For a piece of legislation that started the year with scarcely a chance of passage, the waterway toll bill, S. 790, was in fairly good shape when Congress went home last week.

But with the legislators out of town on vacation, the bill ran into a new kind of trouble.

The new trouble is not legislative; the bill is in jeopardy because of a suit in federal court.

And ironically, the suit was filed by a railroad association - even though the barge toll bill would indirectly benefit, and is backed by the railroads.

When Congress recessed, the House had still not voted on its version of the Senate-passed measure, which would require barge lines to pay for using the inland waterways.

Nonetheless, backers were sanguine. Everybody seemed to think the bill would slide through somehow this fall without any more serious problems.

But everybody was ignoring Judge Richey.

Judge Charles R. Richey of the U.S. District Court for the District of Columbia is in a position to create a significant problem for S.790. The judge is about to rule in a lawsuit that could scuttle the careful legislative linkage that has propelled the waterway bill through Congress all year.

When Sen. Pete Domenici (R-N.M.) first proposed the waterway charge in February, he knew it would face resolute opposition from the barge industry, which has never paid a penny for the federal government's multibillion-dollar investment in inland waterways.

To neutralize the industry's opposition, Domenici linked his proposal with a piece of legislation which the bargemen forcefully favored: authorization to build a major new barge facility on the Mississippi at Alton, Ill.

Domenici's legislative construct received presidential sanction in May, when Jimmy Carter announced that he would veto any bill authorizing the Alton project unless a waterway charge bill was passed.

With that assurance, Domenici had used the Alton project to drive the waterway fee to passage in the Senate. The same ploy had pushed the fee successfully through two House committees.

In short, the waterway fee looked like a winner in Congress as long as it had the Alton facility to push it forward. But the judge is preparing to rule in a case that could stop the Alton project indefinetely.

The case came to Richey in 1974, when the Army Corps of Engineers first announced its plan to build the $500 million lock and dam on the Mississippi at Alton.

A group of railroads, concerned that a big new barge facility would drain away Midwestern freight traffic, went to Richey's court to stop the corps. They won the first round in September, 1974, when the judge told the Army that it eneded specific authorization from Congress to undertake the Alton work.

The authorization which Domenici attached to his waterway bill was the answer to that lawsuit.

When it became clear that the authorization would probably be passed, the railroads went back to Richey with another argument: the Army's environmental impact statement for the Alton dam was inadequate.

The requirement that every major federal project be accompanied by a statement of its environmental effects enables opponents of particular projects - if they can prove that an impact statement is inadequate - to tie the government's hands for months or years, or sometimes, forever.

The railroads' complaint in Richey's court raised that possibility for the Alton project. If Richey were to find the impact statement lacking, the new dam would be delayed indefinitely while the Army and environmentalists tried to agree on a statement that the judge would accept.

If Richey were to stop the Alton dam on that ground within the next few weeks, it would probably be dead at least for rest of 1977. That, in turn, would act as a brake on the throttle pushing the waterway toll bill through Congress. S.790 would most likely be a goner.

For the moment, the fate of the waterway fee seems to be in the hands of Charles R. Richey.

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