have proposed in the
grasslands law.
Finally, I ask unanimous consent to print the proposed grassland
provisions here in the Record as a means of distributing them for
comment and discussion.
There being no objection, the material was ordered to be printed in
the Record; as follows:
[[Page
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TITLE II--GRASSLANDS
SEC. 201 REMOVAL OF GRASSLANDS FROM NATIONAL FOREST SYSTEM
(a) Findings.--Congress finds that the inclusion of the
national grasslands (and land utilization projects
administered under Title III of the Bankhead Jones Farm
Tenant Act) within the Forest System contrains the Secretary
in managing the national grasslands as intended under the
Bankhead-Jones Farm Tenant Act.
(b) Amendment of the Forest and Rangeland Renewable
Resources Planning Act of 1974.--Section 11(a) of the Forest
and Rangeland Renewable Resources Planning Act of 1974 (16
U.S.C. 1609(a)) is amended in the second sentence by striking
``the national grasslands and land utilization projects
administered under Title III of the Bankhead-Jones Farm
Tenant Act (50 Stat. 525, 7 U.S.C. 1010-1012)''.
(c) Amendment of the Bankhead-Jones Farm Tenant Act.--
Section 31 of the Bankhead-Jones Farm Tenant Act (7 U.S.C.
1010) is amended by designating current Sec. 31 as subsection
(a) to read as follows:
Sec. 1010. Land conservation and land utilization
To accomplish the purposes stated in the preamble of this
act, the Secretary is authorized and directed to develop a
program of land conservation and utilization as a basis for
grassland agriculture, to promote secure occupancy and
economic stability of farms, and thus assist in controlling
soil erosion, preserving natural resources, protecting fish
and wildlife, developing and protecting recreational
facilities, mitigating flood damages, preventing impairment
of dams and reservoirs, developing energy resources,
protecting the watersheds of navigable streams, conserving
surface and subsurface moisture, and protecting the public
lands, health, safety, and welfare, but is not authorized to
build industrial parks or establish private industrial or
commercial enterprises. The Secretary, in cooperation and
partnership with grazing associations, is authorized and
directed to issue renewable livestock grazing leases to
achieve the land conservation and utilization goals of this
section.
And adding a new subsection (b) as follows:
National Grasslands Fee Adjustments for Conservation
Practices to be Retained as Implemented by the Secretary.--A
reduction in grazing fees for national grasslands will be
allowed for conservation practices and administrative duties
performed by grazing associations.
______
By Mr. GORTON (for himself, Mr. Burns, Mr. Murkowski, Mr.
Stevens, Mr. Kempthorne, Mr. Craig, Mr. Baucus, Mr. Packwood,
and Mr. Hatfield):
S. 853. A bill to amend title 28, United States Code, to divide the
ninth judicial circuit of the United States into two circuits, and for
other purposes; to the Committee on the Judiciary.
the ninth circuit court of appeals reorganization act of 1995
Mr. GORTON. Mr. President, my purpose today is to introduce the Ninth
Circuit Court of Appeals Reorganization Act of 1995, which is similar
to measures I introduced in 1983, 1989, and 1991. This measure has the
cosponsorship of Senators Burns, Murkowski, Stevens, Kempthorne, Craig,
Baucus, Packwood, and Hatfield, who represent all the States forming
the new proposed circuit. This proposal will divide the ninth circuit,
the largest circuit in the country, into two separate circuits of more
manageable size and responsibility. This division would leave the ninth
circuit composed of Arizona, California, Hawaii, Nevada, Guam, and the
Northern Mariana Islands, and would create a new twelfth circuit
composed of Alaska, Idaho, Montana, Oregon, and Washington. Personally,
I believe that the ninth circuit should be divided into three new
circuits, but the composition for the two southern circuits should be
determined by the elected representatives of those States, to whose
judgment I will defer.
Today the ninth circuit is by far the largest of the thirteen
judicial circuits, measured both by number of judges and by caseload.
It has 28 active judges, 11 more than any other. Last year it had an
astounding 8,092 new filings, almost 2,000 more than the next busiest
circuit. It serves over 45 million people, almost 60 percent more than
are served by the next largest circuit. Moreover, the population in the
States and territories that comprise the ninth circuit is the fastest-
growing in the Nation.
Mr. President, the deplorable consequence of the massive size of this
circuit is a marked decrease in the consistency of justice provided by
ninth circuit courts. Judges are unable to keep abreast of legal
developments even within their own jurisdiction--to say nothing of lay
citizens' inability to keep abreast. The large number of judges
scattered over a large area inevitably results in difficulty in
reaching consistent circuit decisions. These judges have nearly
unmanageable caseloads with little time to review the voluminous case
law within the jurisdiction or to consult with their fellow circuit
colleagues. As a result, legal opinions tend to be very narrow with
little precedential value, merely exacerbating the problem. As a former
attorney general for the State of Washington, I personally have
experienced the unique frustrations and difficulties of practicing
before the ninth circuit.
Compounding the problem for the Northwest is that 55 percent of the
case filings in the ninth circuit are from California alone.
Consequently, the remaining States in the ninth circuit, including my
State of Washington and our Northwest neighbors, are dominated by
California judges and California judicial philosophy. That trend cannot
help but persist as the number of cases filed by California's litigious
and exploding population continues to rise. The Northwestern States
confront issues that are fundamentally unique to that region, issues
that are central to the lives of citizens in the Northwest, but which
are little more than one of many newspaper articles in California. In
sum, the interests of the Northwest cannot be fully appreciated or
addressed from a California perspective.
This initiative, Mr. President, is long overdue. As early as 1973,
the Congressional Commission on the Revision of the Federal Court
Appellate System recommended that the ninth circuit be divided. In
addition, the U.S. Judicial Conference found that increasing the number
of judges in any circuit court beyond 15 would create an unworkable
situation. The American Bar Association also adopted a resolution
expressing the desirability of dividing the ninth circuit to help
realign the U.S. appellate courts. Earlier bills on the ninth circuit
reorganization that I introduced during the 101st and 102d Congresses--
and which were virtually identical to this bill--earned the support of
practitioners and judges in the ninth circuit, attorneys general of the
western States, the Department of Justice, and the former Chief
Justice of the U.S. Supreme Court, Warren E. Burger.
The leadership of the ninth circuit has not donned blinders to the
difficulties inherent in a circuit court of this size and workload. It
has responded, however, by adopting a number of innovative but
ultimately ineffectual approaches to these problems. For example the
ninth circuit has divided itself into three administrative divisions:
the northern unit consists of the five Northwestern States that would
comprise the proposed twelfth circuit, and the combined middle and
southern units is identical to the restructured ninth circuit. This
method, however, does little more than recognize the problem without
solving it.
Another innovation of the ninth circuit is the limited en banc court,
for which a panel of 11 of the 28 judges will be chosen by lot to hear
an individual case. Such panels, however, further contribute to the
inherent unpredictability of a jurisdiction as large as the ninth
circuit. Lawyers often must tell their clients that they cannot begin
to predict the likely outcome of an appeal until the panel has been
identified. Mr. President, justice should not be determined by lot.
Moreover, I have serious reservations about any method which would
permit a small minority--as few as six of the sitting judges--to
dictate the outcome of a case contrary to the judgment of a large
majority, solely depending on the luck of the draw.
Despite these attempts to solve the problem, the performance of the
ninth circuit has gotten worse, not better. Its judges are falling
further and further behind. Despite only a moderate increase in new
filings for appeal, the number of pending cases swelled by almost 20
percent in the last year. The ninth circuit now is the slowest of 12
regional circuits in hearing and deciding appeals, on average taking a
full 16 months. Mr. President, justice delayed is justice denied.
The 45 million residents within the ninth circuit continue to pay the
high costs of an unpredictable body of case law and an overburdened
court system. They wait years before cases are heard and decided,
prompting many to forego their rights to judicial redress. Residents in
the Northwest, in particular, [[Page
S7505]] are concerned about the
growing inability of the ninth circuit to handle the boom in criminal
cases stemming from stepped-up enforcement of our drug laws.
The swift and sure administration of justice is a right that should
no longer be compromised in the ninth circuit. I urge my colleagues to
support this important legislation. Mr. President, I ask unanimous
consent that the complete text of my bill be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 853
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Ninth Circuit Court of
Appeals Reorganization Act of 1995''.
SEC. 2. NUMBER AND COMPOSITION OF CIRCUITS.
Section 41 of title 28, United States Code, is amended--
(1) in the matter before the table, by striking out
``thirteen'' and inserting in lieu thereof ``fourteen'';
(2) in the table, by striking out the item relating to the
ninth circuit and inserting in lieu thereof the following new
item:
Arizona, California, Hawaii, Nevada, Guam, Northern Mariana Islands.'';
and
(3) between the last 2 items of the table, by inserting the
following new item:
Alaska, Idaho, Montana, Oregon, Washington.''..........................
SEC. 3. NUMBER OF CIRCUIT JUDGES.
The table in section 44(a) of title 28, United States Code,
is amended--
(1) by striking out the item relating to the ninth circuit
and inserting in lieu thereof the following new item:
``Ninth.......................................................19'';....
a
Amendments:
Cosponsors:
