United States Region 4 EPA 904/9-83-110
Environmental Protection 345 Courtland Street, NE March 1983
Agency Atlanta, GA 30365
&EPA Sixth Annual
Environmental Review
Conference
October 21-22, 1982
Atlanta Marriott Hotel
Atlanta, Georgia
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DISCLAIMER
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SIXTH ANNUAL ENVIRONMENTAL REVIEW CONFERENCE
OCTOBER 21-22, 1983
Atlanta Marriott Hotel
Courtland and International Boulevard
Atlanta, Georgia
TABLE OF CONTENTS
Welcome
Opening Remarks
NEPA and Federal Agency
Decision-Making
Improving the NEFA Process
Reform of the Corps'
Regulatory Program
The Administration's Dismantling
of the 404 Program: THE COUNTER-
OFFENSIVE BEGINS
Sheppard N. Moore
Chief, Environmental Review Section
U.S. EPA, Region IV
Atlanta, Georgia
Charles R. Jeter
Regional Administrator
U.S. EPA, Region IV
Atlanta, Georgia
Michael Privitera
Special Assistant to the Director
Office of Federal Activities
U.S. EPA
Washington, D.C.
A. Alan Hill, Chairman
Council on Environmental Quality
Washington, D.C.
William R. Gianelli
Assistant Secretary of the Army
Civil Works
Washington, D.C.
James T. B. Tripp, Senior Attorney
Environmental Defense Fund
New York, New York
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EIS Preparation and Review
Alternatives
WORKSHOPS
Gerald J. Miller, Ecologist
EIS Review Section
EPA, Region IV
Atlanta, Georgia
Robert B. Howard, Chief
NEPA Compliance Section
EPA, Region IV
Atlanta, Georgia
79
83
Direction for Water Resources
in the 1980's
Impacts of Recent 404 Regulatory
Changes on Federal Agency Reviews
John W. Rushing
U.S. Army Corps of Engineers
South Atlantic Division Office
Atlanta, Georgia
E. T. Heinen, Chief
Environmental Assessment Branch
EPA, Region IV
Atlanta, Georgia
91
104
Synopsis of Revisions to the Section 404 Regulations and Guidelines
List of Attendees
113
114
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WELCOME
SHEPPARD N. MOORE
CHIEF, ENVIRONMENTAL REVIEW SECTION
U.S. EPA, REGION IV
Welcome to Atlanta, Georgia, and the Sixth Annual Environmental
Review Conference. It has become a tradition for us to assemble
in Atlanta in the Fall to discuss how we might improve the review
process. I want to extend a special welcome to those of you from
outside our eight-state region.
We at EPA, Region IV reviewed approximately 100 draft and final
environmental impact statements (EIS's) and 250 environmental
assessments during FY 82. In the last two years we have seen a
drastic reduction in the number of EIS's being prepared on Federal
actions. This is due, in part, to the reduction in the number of
new Federal projects. However, there is also a definite trend
towards well prepared environmental assessments, followed by a
finding of no significant impacts (FONSI). We are especially
pleased to have Michael Privitera, Special Assistant to the
Director, EPA's Office of Federal Activities, and Alan Hill,
Chairman of the Council on Environmental Quality, to bring us
some ideas on further improving the NEPA process.
We also reviewed over 2,000 Section 10/404 permits. As you all may
be aware, there is great interest in regulatory reform and the 404
program is one of the programs that have been identified for change.
We are fortunate to have with us today William Gianelli, Assistant
Secretary of the Army for Civil Works, to discuss this reform. We
are also fortunate to have James Tripp, Senior Attorney for the
Environmental Defense Fund, who will tell us why he disagrees with
the proposed reform.
Following the speakers, we will conduct four workshops. Each work-
shop will be held four times so that you may have the opportunity
to attend all of the workshops if you wish.
At this time, I would like to recognize Charles R. Jeter, Regional
Administrator, EPA, Region IV.
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discussions this morning and throughout the whole Conference,
we can seek ways to do a better job and, to the extent posible,
remove unnecessary burdens.
Again, I want to welcome you to the Conference. We are going to
be here for the presentations today and if we can be of any
assistance to you, please let us know. Thank you.
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OPENING REMARKS BY
CHARLES R. JETER
REGIONAL ADMINISTRATOR
U.S. EPA REGION IV
Thank you, Shepl I just want thank those members of my staff
who have worked hard to put together a good Environmental Review
Conference. I hope that this Conference will enable all of us to
get a better feel for the complexities of the review process and
develop more efficient methods of carrying out our environmental
mandates. I impressed with the turnout and want to thank all of
you for attending. I am sure you will benefit from both the
program speakers and the dialogue in the workshops.
I would like to offer three items that I think are very critical
to all areas of environmental assessment. The first is the impor-
tance of working closely together to achieve our mutual goal of
environmental protection. We do this through such means as early
coordination, careful understanding of important issues, agreement
on what assumptions we will use to base our decisions, and a
thorough understanding among the involved parties. I think all
of this is best achieved through the scoping process. Using
this technique at the onset of project formulation minimizes
surprises down the road and leads to a better plan than would
usually be developed otherwise.
Secondly, one of the major objectives of not only the assessment
program but the entire Agency, and I think in all of government, is
to make good, scientific decisions—decisions based on facts rather
than emotions. In this regard, we at EPA continually look to scien-
tific data. We are always trying to improve the quality and
quantity of this information. To meet this need we are presently
conducting research in such complicated areas as toxic and
hazardous materials. Anytime an agency deals with issues which
have potential for significant environmental concern, to include
almost the whole spectrum of adverse impacts, a great deal of
emotion comes into play. As; a result, we need to make sure, to
the extent possible, that we have good scientific foundations
for our decisions. Similarly, when we are dealing with our
diminishing wetlands resources, we need to be very thorough in
our analysis of the impact of a particular project.
The last item I want to touch on is regulatory reform. I define
this as making better decisions to protect the environment, in a
timely fashion, with reduced administrative burdens. This applies
not only to us in the regulatory community, but also to those of
you who are trying to complete projects. I would hope that in the
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"NEPA AND FEDERAL DECISION MAKING"
MICHAEL L. PRIVITERA, SPECIAL ASSISTANT
OFFICE OF FEDERAL ACTIVITIES
EPA, WASHINGTON, D.C.
Mr. Moore, Mr. Jeter, fellow speakers, ladies and gentlemen, it is a
pleasure to participate in this important annual conference. NEPA
and the Federal Decision making process is not only my topic for today,
but also a subject to which the Environmental Protection Agency and its
Office of Federal Activities, particularly, devotes a good deal of time
and thought. This morning I will attempt to summarize and elaborate on
some of these thoughts, but first let me say how good it is to be back
in Atlanta. I know you probably feel Washington is a good safe distance
away. But for me, I'm sorry Atlanta isn't just around the corner.
As you have heard, I am from the Environmental Protection Agency's Office
of Federal Activities, where, I have gained a special perspective on EIS
preparation and review. This special perspective about the way NEPA is
operating may be less unique than I know. Others are also aware of
problems in the NEPA process which it's framers either did not anticipate
or at least are not the ones to pin the blame upon.
For this reason, I would like to share with you some of the problems I
view in terms of EIS preparation and processing. In my mind they get
to the heart of the misuses of NEPA, and are responsible for complicat-
ing and diluting the important role of the agency decision maker. Towards
the end of this presentation, I will offer ,1 few of my own suggestions I
want you all to think about as possible solutions or- improvements.
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"NEPA AND FEDERAL DECISION MAKING"
The Office of Federal Activities is EPA's central environmental
affairs office. We are responsible for all EPA NEPA compliance, over-
sight on federal facilities' pollution abatement compliance, and, something
Mr. Gianelli will address more in a few minutes, most of the Agency's
"dredge and fill" regulatory compiiance. The NEPA component of our
office under our 309 responsibility spends much of its time commenting
on other agencies compliance activities. In this regard we review
selected Environmental Impact Statements from other agencies.
EPA's Regional Offices most often serve as the principal reviewer of
almost all EIS's - nearly 600 draft and 600 final EIS's annually. To
augment this effort OFA provides guidance, assistance, and decisions as
necessary. In this sense, we serve as the principal reviewer for those
EIS's which concern more than one region or which involve major policy
issues on which the Agency has not developed its position. In other
words, OFA provides general systems management arid coordinates the
development and presentation of EPA's position on unique or controversial
EIS's.
So much about OFA. I was specifically asked to speak about NEPA, and the
correlating role of the federal agency decision maker in the NEPA process.
In 1969 Congress passed a law that explicitly altered the way the federal
government is to consider the environment, and the way the government is
to make decisions about major federal projects. The National Environmental
Policy Act (NEPA) declared that in doing its business, the government was
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"NEPA AND FEDERAL DECISION MAKING'
to seek "create and maintain conditions under which man and nature can
exist in productive harmony". Towards this end, the law requires federal
agencies to consider environmental factors in their decision making. And
in some cases to include in these decisions a comprehensive examination of
alternatives, an analysis of expected impacts, and a balancing of environ-
mental, social, and economic interests.
Having spoken with many people this past year with much first hand experience
in this area, it difficult to show that the objectives of this venerable
law are being achieved. The reason is that after 12 years, Federal agencies
still lack standard criteria for evaluating these objectives, as well as a
standard review procedure for looking at the Environmental Impact State-
ment. And in spite of valiant attempts to attain the opposite, we have
gotten bogged down in details that serve less to ensure economic and environ-
mental balance, than to ensure project slowdowns, litigation, and sometimes
the unnecessary aborting of projects altogether.
At the heart of some of my misgivings about the NEPA process is the apparent
failure on the part of bureaucrats and the public alike to understand the role
of the Environmental Impact Statement, the Finding Of No Significant Impact and
the Environmental Assessment in the total picture of making worthy decisions
about significant federal undertakings. Unless some changes are made or - at
least attitudes are made to change - the impact assessment process will
increase as a vehicle for expressing general discontent over a development
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"NEPA AND FEDERAL DECISION MAKING'
proposal, rather than become the research tool it is meant to be in the
formulation of final decisions. It will continue to confuse dispute over
values with good science and wrongly misconstrue a process of analysis which
by nature is judgmental with something thought to be objective.
To appreciate the evolution of the environmental impact statement, and to
understand the difficulty is can cause, it is necessary to take a look at
NEPA itself.
In 1974, the environmental commentator, Gilbert F. White wrote "No federal
legislation of recent years bears greater potential significance for the
management of the environment in the United States than does Section 102
of the National Environmental Policy Act of 1969. And no other legislation
inspires a more sober recognition of the risk of uncertainty attending cur-
rent efforts to assess the effects of manipulating soil minerals, water,
air, vegetation, transport, and land. In the tradition of earlier attempts
to specify the impacts of human interventions in interacting hydro!ogical,
biological, and social systems, the environmental impact statements requried
by Section 102 confront noble aspiration with seedy and incomplete
performance."
I believe this twin edged assessment is still true.
No one in this room can deny that NEPA is a broadly worded congressional
enactment that lacks precise direction for administrators. Its general
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"NEPA AND FEDERAL DECISION MAKING
a
intent was clear, but its brevity and lack of precision have left
dministrators considerable discretion. For this reason it is not
surprising that there has often existed a gulf between the expectation
of the NEPA supporters and the decision making of federal agencies.
NEPA can be said to insist that agencies in order to satisfy decision-
making routines have to incorporate an identification and an evaluation
of the environmental impacts of their actions. The effect of the act,
then, is to require the Agencies to specify the likely impacts of
their proposed projects, to obtain the comments of other interested
agencies, and to make public their own findings and the comments of
others.
On paper this sounds admirable until we recognize that the controversies
stemming from this broad law have been the consequence of a system
of governance in which piecemeal, incremental decision making has come
to predominate ajnd the role of the courts has superceded the role of the
agencies in deciding what constitutes reasoned environmental decision
making.
When NEPA was enacted, agencies were presented a new law whose import
for their daily activities was largely undefined. It was the early
1970's and the environmental movement like the public interest movement
in general began to recognize previously untapped power which lay in the
judiciary for remaking legislation in their own likeness. To a great
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"NEPA AND FEDERAL DECISION MAKING"
degree the result has been that environmental interests and the seeming
lack of Agency agresiveness to respond to the difficulties raised by
NEPA produced in many instances judicial decisions which required overly
strict agency compliance with the statute.
Over time, NEPA's meaning has evolved and revolved through countless court
decisions in which the courts have showed considerable willingness to over-
rule deliberate and sincere agency efforts in order to fashion the statute
in the mold we find it today.
Technically, NEPA's requirement is purely procedural, and Title I of the
Act is no more than a policy statement and an authorization for agencies
to consider environmental effects in carrying out their programs. In
doing so, the agencies are to alert the Congress, other agencies and the
public of the environmental effects of the proposed action. Again,
technically, the agency is free to on balance permit adverse environmental
effects, no matter how severe in making the ultimate decision, assuming,
of course, that it has properly weighed these effects against other
competing factors.
But what may be said as "technically" and what has come to be seen as
legal interpretation are two different things, for the judiciary has
in effect ruled that NEPA requires Federal Agencies to administer
their duties consistent with the court's interpretation of NEPA's goals.
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"NEPA AND FEDERAL PEC]SIGN MAKING"
In so doing, the judiciary has bifurcated an already complicated decision
making process. And, judges and lawyers have laid claim to the environ-
mental expertise once popularly thought to rest within the federal agencies
themselves.
Decision making in the real sense or in the sense of federal agencies
making decisions about their own actions is on shakey ground. Where once
decisions could be made that took environmental impacts into consideration,
these impacts have now become paramount in the decision making process, and
the Environmental Impact Statement often becomes in effect the sole weight
on which decisions are made.
In other words, we have come to treat the EIS as a kind of amicus curiae,
or friend of the court. In this new era of judicial management of environ-
mental activities it is no longer necessary for a party to show a high level
of particularized injury in order to seek remedy in the courts: any alleged
violation of NEPA, and this is where the EIS comes in, has become grounds for
stopping a project until the regulations have been met.
The integrity of environmental impact statements has been threatened by two
unique tendencies of the current wave of advocacy. One is the strong tempta-
tion, enforced by the level of enthusiasm for environmental (protection) action
to emphasize almost irrelevant, but at best tangential, investigations that
will be used ultimately to support prospective advocacy against the project
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"NEPA AND FEDERAL DECISION MAKING"
proposed. This confuses the process. A second is the expectation that much
action on the statements will take place in the public arena. To that extent,
there will be temptations for investigators to choose topics, select materials,
and present findings with an eye to the rhetorical demands of the forum. This
makes for a less than useful EIS to the decision maker and makes it more
contentious than it probably should be.
It should be clear, but it is not clear, to all who examine environmental
systems that there can be no perfect complying with the instructions in
Section 102, much less CEO's regulations. The perfect Statement can
inevitabaly be attacked as lacking
1. A complete description of the likely biological, physical
and economic impacts of the proposed work, and
2. A complete description of all practicable alternatives to the
proposed work.
The first is unattainable because man lacks knowledge of important
parts of most of the systems which would be disturbed. We can predict
certain events without fully understanding all the processes involved,
as with the effect of thermal pollution on fresh water organisms. But
for a greater number of phenomena neither understanding nor predictive
skill is sufficiently strong to permit ronfident forecasts of what will
happen.
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"NEPA AND FEDERAL DECISION MAKING"
Additionally, if it were practicable to quantify all of the impacts of
all the alternatives, a third deficiency would prevent us from producing
a perfect impact statement. This is the difficulty of attaching weights
to the numerous impacts in order to permit social evaluation. Such
evaluation requires agreement on social aims and on the value system to
be used in assessing the effects of a given action in achieving those
aims. Frequently the description is mixed up with evaluation and this
is to be expected, but the processes are different. It is possible to
measure a change in soil productivity or lung cancer morbidity or the
time consumed in the journey to work. But assigning social value to these
quantities for purposes of comparison and choice is especially troublesome,
So where does all this get us? As decision makers how do we restore
sense and balance to the protracted EIS process; how do we keep the courts
away from an area they are not equipped to understand; how do we return to
making sensible decisions in which a number of factors are allowed to
contribute and to compete in that final decision; and finally, how do we
involve the public in such a way as to actually determine the scope of a
project or the limits of the EIS that may need to be prepared, rather than
create a public information tool that results in no meaningful limits? In
short, how do we get back on the course that insures the "productive harmony"
inherent in NEPA's preamble and away from the politicization that has become
a part of what should be scientifically based decisions?
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"NEPA AND FEDERAL DECISION MAKING"
Some have suggested that to begin with, either with or without formal
administrative or legislative direction, authors and overseers of major
federal actions could use early scoping sessions to actually encourage
more environmental mediation between developers, and the affected public.
Membership in public participation efforts become a critical issue when
there is an obvious imbalance in input. Congressional intent, agency
behavior, clarification of roles and "representativeness" are major factors
in promoting or inhibiting similar disputes among interest groups. A kind
of environmental arbitration can foreclose at the bginning of a project
the likeliness that an EIS will end up in litigation. Perhaps this is
something the workshop on EIS preparation and review might shed some
light upon.
A second recommendation deals with the enviromental impact statement
itself and all the associations or details this conjures up. I think it
has been forgotten that the EIS was not designed to be the decision
making process itself. Rather it must be seen that it can be a useful
tool in the decision making process. For it to be useful, it must not
only forecast environmental effects of a certain action, but it must also
indicate their significance. In this era of new or relatively new CEQ
regulations, the machinery for producing environmental assessments, much
less environmental impact statements, has still not begun to mesh satis-
factorily with the machinery for making decisions. I can offer no
immediate ideas for rolling back the EIS, for standardizing it. For
starters perhaps a homogenizing of the 147 or so sets of agency regulations
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'NEPA AND FEDERAL DECISION MAKING"
governing this process, the encouragement of more generic EISs or perhaps
a simple avoidance of the problem through the creation of more categorical
exemptions. It's a difficult problem we must consider not only alone, but
in relation to the next issue.
Very simply, and again I offer this as my own opinion, the role of the
courts in implementing the National Environmental Policy Act needs to be
limited. Under the present status of the law the ultimate decision maker
on many projects under NEPA is a judge. No matter how well an agency performs
in compliance with NEPA a cause of action can be stated alleging that the
performance was inadequate. The costs of delay and of litigation itself
coupled with uncertainty as to how any one judge may apply NEPA law
(particularly to a project not favored by the judge), place tremendous
pressure on the project and give those bringing the suit great power to
manipulate the agency, to modify the project and make special concessions.
One way to alleviate this serious problem would be for the Congress to give
finality to the EIS review and allow only very limited judicial review of
the decision already made by the agency. This would place all the energy
to stop or alter a project up front where it belongs and where it can more
usefully be mediated, in the scoping process and in the development of the
EIS.
It is tempting to believe that if we did a better job in predicting and
assessing impacts, these conflicts would go away. Indeed, this is precisely
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the assumption of the courts: their response to allegations that not enough
alternatives have been considered is to require the consideration of more.
Similarly, the reaction of public officials to charges that a study of a
particular environmental hazard is biased is to call for the creation of
a blue-ribbon panel of scientists to do an objective study that will lay to
rest, once and for all, questions about the problem at hand. These responses
are based on the same premise as NEPA: that the "right" information is out
there waiting to be gathered, and that once collected, it will help us find
the "right" solution. But when environmental disputes stem from value
differences, the conflict cannot be resolved merely with better information.
When we attempt to resolve value conflicts by appeal to expert analysis, the
analysis often becomes a lightning rod for underlying differences. No
matter how conscientious and impartial an agency, its predictions will not
be believed if people fundamentally disagree on what the future holds. And
no matter how solicitous an agency is in obtaining different points of view,
people will not support its decision if they disagree with the procedures
used to balance competing interests.
Technical analysis is limited to being a technical conflict resolution.
If we are to do better, we must spend more time trying to build consensus
among legitimate competing interests through negotiation and compromise.
To do otherwise is to treat the symptoms and not the disease.
Thank you.
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"IMPROVING THE NEPA PROCESS"
A. ALAN HILL, CHAIRMAN
COUNCIL ON ENVIRONMENTAL QUALITY
WASHINGTON, B.C.
GOOD i'lORNING, IT IS INDEED A PLEASURE TO BE ABLE TO PARTICIPATE
IN REGION IV's SIXTH ANNUAL ENVIRONMENTAL IMPACT STATEMENT CON-
FERENCE, I AM ESPECIALLY PLEASED TO BE HERE TODAY BECAUSE I HAVE
FOUND THAT, OVER THE PAST YEAR AND A HALF AS CHAIRMAN OF THE
PRESIDENT'S COUNCIL ON ENVIRONMENTAL QUALITY, I HAVE NOT HAD ENOUGH
OF A CHANCE TO TALK CANDIDLY WITH PEOPLE IN THE FIELD WHO HAVE TO
IMPLEMENT THE POLICIES THAT WE IN WASHINGTON DEVISE,
THE PARTICIPANTS AT THIS CONFERENCE ARE PREDOMINATELY THOSE
WHO EITHER PREPARE EIS's FOR THE FEDERAL AGENCIES OR REVIEW THE
EIS'S THAT HAVE BEEN PREPARED, YOU ARE THE ONES WHO HAVE TO LISTEN
TO THE CONCERNS OF APPLICANTS AND CITIZENS GROUPS, AND THAT HAVE TO
WORRY ABOUT WHETHER THE EIS YOU HAVE PREPARED WILL WITHSTAND
CHALLENGE IN COURT. I BELIEVE THAT IT IS AS IMPORTANT FOR THE
POLICYMAKERS TO HEAR HOW THE POLICIES THEY HAVE STRUCTURED ARE
WORKING AS IT IS FOR YOU TO LISTEN TO US EXPLAIN OUR POLICIES.
I DO HOPE THAT THROUGH THE COURSE OF THE DAY YOU WILL LET ME
AND MY STAFF HEAR WHAT DAY-TO-DAY PROBLEMS YOU HAVE HAD LIVING WITH
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DURING THE PAST YEAR AND A HALF, I HAVE INITIATED
A NUMBER OF PROJECTS AT CEQ, WE ARE TAKING A HARD
LOOK AT THE FEDERAL GOVERNMENT'S ABILITY TO ACCURATELY
FORECAST FUTURE ENVIRONMENTAL PROBLEMS. THE GOVERNMENT'S
LACK OF FORECASTING CAPABILITY IS A PROBLEM THAT THE GLOBAL
?nOO REPORT TO THE PRESIDENT. PREPARED BY CEQ IN 1980, FOUND
TO BE A PRESSING ONE, VfE ARE ALSO LOOKING VERY CAREFULLY AT
THE ISSUE OF ACID RAIN AND WE HOUSE THE INTERAGENCY TASK
FORCE CREATED BY CONGRESS TO COORDINATE ACID RAIN RESEARCH
EFFORTS, FINALLY WE ARE ACTIVELY PARTICIPATING IN THE
PRESIDENT'S REGULATORY REFORM PROGRAM WITH RESPECT TO THE
MEPA PROCESS, BECAUSE THE MEPA PROCESS is THE SUBJECT OF
THIS CONFERENCE, I WOULD LIKE TO EXPLAIN WHAT WE ARE DOING
HERE IN SOME DETAIL,
LET ME FIRST MAKE CLEAR THAT THE REAGAN ADMINISTRATION
FULLY SUPPORTS THE GOALS AND POLICIES OF THE NATIONAL ENVIRONMENTAL
POLICY ACT, IN OUR VIEW IT is CRITICAL THAT AGENCIES,
BEFORE ACTING, KNOW THE ENVIRONMENTAL CONSEQUENCES OF
PROPOSED ACTIONS AND HAVE COMPARED THE ENVIRONMENTAL CONSEQUENCES
OF REASONABLE ALTERNATIVES. As WE ALL KNOW, NEPA DOES NOT
REQUIRE THAT AN AGENCY CHOOSE AN ALTERNATIVE THAT IS THE
LEAST ENVIRONMENTALLY ADVERSE, Jj DOES REQUIRE THAT AN AGENCY
UNDERSTAND THE ENVIRONMENTAL CONSEQUENCES OF THE ACTIONS IT
PROPOSES TO TAKE AND MINIMIZE THOSE CONSEQUENCES IF PRACTICAL,
THE CEQ REGULATIONS ISSUED IN 1978 WERE DESIGNED TO PROVIDE
A BLUEPRINT FOR AGENCIES TO USE IN IMPLEMENTING THE NEPA
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PROCESS, THE REGULATIONS WERE INTENDED TO REDUCE PAPERWORK
ASSOCIATED WITH THE PROCESS, ADD CONSISTENCY TO THE PROCESS
AND HOPEFULLY, REDUCE THE LITIGATION THAT HAS BECOME ASSOCIATED
WITH THE PROCESS,
ONE OF MY FIRST ACTS AS .CHAIRMAN WAS TO INITIATE A
PROJECT TO SEE IF THE CEQ REGULATIONS HAD CARRIED OUT THESE
GOALS, THEREFORE, OVER THE PAST YEAR WE HAVE ON SEVERAL
OCCASIONS REQUESTED COMMENTS FROM THE AGENCIES AND THE
PUBLIC ON HOW THE CEQ REGULATIONS WFRF WORKING,
FURTHER, WE HAVE PRESENTED A REVIEW OF THE NEPA PROCESS IN
A SENATE OVERSIGHT HEARING, WE EVEN HELD A PUBLIC MEETING AT CEQ.
THROUGHOUT OUR REVIEW PROCESS I HAVE BEEN IMPRESSED BY THE
THOUGHTFUL COMMENTS PRESENTED, THE COMMENTS BY REGIONAL AND HEAD-
QUARTERS STAFFS HAVE BEEN MOST HELPFUL,
I WOULD LIKE TO BRIEFLY SUMMARIZE SOME OF THE THINGS WE
HAVE FOUND IN ANALYZING THE COMMENTS WE RECEIVED,
FIRST WE ASKED ABOUT THE "SCOPING" PROCESS, As YOU
KNOW, THE CEQ REGULATIONS REQUIRE THAT AGENCIES "SCOPE" AN
EIS TO DETERMINE WHICH ISSUES ARE SIGNIFICANT AND WHICH ARE
NOT, THIS PROCESS MUST BE A PUBLIC ONE. F'loST COMMENTERS
BELIEVE THAT THE SCOPING PROCESS IS A USEFUL PROCEDURE TO
IDENTIFY CONTROVERSIAL ISSUES, GENERALLY, THOSE WHO BELIEVE
OTHERWISE THINK IT IS NOT USEFUL BECAUSE MEETINGS ARE POORLY
ATTENDED, THE FOCUS IS ON THE PROPOSAL ITSELF RATHER THAN
IDENTIFYING ISSUES TO BE ANALYZED, OR THE CONTROVERSIAL
ISSUES HAVE ALREADY BEEN IDENTIFIED,
ALMOST ALL THE COMMENTERS BELIEVE THAT THE EARLIER THE
EIS PROCESS AMD SCOPING BEGINS, THE MORE EASILY IT CAN BE
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INTEGRATED INTO AN AGENCY'S PLANNING PROCESS AND THE LESS
LIKELY THE FJS WILL BE USED TO JUSTIFY DECISIONS ALREADY
REACHED,
ONE GROUP WHICH CRITICIZES THE TIMING OF THE SCOPING
PROCESS CONSISTS OF INDUSTRY MEMBERS WHO MUST OBTAIN FEDERAL
PERMITS FOR PRIVATE PROJECTS, THESE INDUSTRY COMMENTERS
COMPLAIN THAT THE SCOPING PROCESS OCCURS TOO LATE FOR GOVERNMENT
AGENCIES BECAUSE DECISIONS CONCERNING PROJECT FEASIBILITY,
ENGINEERING, DESIGN, DEVELOPMENT PLANS, AND FINANCING HAVE
BEEN MADE LONG BEFORE SCOPING OFFICIALLY BEGINS, THEY
SUBMIT THAT THE RELEVANT AGENCIES ARE INVOLVED AND PROVIDE
SIGNIFICANT INPUT DURING THE PLANNING PHASE OF A PRIVATELY
INITIATED PROJECT. THESE COMMENTERS ARGUE THAT, THEREFORE,
BY THE TIME OFFICIAL SCOPING BEGINS, THE CONTROVERSIAL OR
SIGNIFICANT ISSUES ARE ALREADY KNOWN, FOR THE SCOPING
PROCESS TO HAVE VALUE IN DEC ISIONMAKING FOR THEM, THESE
INDUSTRY APPLICANTS THINK THAT SCOPING MEETINGS SHOULD BE
HELD WHEN THE APPLICANT IS STILL IN THE FORMULATING STAGE OF
A PROJECT,
V,!E ARE NOW IN THE PROCESS OF DEVELOPING GUIDANCE DOCUMENTS
TO THE FEDERAL AGENCIES WHICH WILL ADDRESS SOME OF THE
PROBLEMS IDENTIFIED WITH THE SCOPING PROCESS, FOR EXAMPLE,
WE WILL BE SUGGESTING THAT AGENCIES RECOGNIZE THE SITING
WORK APPLICANTS HAVE DONE AND INTEGRATE THIS WORK INTO THE
SCOPING PROCESS, WE WILL STRONGLY SUGGEST THAT AGENCIES END
THE SCOPING PROCESS AT THE PRE-DRAFT EIS STAGE BY PUBLICLY
NOTING THE ALTERNATIVES AND ISSUES THE AGENCY HAS FOUND TO
BE SIGNIFICANT, V,(E WILL BE MAKING OTHER SUGGESTIONS WHEN
THIS GUIDANCE DOCUMENT Ib PUBLISHED THIS FALL,
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K'E ALSO ASKED WHETHER CATEGORICAL EXCLUSIONS ~ THAT
IS, THOSE ACTIVITIES WHICH DO NOT REQUIRE EITHER AN EIS OR
AN ENVIRONMENTAL ASSESSMENT — HAVE BEEN ADEQUATELY IDENTIFIED
BY THE VARIOUS AGENCIES, FloST COMMENTERS THINK THAT ADDITIONAL
CATEGORICAL EXCLUSIONS ARE NECESSARY, MANY INDICATE THAT
EXISTING CATEGORICAL EXCLUSIONS ARE TOO RESTRICTIVE, THEY
ALSO BELIEVE THAT THE CURRENT PROCEDURES TO ADD CATEGORICAL
EXCLUSIONS ARE CUMBERSOME, f'lANY BELIEVE THAT THE CONCEPT OF
CATEGORICAL EXCLUSIONS CANNOT BE ADEQUATELY ADDRESSED BY A
LIST OF ACTIONS. THEY BELIEVE THAT A DETERMINATION THAT A
PROJECT CAN BE EXCLUDED FROM NEPA REVIEW SHOULD BE BASED ON
THE DEFINITION OF CATEGORICAL EXCLUSIONS CONTAINED IN THE
CEQ REGULATIONS (40 CFR 1508,4) AND NOT ON A FIXED AGENCY
LIST,
A FEW OF THE COMMENTS INDICATE THAT AGENCIES REQUIRE
TOO MUCH PAPERWORK TO DOCUMENT THAT THE PROPOSAL CAN BE
CATEGORICALLY EXCLUDED, IN MY VIEW, AN AGENCY SHOULD RARELY
NEED TO DOCUMENT THE FACT THAT AN ACTIVITY IS CATEGORICALLY
EXCLUDED FROM NEPA REVIEW. OTHERS INDICATE THAT AGENCIES
ARE BEING OVERLY CONSERVATIVE IN INTERPRETING CATEGORICAL
EXCLUSION CRITERIA AND ARE REQUIRING ENVIRONMENTAL ASSESSMENTS
BECAUSE OF THE FEAR OF LITIGATION,
BECAUSE OF THESE COMMENTS, WE ARE ASKING AGENCIES TO
REVIEW THEIR CATEGORICAL EXCLUSIONS TO DETERMINE IF THEY CAN
BE EXPANDED, WE HAVE HEARD STORIES OF AGENCIES WHICH PREPARE
THOUSANDS OF ENVIRONMENTAL ASSESSMENTS A YEAR BUT ONLY A
20
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HANDFUL OF EIS'S, IF THIS IS HAPPENING AT YOUR AGENCY, THEN
THAT INDICATES TO ME THAT YOU NEED TO TAKE A LOOK AT THE
KINDS OF THINGS YOU ARE DOING EA's FOR TO SEE IF SOME OF
THOSE ACTIVITIES CAN BE EXCLUDED FROM THE NEPA PROCESS,
THE COMMENTS RECEIVED ALSO INDICATE THAT FEW AGENCIES
ARE USING THE TECHNIQUE OF ADOPTING ENVIRONMENTAL DOCUMENTS
PREPARED BY OTHER AGENCIES, UNDER THE CEQ REGULATIONS,
AGENCIES CAN ADOPT AN EIS PREPARED BY OTHER FEDERAL AGENCIES
IN SOME CASES, THE QUESTION HAS BEEN RAISED AS TO WHETHER
ENVIRONMENTAL ASSESSMENTS AND FINDINGS OF No SIGNIFICANT
IMPACT ARE ADOPTABLE, ALTHOUGH THE CE9 REGULATIONS ARE
SILENT ON THIS POINT THERE IS NOTHING IN THE REGULATIONS
THAT WOULD PRECLUDE SUCH ADOPTION AND WE ARE ENCOURAGING
AGENCIES TO CONSIDER ADOPTING ENVIRONMENTAL ASSESSMENTS,
THE COMMENTS WE RECEIVED OVER THE PAST YEAR ALSO INDICATE
THAT FEDERAL AGENCIES CAN SIGNIFICANTLY REDUCE TIME DELAYS
AND THE COST OF EIS'S THROUGH BETTER INTERNAL AND EXTERNAL
MANAGEMENT PRACTICES, THE MOST FREQUENT COMMENT FROM NON-
FEDERAL COMMENTERS IS THAT THE FEDERAL LEAD AGENCY SHOULD
IDENTIFY A PROJECT COORDINATOR TO OVERSEE THE EIS PROCESS.
THIS PROJECT COORDINATOR WOULD BE ASSISTED BY AN INTERAGENCY
PROJECT MANAGEMENT TEAM WHICH WOULD PERIODICALLY MEET TO
DISCUSS THE STATUS OF THE EIS, THE PROJECT MANAGEMENT TEAM
WOULD INCLUDE STATE AND LOCAL AGENCY REPRESENTATIVES (AND
POSSIBLY CITIZEN GROUPS) AND WOULD ENSURE TIMELY AND EFFECTIVE
COORDINATION AND PREPARATION OF THE EIS,
21
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FEDERAL AGENCIES ARE ALSO CRITICIZED BY A NUMBER OF
COMMENTE.RS FOR NOT ESTABLISHING AND MAINTAINING TIGHT TIME
SCHEDULES FOR PREPARING THE EIS, FOR NOT PROVIDING RESPONSIVE
AND TIMELY REVIEW COMMENTS (E,G,, "NEED MORE INFORMATION" ON
AN IMPACT WITHOUT IDENTIFYING THE INFORMATION THEY REALLY
DESIRE), FOR NOT MAINTAINING TIGHTER COST MANAGEMENT OVER
CONSULTANT CONTRACTS, AND FOR NOT ACCEPTING THE ENVIRONMENTAL
PROCESSING OF ANOTHER FEDERAL AGENCY. OTHER COMMENTERS
REQUEST THAT FEDERAL AGENCIES HAVE THEIR LEGAL STAFF REVIEW
EIS'S IN AN ATTEMPT TO REDUCE THE CHANCES OF SUBSEQUENT
LITIGATION,
THE FORM AND CONTENT OF THE EIS ALSO RECEIVED A CONSIDERABLE
NUMBER OF COMMENTS, THE MOST FREQUENT COMMENT IS THAT THE
EIS SHOULD ENCOMPASS ALL FEDERAL ENVIRONMENTAL REQUIREMENTS
(l,E,, ENDANGERED SPECIES, HISTORIC PRESERVATION, PERMITS,
AND OTHERS) ,
AS I INDICATED WE ARE NOW FINALIZING A GUIDANCE DOCUMENT
WHICH WILL ADDRESS THE ISSUES RAISED ABOVE AND OTHERS. I DO
HOPE THAT THOSE OF YOU WHO ACTUALLY WRITE THE EIS'S WILL
FIND THIS OF VALUE, OUR EFFORTS HERE ARE AIMED AT MAKING
THE NEPA PROCESS WORK MORE EFFICIENTLY. As I HAVE ALREADY
POINTED OUT THIS ADMINISTRATION BELIEVES THAT THE NEPA
PROCESS IS A USEFUL ONE SINCE IT CAN IDENTIFY POTENTIAL
PROBLEMS AT AN EARLY STAGE OF THE PLANNING PROCESS, IT ALSO
BRINGS THE PUBLIC INTO THE PROCESS AT AN EARLY STAGE. IN
SPITE OF CONTRARY MISCONCEPTIONS, THIS ADMINISTRATION DOES
22
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NOT VIEW PUBLIC PARTICIPATION AS A VEHICLE TO "STIR UP
DISSENSION OR OPPOSITION TO A PROJECT". INSTEAD IT IS
CRITICAL FOR A REASONED ANALYSIS OF THE PROPOSAL,
CEQ TAKES ITS NEPA OVERSIGHT RESPONSIBILITIES SERIOUSLY,
WE WILL CONTINUE TO LOOK FOR WAYS TO MAKE THE PROCESS WORK
BETTER. I REQUEST THE HELP OF YOU AND YOUR COLLEAGUES TO
FURTHER OUR EFFORTS.
23
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QUESTIONS FROM THE AUDIENCE FOLLOWING MR. HILL'S PRESENTATION:
Mr. Hill:
Question; Going back to the question Mr. Privitera raised,
does the Administration intend to seek legislation to limit access to
the courts for NEPA cases?
Answer; This point has been raised by Mr. Privitera and
others. At CEQ we have not finished our internal thought process on
this issue. The best defense of the NEPA process is to make the
process operate as efficiently and as economically as possible.
In general, if a case can be made that the majority
of NEPA suits are brought for non-meritorious reasons, that is, for
slowing or stopping a project, then access to the courts through
NEPA should be examined. In this regard, CEQ intends, after pursuing
all judicial remedies, to ask the Congress to exclude psychological
impacts in the nuclear industry from NEPA review.
Question; How can the NEPA process be incorporated into private
sector planning?
Answer; This is one of the toughest parts of NEPA; that is,
the compatability of NEPA and the long-range planning efforts of
private industry. As a case in point in the mining industry, planning
for new mines is done on a 10-year cycle. This is long before any
regulatory action is necessary. One possible answer to this is a
joint review process such as is now in place in Colorado. In this
process, the regulatory review of a project occurs early in the project
planning, with the applicant as full participant. Despite problems,
this may be an idea worth purusing.
Question; What is going to be in the guidance document that
will be issued by CEQ and how will it change the CEQ regulations?
Answer; The new guidance document will expand the discussion
in the regulations into three areas; (1) time schedules, (2) early
scoping, and (3) joint review. In my view, the CEQ regulations are
a living document; they are not cast in concrete. Changes will
occur from time to time through a careful, and thoughtful process.
The guidance document is being developed with an eye
on allowing each agency some flexibility. As an example, we would
like to see the greater use of categorical exclusions by Federal
agencies and we would also like to see more consistency between
agencies in respect to what types of actions should be categorically
excluded.
24
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Question; Will CEQ try to shed any light on what is significant
in respect to the CEQ regulations?
Answer; That is the sixty-four thousand dollar question!
There is case law in this area but Congress has not addressed the
question. In fact, it .stayed far away from the question. Signi-
ficance is determined in the eye of the beholder and we are hesitant
to approach this area, believing that it should be left up to the
individual agency.
Question; In respect to scoping, is CEQ doing anything to clarify
when the scoping process for a project is closed? That is, is an
agency required to address new issues raised after a formal scoping
process?
Answer; CEQ encourages early scoping of projects; believing
there is an appropriate early period when issues should be raised,
but after that period new issues should not be raised. This is a
function of the quality of the scoping process and I believe there
is a need for better management in this area. As a generalization,
I have noted that if the scoping process begins in a participatory
manner, the process seems to flow very well. In this regard, I
believe the Corps of Engineers does an excellent job in this area
and in their public participation program in general.
Question; How many NEPA-related court cases are there, in average,
per year?
Answer; As best I can recall, it is running about 140 cases
per year out of 900 environmental documents (DEIS, FEIS, Supplements)
per yer. This level has remained relatively constant for the past
three years.
Question: What are the leading issues raised in the court cases
involving NEPA?
Answer: The predominate issues are the challenge of an agency's
decision not to prepare an EIS and challenges to the adequacy of pre-
pared EIS's.
Question: When will the CEQ guidance document be out?
Answer; Hopefully by the end of December 1982.
Question; Is there any attempt by CEQ to tie all environmental
regulatory requirements into one process?
Answer; This was considered by the Regulatory Task Force headed
by Vice President Bush but was dropped because of its complexity. I
personally would favor this type of reform.
25
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Question; What about the cumulative impact of several small
decisions?
Answer; This is covered in the CEQ regulations by the process
of tiering. That is, a conceptual EIS for the entire program is
prepared and then later, when a specific section of the project
evolves, they are incorporated by reference to the relevent sections
of the original environmental document.
Question; Who determines the sufficiency of an EIS?
Answer; This is done by EPA, with CEQ serving to review those
environmentally controversial projects referred to it by others.
Referred projects go to the General Counsel of CEQ, which initiates
discussion between the involved agencies.
Question; What is the legal authority for CEQ?
Answer; CEQ was set up under the administrative guidance in
Executive Order 11514, which also authorized CEQ to prepare imple-
menting regulations for NEPA.
26
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"REFORM OF THE CORPS' REGULATORY PROGRAM"
WILLIAM R. GIANELLI
ASSISTANT SECRETARY OF THE ARMY
WASHINGTON, B.C.
IT IS A PLEASURE TO BE HERE TODAY. I
CONSIDER CONFERENCES SUCH AS THIS TO BE AN
IMPORTANT FORUM FOR AGENCIES TO PASS ALONG AND
DISCUSS POLICY MATTERS. JUST TUESDAY, I PARTICI-
PATED IN A REGULATORY CONFERENCE HELD BY THE CORPS
FOR ITS FIELD REGULATORY LEADERSHIP AND FOUND IT
VERY VALUABLE. YOUR AGENDA FOR THIS CONFERENCE
CERTAINLY COVERS MANY OF THE KEY ISSUES FACING US
TODAY. THE VARIETY AND BALANCE IN YOUR LIST OF
SPEAKERS SHOWS AN AWARENESS THAT THERE IS MORE
THAN ONE SIDE TO THESE KEY ISSUES. I AM PARTICU-
LARLY PLEASED THAT YOU HAVE INCLUDED THE ARMY
CORPS OF ENGINEERS' REGULATORY REFORM PROGRAM ON
YOUR AGENDA.
DUE TO THE DIVERSITY OF THE AUDIENCE, LET ME
BRIEFLY SUMMARIZE THE PROGRAM. THE CORPS' 80-
YEAR-OLD REGULATORY PROGRAM STEMS PRINCIPALLY FROM
TWO LAWS: THE RIVER AND HARBOR ACT OF 1899 AND
THE CLEAN WATER ACT. UNDER SECTION 10 OF THE 1899
LAW, A CORPS' PERMIT IS NEEDED BY ANYONE WANTING
TO BUILD STRUCTURES, DO WORK OR PLACE FILL IN THE
NAVIGABLE WATERS OF THE UNITED STATES. SECTION W
OF THE CLEAN WATER 'ACT REQUIRES A CORPS' PERMIT
BEFORE FILL OR DREDGED MATERIAL CAN BE PLACED IN
NAVIGABLE WATERS.
27
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ALTHOUGH THE CORPS INITIALLY INTERPRETED THE
TERM NAVIGABLE WATERS UNDER SECTION W TO BE THE
SAME AS FOR THE 1899 RIVER AND HARBOR ACT, THE
COURTS AND SUBSEQUENT REGULATIONS HAVE GREATLY
EXPANDED THE DEFINITION OF SECTION W JURISDIC-
TION TO INCLUDE ALL WATERS OF THE UNITED STATES
AND ADJACENT WETLANDS.
LET ME EMPHASIZE AT THE OUTSET THAT THE CORPS
OF ENGINEERS' REGULATORY PROGRAM DID NOT EVOLVE IN
THE USUAL WAY. NORMALLY, THE CONGRESS IDENTIFIES A
PROBLEM AND ITS COMMITTEES INVESTIGATE AND STUDY
THE PROBLEM: THEN, LEGISLATION DESIGNED TO ADDRESS
THE PROBLEM IS DRAFTED. HEARINGS ARE HELD. THE
LEGISLATION IS AMENDED, HOPEFULLY IMPROVED. THEN
THE LEGISLATION IS ENACTED.
THIS WAS NOT THE CASE WITH A GREAT DEAL OF
THE ARMY'S W REGULATORY PROGRAM, PARTICULARLY
THE MOST CONTROVERSIAL AND UNCERTAIN PARTS,
INCLUDING THE PART THAT DEALS WITH WETLANDS.
INSTEAD OF DEVELOPING IN THE USUAL WAY, THE
PROGRAM HAS RESULTED-'FROM A SERIES OF LAWSUITS,
RESULTING REGULATIONS, AND ADMINISTRATIVE INTER-
PRETATIONS AND REINTERPRETATIONS.
28
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MY POINT IS THIS: THE UNCERTAINTY AND UNUSUAL
NATURE OF THE EVOLUTION OF THIS PROGRAM CONTRIBUTE
TO ITS RIPENESS FOR REFORM.
SHORTLY AFTER ASSUMING OFFICE, THE PRESIDENT
ESTABLISHED A TASK FORCE ON REGULATORY RELIEF AND
PLACED VICE PRESIDENT BUSH IN CHARGE.
FROM THE LARGE NUMBER OF COMPLAINTS RECEIVED
ON THE CORPS OF ENGINEERS' TO REGULATORY PROGRAM
THE VICE PRESIDENT IDENTIFIED THIS PROGRAM AS
BEING AMONG THOSE MOST NEEDING REFORM. IN AUGUST
OF 1981, HE DIRECTED THE ARMY AND OMB TO REVIEW
THE CORPS' REGULATORY PROGRAM AND IDENTIFY ANY
AREAS OF REFORM THAT WERE NECESSARY. I WAS ASKED
TO HEAD THIS EFFORT.
IT WAS OBVIOUS THAT THE FRUSTRATION LEVEL
AMONG THOSE PERMIT APPLICANTS WHO HAD TO COPE WITH
THE DELAYS AND UNCERTAINTIES OF THE PROGRAM WAS
VERY HIGH AND RISING. WE SOON LEARNED WHY: FOR THE
18,000 INDIVIDUAL PERMITS THAT THE CORPS PROCESSES
ANNUALLY, THE AVERAGE PROCESSING TIME WAS 128
•
DAYS. THIS MEANS THAT IF A CITIZEN WANTED TO FILL
EVEN A SMALL PORTION ON HIS OR HER OWN PROPERTY,
THE CITIZEN COULD HAVE BEEN DELAYED FOUR MONTHS
29
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JUST TO GET A CORPS' DECISION.
FURTHERMORE, IF SOMEONE OPPOSED THE REQUEST
FOR A PERMIT, THE CITIZEN THEN JOINED RANKS WITH
THE OTHER 31 PERCENT OF THE APPLICANTS WHO HAD
SO-CALLED CONTROVERSIAL PERMITS AND THE AVERAGE
PROCESSING TIME JUMPED TO 270 DAYS, OR MORE THAN
EIGHT MONTHS. IN ADDITION TO INDIVIDUALS, A GREAT
NUMBER OF COMPLAINTS WERE RECEIVED FROM PUBLIC
AGENCIES AND PRIVATE CORPORATIONS SUFFERING COSTLY
DELAYS IN DEVELOPING NEEDED PUBLIC WORKS PROJECTS
AND PRIVATE DEVELOPMENT.
I HAVE LITTLE DOUBT THAT IF AN APPLICANT IS
FACED WITH AN EIGHT-MONTH DELAY, HE OR SHE IS
GOING TO BE VERY FRUSTRATED AND WONDER ABOUT THE
EFFECTIVENESS OF HIS GOVERNMENT. AS IF THIS ISN'T
BAD ENOUGH, IF THE PERMIT REQUIRED AN ENVIRON-
MENTAL IMPACT STATEMENT, THE CITIZEN FACED A
2^-YEAR DELAY. KEEP IN MIND THAT THE ORIGINAL GOAL
OF THE CONGRESS WAS TO HAVE PERMITS GRANTED IN
THREE MONTHS OR LESS.
PART OF THE DIFFICULTY UNDER THE W PROGRAM
WAS THE MADE-UP ELEVATION PROCESS WHICH ALLOWED
THE FINAL DECISIONS ON PERMITS TO BE FURTHER
DELAYED, OFTEN FOR YEARS, WHILE AGENCIES TRIED TO
30
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RESOLVE THEIR DIFFERENCES. THE PREVIOUS MEMORANDA
OF AGREEMENT BETWEEN FEDERAL AGENCIES ALLOWED THAT
IF A FEDERAL RESOURCE AGENCY DIDN'T LIKE ANY
ASPECT OF A DISTRICT ENGINEER'S DECISION, THE CASE
COULD BE UNILATERALLY ELEVATED TO THE DIVISION
ENGINEER FOR DECISION. THEN. IF THE AGENCY DIDN'T
UKE ANY ASPECT OF THE DIVISION ENGINEER'S
DECISION, IT COULD ELEVATE THE CASE TO THE CHIEF
OF ENGINEERS. THIS ELEVATION PROCESS COULD CONTI-
NUE, WITH ELEVATIONS TO MYSELF AND FINALLY TO THE
SECRETARY OF THE ARMY. THIS FOUR-LEVEL REVIEW
PROCESS ALONE WOULD TAKE AT LEAST 13 MONTHS BUT
OFTEN TOOK MUCH LONGER. ALTHOUGH NOT A LARGE
PERCENTAGE OF THE PERMITS WENT THROUGH THIS
ELEVATION, THE THREAT OF SUCH DELAYS WAS OFTEN
ENOUGH TO MAKE AN APPLICANT VULNERABLE TO ACCEPT-
ING CONDITIONS ON THE PERMIT - NQI BECAUSE THEY
WERE APPROPRIATE, - BUT BECAUSE THE THREAT AND
RISK OF LONG DELAYS WERE SIMPLY UNACCEPTABLE TO
HIM. I.E., A TWO-YEAR DELAY COULD RESULT IN A COST
ESCALATION WHICH COULD RENDER THE PROJECT INFEAS-
IBLE - JUST BECAUSE OF THE DELAY ITSELF,
IN AN ALREADY UNCERTAIN ECONOMIC CLIMATE, THE
DELAYS, DUPLICATED EFFORTS. INCREASED COSTS WITH-
OUT CORRESPONDING ENVIRONMENTAL BENEFITS, AND
STAGGERING PAPERWORK REQUIREMENTS CAUSED BY THIS
31
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PERMIT PROGRAM, WERE SIMPLY UNACCEPTABLE,
TO CARRY OUT THE VICE PRESIDENT'S MANDATE FOR
REFORM, WE ESTABLISHED A,WORKING GROUP TO REVIEW
THE CORPS' REGULATORY PROGRAM AND DEVELOP RECOM-
MENDATIONS FOR REFORM.
THE WORKING GROUP WAS MADE UP OF SENIOR
OFFICIALS FROM THE OFFICE OF MANAGEMENT AND
BUDGET, THE ENVIRONMENTAL PROTECTION AGENCY AND
THE DEPARTMENTS OF INTERIOR, COMMERCE AND JUSTICE.
INPUT WAS ALSO RECEIVED FROM THE DEPARTMENTS OF
AGRICULTURE AND TRANSPORTATION, AS WELL AS THE
COUNCIL ON ENVIRONMENTAL QUALITY. OUR RECOMMENDA-
TIONS WERE SENT TO THE VICE PRESIDENT IN LATE
JANUARY OF THIS YEAR.
ON MAY 7TH, THE PRESIDENTIAL TASK FORCE
APPROVED THE MAJOR ELEMENTS OF OUR PROPOSAL AND
ISSUED INSTRUCTIONS TO THE EPA, THE DEPARTMENTS.OF
INTERIOR AND COMMERCE AS WELL AS OURSELVES, TO
IMPLEMENT THE REFORM WITHIN THE NEXT SIX MONTHS. I
WOULD LIKE TO BRIEFLY RELATE THE HIGHLIGHTS OF THE
TASK FORCE DECISIONS AND WHAT WE NOW HAVE UNDERWAY
TO IMPLEMENT THEM.
FIRST, SEVERAL STEPS ARE BEING TAKEN TO
32
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REDUCE THE TIME NEEDED TO OBTAIN A DECISION ON AN
APPLICATION,
THE CORPS HAS ESTABLISHED VERY STRICT TIME
LIMITS ON ITS IN-HOUSE PROCEDURES SO THAT, APART
FROM REQUIREMENTS MANDATED BY LAW, A DECISION ON
AN APPLICATION WILL USUALLY BE FORTHCOMING WITHIN
60 DAYS FROM RECEIPT OF A COMPLETED APPLICATION.
THE CORPS WILL ALSO REVISE ITS APPLICATION PROCESS
TO INDICATE WHAT INFORMATION IS REQUIRED OF THE
APPLICANT TO INSURE THAT IN MOST CASES ALL
NECESSARY INFORMATION IS RECEIVED AT THE OUTSET
AND THAT REQUESTS FOR ADDITIONAL. INFORMATION ARE
LIMITED TO THAT WHICH IS ABSOLUTELY ESSENTIAL FOR
A COMPLETE RECORD OF DECISION, IN THE PAST THERE
HAS BEEN MUCH DELAY DUE TO ADDITIONAL INFORMATION
BEING REQUESTED,
ADDITIONALLY, AND VERY IMPORTANTLY, THIS
JULY, THE ARMY EXECUTED NEW MEMORANDA OF AGREEMENT
UNDER SECTION W(Q) WITH EPA AND THE DEPARTMENTS
OF INTERIOR AND COMMERCE, THESE REPLACED THE
PREVIOUS AGREEMENTS WHICH HAD THE LENGTHY ELEVA-
TION PROCESS I MENTIONED EARLIER,
THE FUNDAMENTAL CONCEPT IN THESE NEW AGREE-
MENTS IS THAT, TO THE EXTENT POSSIBLE, ALL PERMIT
33
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CASES WILL 3E DECIDED BY THE DISTRICT ENGINEER OF
THE CORPS, THE KEY GOAL IS TO INSURE WHAT THE LAW
REQUIRES: FULL AND TIMELY CONSIDERATION OF THE
VIEWS AND CONCERNS OF OTHER INTERESTED AGENCIES.
WHAT WE SHOULD NQI HAVE AND WHAT THE LAW DOES
NO! REQUIRE AND WHAT PRINCIPLES OF GOOD GOVERNMENT
RULE OUT ARE MULTIPLE REVIEWS, REPETITIOUS CONSID-
ERATIONS AND TIME-CONSUMING REHASHINGS.
< »
IF AN AGENCY RECOMMENDS DENIAL OF A PERMIT IT
CAN REQUEST THAT A DECISION BY THE DISTRICT
ENGINEER TO ISSUE THE PERMIT BE REVIEWED AT A
HIGHER LEVEL, BUT NOW THIS REQUEST MUST COME FROM
THE ASSISTANT SECRETARY LEVEL OF THE AGENCY TO THE
SAME LEVEL AT ARMY WHERE, IF THE REQUEST IS
APPROVED, THE LEVEL OF THIS SINGLE REVIEW IS
DESIGNATED. THIS ENTIRE PROCESS WILL REQUIRE 90 TO
120 DAYS DEPENDING ON THE LEVEL OF REVIEW. THIS
WILL BE A SIGNIFICANT IMPROVEMENT OVER THE
PREVIOUS SYSTEM WHICH OFTEN TOOK YEARS TO CON-
CLUDE,
THE SECOND ISSUE WAS A NEED TO COMPLY WITH
THE INTENT OF THE CLEAN WATER ACT THAT THE STATES
HAVE MORE AUTHORITY OVER THEIR WATERS. THE CORPS
IS PROCEEDING WITH AN EVALUATION OF EXISTING STATE
34
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PROGRAMS AND WILL THEN ISSUE GENERAL PERMITS, WITH
APPROPRIATE SAFEGUARDS, TO THOSE STATES WHOSE
PROGRAMS LARGELY DUPLICATE THE CORPS' PROGRAM,
FURTHER, EPA WILL BE AMENDING ITS REGULATIONS
REGARDING STATE ASSUMPTION OF THE SECTION 404
PROGRAM TO PROVIDE INCREASED INCENTIVES AND
SIMPLIFIED PROCEDURES AND TO REDUCE THE FEDERAL
OVERSIGHT ONCE THE STATE HAS ASSUMED THE PROGRAM.
THE CORPS WILL NOT "SECOND GUESS" THE
DECISIONS MADE BY STATE AND LOCAL GOVERNMENTS ON
SUCH MATTERS AS ZONING AND LAND USE UNLESS THERE
ARE CONSIDERATIONS OF OVERRIDING NATIONAL IMPORT-
ANCE.
THIRD, WE KNOW THAT THE PRACTICE OF USING
GENERAL PERMITS (OR. PERMITTING WHOLE CLASSES OF
ACTIVITIES SO THAT INDIVIDUAL PERMITS ARE NOT
REQUIRED) IS LESS BURDENSOME ON THE PUBLIC. THE
CORPS IS EXPANDING THE USE OF THESE GENERAL
PERMITS BOTH TO MINIMIZE DELAY AND PAPERWORK AND
TO ELIMINATE DUPLICATION WITH OTHER FEDERAL
PROGRAMS. FURTHERMORE, THE CONCEPT OF A STATE OR
REGIONAL GENERAL PERMIT WHICH I ALREADY MENTIONED,
RECOGNIZES THE STATES' ONGOING EFFORTS TO PROTECT
THEIR ENVIRONMENT.
35
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THE FINAL ISSUE AND PERHAPS THE THORNIEST IS
THE JURISDICTIONAL QUESTION. THE TASK FORCE FOUND
THAT, ALTHOUGH THE JURISDICTIONAL SCOPE IS UNCER-
TAIN, IT DOES NQI BY ANY MEANS ENCOMPASS ALL
BIOLOGICAL WETLANDS. THE CORPS WILL ATTEMPT TO
REDEFINE THE SCOPE OF THE PROGRAM IN ORDER TO
INTRODUCE A DEGREE OF CERTAINTY INTO THE EXTENT OF
JURISDICTION AND TO MAINTAIN ESSENTIAL PROTECTION
OF THE CHEMICAL, PHYSICAL AND BIOLOGICAL INTEGRITY
OF THE NATION'S WATERS. WE VIEW THIS AS A MANDATE
TO REORIENT THE SECTION 404 PROGRAM TOWARD WATER
QUALITY AS INTENDED IN THE CLEAN WATER ACT.
UNFORTUNATELY, MANY HAVE BEEN VIEWING THE 404
PROGRAM AS ONE WHICH IS DESIGNED TO PROTECT THE
NATION'S WETLANDS REGARDLESS OF WHETHER WATER
QUALITY IS INVOLVED.
I MUST REEMPHASIZE THAT THE PRIMARY INTENT OF
THE CLEAN WATER ACT, INCLUDING THE SECTION 404
PROVISION, WAS FOR THE PROTECTION OF WATER
QUALITY. THE 1972 FEDERAL WATER POLLUTION CONTROL
ACT AMENDMENTS MADE NO MENTION OF WETLANDS. AS
NOTED EARLIER, THE CORPS' INVOLVEMENT IN WETLANDS
ONLY CAME ABOUT THROUGH COURT RULINGS AND SUBSE-
QUENT REGULATIONS.
36
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IT is IMPORTANT TO POINT OUT THAT WETLANDS
CAN BE DESTROYED IN A NUMBER OF WAYS WITHOUT ANY
REQUIREMENT FOR A CORPS' PERMIT. THEY CAN BE
DESTROYED BY EXCAVATING,, DRAINING, FLOODING,
CLEARING OR EVEN SHADING WITHOUT THE NEED FOR A
CORPS' PERMIT, AS LONG AS THOSE ACTIVITIES DO NOT
INCLUDE THE DISCHARGE OF DREDGED OR FILL MATERIAL.
SINCE THERE HAS BEEN MUCH CONTROVERSY OVER
THE STATISTICS CONCERNING THE RELATIONSHIP OF THE
CORPS' PROGRAM IN PRESERVING WETLANDS, I HAVE
ASKED THE CORPS TO DEVELOP THE FIGURES WHICH WILL
PLACE IN PERSPECTIVE THE ROLE OF THE « PROGRAM
IN THE OVERALL AMOUNT COVERED BY LOSS OF WETLANDS.
THE PRELIMINARY RESULTS INDICATE THAT THE WETLANDS
INVOLVED UNDER THE CORPS' PERMIT PROGRAM ARE A
VERY SMALL PART OF THE TOTAL ACREAGE OF WETLANDS
IN THE UNITED STATES,
FOR EXAMPLE, OUR PRELIMINARY FIGURES SHOW
THAT IN OUR NORTH ATLANTIC DIVISION WHICH COVERS
THE EASTERN SEABOARD ABOVE NORFOLK, VIRGINIA,
THERE ARE SLIGHTLY MORE THAN TWO MILLION ACRES OF
WETLANDS THAT MIGHT BE UNDER THE CORPS' JURISDIC-
TION. KEEPING IN MIND THAT 98% OF THE APPLICATIONS
HAVE BEEN GRANTED IN THE PAST TEN YEARS, AT THE
PRESENT RATE AT WHICH THE CORPS IS AUTHORIZING
37
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FILLING, LESS THAN TWO PERCENT OF THESE WETLANDS
WOULD BE FILLED DURING THE NEXT 100 YEARS. SIMI-
LARLY, WITHIN THE JACKSONVILLE DISTRICT, IN THE
NEXT ONE HUNDRED YEARS ONLY 1,4 PERCENT OF THE
WETLANDS UNDER THE CORPS' JURISDICTION MIGHT BE
FILLED AS A RESULT OF CORPS' PERMITS.
SO, IT IS CLEAR THAT SECTION W DOES NOT
SERVE AS THE NATION'S COMPREHENSIVE WETLANDS
PROTECTION LAW, AS LAUDABLE AN OBJECTIVE AS THAT
MAY BE. LET ME EMPHASIZE THAT I RECOGNIZE THE
IMPORTANCE OF WETLANDS. WE BELIEVE THAT IF THE
NATION AND ITS ELECTED OFFICIALS TRULY DESIRE
PROTECTION OF WETLANDS, LEGISLATION SHOULD BE
CONSIDERED FOR THE STATED PURPOSE OF PROTECTING
THE IMPORTANT WETLANDS, SIMILAR PERHAPS TO THE
APPROACH USED TO PROTECT THE WILD AND SCENIC
RIVERS.
THAT BRIEFLY SUMS UP OUR CHARTER FROM THE
PRESIDENTIAL TASK FORCE AND HOW WE ARE ACTING ON
EACH ELEMENT. WE INTEND TO ACCOMPLISH AS MUCH OF
THIS AS WE CAN BY ADMINISTRATIVE AND REGULATORY
CHANGES. AT THE END OF THIS YEAR, WE WILL EVALUATE
OUR PROGRESS IN ACH-lEVING LASTING, MEANINGFUL
REFORMS THROUGH THESE MEANS, AND WHETHER WE HAVE
BEEN SUCCESSFUL.
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LOOKING IMMEDIATELY AHEAD, ON AUGUST 23RD,
THE EPA PUBLISHED AN ADVANCE NOTICE OF PROPOSED
RULEMAKING AS THEY PREPARE TO PUBLISH NEW GUIDE-
LINES UNDER SECTION WKsMl). THE NEW GUIDELINES
WILL SHORTEN AND SIMPLIFY THE EXISTING ONES WHICH
ARE TOO COMPLEX, INFLEXIBLE, AND REDUNDANT AND WE
WILL BE WORKING WITH EPA IN THIS EFFORT.
IN ANOTHER RECENT MOVE, WE PUBLISHED, ON JULY
22, NEW INTERIM FINAL RULES ON REGULATIONS WHICH
HAD BEEN ORIGINALLY PROPOSED IN SEPTEMBER OF 1980.
THEY PROVIDE A DEGREE OF RELIEF TO THE REGULATED
PUBLIC AND ALLOW FOR FURTHER COMMENT BY INTERESTED
PARTIES BUT THEY DO NOT FULLY IMPLEMENT THE
CHARTER OF THE TASK FORCE.
WHILE THESE NEW REGULATIONS INCLUDE SEVERAL
HUNDRED ACTUAL CHANGES, MOST OF THEM ARE MINOR
"HOUSEKEEPING" CHANGES. INCLUDED, HOWEVER, ARE TWO
MORE IMPORTANT CHANGES WHICH PROVIDE MOST OF THE
REGULATORY RELIEF. THESE CHANGES ARE (1) REQUIRING
MOST PERMIT DECISIONS TO BE MADE IN SIXTY DAYS,
AND (2) EXPANDING THE NATIONWIDE PERMIT PROGRAM BY
ADDING FIFTEEN NEW fERMITS FOR VARIOUS MINOR
ACTIVITIES AND CHANGING THE SCOPE OF OTHERS.
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I WOULD LIKE TO RESPOND TO SOME OF THE
QUESTIONS WHICH HAVE BEEN RAISED AGAINST THESE
INTERIM REGULATIONS.
THERE HAVE BEEN CLAIMS THAT THE EXPANDED USE
OF NATIONWIDE PERMITS IS IMPROPER. TO PLACE THIS
COMMENT IN PERSPECTIVE, NEARLY TWO-THIRDS OF ALL
PERMIT APPLICATIONS RECEIVE NO COMMENTS AND ARE
ROUTINELY GRANTED. IT MAKES GOOD MANAGEMENT SENSE
NOT TO PUT A GREAT ADMINISTRATIVE EFFORT INTO
THOSE WHICH ARE ROUTINE. IN ADDITION, A NATIONWIDE
PERMIT IS NQI AN EXEMPTION FROM REGULATION AS SOME
CLAIM. IT IS A LESS INTENSIVE FORM OF REGULATION.
WE FEEL THAT THE NATION IS BEST SERVED BY FOCUSING
OUR REGULATORY EFFORTS ON THOSE APPLICATIONS WITH
SIGNIFICANT ENVIRONMENTAL CONSEQUENCES RATHER THAN
FRITTERING IT AWAY ON PROCESSING MANY CASES WHERE
THERE ARE NO OBJECTIONS. THE NATIONWIDE AND
REGIONAL GENERAL PERMITS PLAY A MAJOR. ROLE IN
ALLOWING US TO DO THIS.
CORPS RESOURCES WHICH ARE FREED FROM THE
UNNECESSARY PROCESSING OF INDIVIDUAL PERMITS CAN
BE DIVERTED TO QUALITY MANAGEMENT AND CONTROL OF
THE MORE SIGNIFICANT*WATER RESOURCES ACTIVITIES.
FURTHER, THE ENVIRONMENTAL ENFORCEMENT AND SUR-
VEILLANCE PROGRAMS CAN BE SHORED UP WITH THESE
40
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FREED RESOURCES.
THE SECOND MAJOR CONCERN WHICH HAS BEEN
EXPRESSED ON THE INTERIM REGULATIONS IS RELATED TO
EXPANDING THE GENERAL PERMITS FOR ACTIVITIES IN
CERTAIN WATERS TO INCLUDE LAKES LARGER THAN TEN
ACRES. THE PROPOSAL IS NOT AS EXPANSIVE AS IT MAY
SEEM. IT EXTENDS COVERAGE ONLY TO NATURAL LAKES
ABOVE THE HEADWATERS. WETLANDS AND MAN-MADE LAKES,
INCLUDING THOSE OF GREATER THAN TEN ACRES IN SIZE,
HAVE BEEN COVERED ABOVE THE HEADWARTERS BY A
NATIONWIDE PERMIT SINCE 1977. FURTHERMORE, SAFE-
GUARDS WHICH I WILL DESCRIBE LATER WE BELIEVE ARE
BUILT INTO THE NATIONWIDE PERMITS.
AN INTERDISCIPLINARY TASK GROUP OF 20 OF THE
CORPS' MOST SEASONED REGULATORY PERSONNEL JUDGED
THAT INTEREST FROM THE PUBLIC AND OTHER AGENCIES
IN THESE TEN-ACRE LAKE AREAS WAS RELATIVELY MINOR
DURING THE PAST FIVE YEARS AND DID NOT SUPPORT A
CONTINUATION OF CASE-BY-CASE EVALUATIONS.
ADDITIONALLY, IN ALL THE COMMENTS RECEIVED,
NO ONE WAS ABLE TO SPECIFY ANY PROBABLE DAMAGE
WHICH WOULD RESULT ''FROM THE INCLUSION IN THE
NATIONWIDE PERMIT OF LAKES GREATER THAN TEN ACRES.
-------
IN THIS CONNECTION, THE CORPS DID AN ENVIRON-
MENTAL ASSESSMENT AND A TO(B)(1) EVALUATION WHICH
INDICATED NO SIGNIFICANT RISK TO THE RESOURCES
INVOLVED.
THE CORPS WILL REVIEW THESE NATIONWIDE
PERMITS EVERY FIVE YEARS AND IS IMPLEMENTING A
DATA COLLECTION SYSTEM SO THAT THERE WILL BE A
GREATER DATA BASE FOR FUTURE ANALYSES.
A THIRD CONCERN ABOUT THE INTERIM FINAL
REGULATIONS IS THAT THE NATIONWIDE PERMITS DO NOT
COMPLY WITH SECTION W(E) OF THE CLEAN WATER ACT
WHICH REQUIRES THAT ACTIVITIES BE SIMILAR AND HAVE
MINOR INDIVIDUAL AND CUMULATIVE IMPACTS.
WE BELIEVE WE HAVE BEEN VERY CAUTIOUS IN
INSURING SUCH COMPLIANCE. GENERAL PERMITS BY THEIR
VERY NATURE MUST BE TREATED IN GENERAL TERMS. WE
HAVE TRIED TO STRUCTURE THESE PERMITS AND THEIR
POTENTIAL ENVIRONMENTAL IMPACTS IN A REASONABLE
MANNER TO COVER TRULY MINIMAL SITUATIONS IN THE
FIELD. HOWEVER, WE DO RECOGNIZE THAT INFREQUENT
SITUATIONS CAN ARISE WHERE THE NATIONWIDE PERMIT
CONDITIONS MAY NOT PROVIDE THE DEGREE OF REGULA-
TION NECESSARY TO PROTECT THE INTEGRITY OF THE
NATION'S HATERS AND SO CERTAIN SAFEGUARDS ARE
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NEEDED,
TO DEAL WITH SPECIFIC SITUATIONS, WE HAVE
PROVIDED REGIONAL CONDITIONING AND DISCRETIONARY
AUTHORITY WHEREBY NATIONWIDE PERMITS CAN BE
MODIFIED ON A REGIONAL BASIS OR CAN BE OVERRIDDEN
ALTOGETHER AND INDIVIDUAL PROJECT REVIEW REQUIRED
IN CERTAIN INSTANCES.
FURTHER, THERE ARE CONDITIONS IN THE PERMITS
WHICH REQUIRE THAT THE DISCHARGED MATERIAL BE FREE
FROM TOXIC POLLUTANTS; THAT THE ACTIVITY HAVE NO
EFFECT ON ENDANGERED SPECIES AND WILD AND SCENIC
RIVERS; THAT THE DISCHARGE INTO WATERS AND
WETLANDS BE AVOIDED OR MINIMIZED; AND THAT
DISCHARGES INTO SPAWNING AND BREEDING AREAS BE
AVOIDED, TO NAME BUT A FEW OF THE CONDITIONS, WE
ARE HOPEFUL THAT THESE CONDITIONS PROVIDE SUFFI-
CIENT PROTECTION TO OUR NATURAL RESOURCES AND
ASSURE THAT WHATEVER IMPACTS MIGHT OCCUR, ARE
MINIMAL,
THE NATIONWIDE PERMIT PROGRAM, INCLUDING THE
PERMIT FOR DISCHARGES INTO CERTAIN WATERS, HAS
BEEN IN EFFECT SINCE''BEFORE THE LAST AMENDMENTS TO
SECTION m IN 1977. IT HAS THE OVERWHELMING
SUPPORT OF THE COMMENTING PUBLIC, AND IS CHARAC-
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TERIZED IN THE PUBLIC RECORD BY A COMPLETE ABSENCE
OF ANY SPECIFIED ADVERSE IMPACTS WHICH HAVE
RESULTED OR MAY RESULT FROM THIS PROGRAM.
ADDITIONALLY, IN THE 1977 AMENDMENTS TO THE
CLEAN WATER ACT, CONGRESS INCLUDED A PROVISION
ALLOWING FOR THE ISSUANCE OF GENERAL PERMITS, THE
LANGUAGE USED BY THE CONGRESS WAS TAKEN NEARLY
VERBATIM FROM THE THEN-EXISTING CORPS' m REGULA-
TIONS, IN GENERAL, CONGRESS INDICATED ITS FAVOR-
ABLE DISPOSITION TOWARD THE INCREASED USE OF THIS
PRACTICE. WE CAN REVISE AS EXPERIENCE MAY DICTATE,
A FOURTH CONCERN IS THAT THE GOVERNMENT
EFFICIENCY GENERAL PERMITS AIMED AT STRONG STATE
PROGRAMS, ARE INAPPROPRIATE,
THE CORPS' REGULATIONS RECOGNIZE THAT IN A
NUMBER OF STATES THERE ARE ON-GOING STATE AND
LOCAL REGULATORY PROGRAMS WHICH LARGELY DUPLICATE
THE CORPS' PROGRAM. WE REFER TO THE GENERAL
PERMITS WHICH REDUCE THIS DUPLICATION AS "GOVERN-
MENT EFFICIENCY GENERAL PERMITS." WE HAVE FOUND
THAT FOR THOSE INSTANCES WHERE ACTIVITIES ARE
ALREADY BEING REGULATED BY OTHERS, THE REDUCTION
IN DUPLICATION CAN ALSO GENERATE SIGNIFICANT
SAVINGS, ONE ESTIMATE FINDS THAT THE AVERAGE COST
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OF PROCESSING A SINGLE INDIVIDUAL PERMIT IS
$2,500. DUPLICATING THIS COST AT TWO OR MORE
LEVELS OF GOVERNMENT IS SIMPLY NOT GOOD GOVERN-
MENT.
I BELIEVE THAT PROGRAMS WHICH COMPLEMENT, NOT
DUPLICATE, ONE ANOTHER WILL NOT ONLY SAVE TIME,
MONEY AND REDUCE PAPERWORK BUT WILL HELP RESTORE
FAITH IN GOVERNMENT AND FOSTER A BETTER PARTNER-
SHIP AMONG LOCAL, STATE, AND FEDERAL WATER
RESOURCES PROTECTION AGENCIES.
OUR EXPERIENCE IN NORTH CAROLINA, FOR EX-
AMPLE, IS THAT A WELL-STRUCTURED GENERAL PERMIT
WITH APPROPRIATE SAFEGUARDS IS ACCEPTABLE TO ALL
CONCERNED PARTIES AND AVOIDS DUPLICATION OF
EFFORT.
FINALLY, IN OUR EFFORTS TO TRIM PROCESSING
TIMES, SOME CORPS' DISTRICTS BEGAN TO CUT BACK THE
PUBLIC COMMENT PERIOD IN A BROADER WAY THAN WE
INTENDED. THERE HAVE BEEN A NUMBER OF COMPLAINTS
THAT THIS DOES NOT, IN SOME CASES, ALLOW ENOUGH
TIME TO PROVIDE SUBSTANTIVE COMMENTS. OTHERS
COMPLAIN THAT THESE TIME PERIODS ARE EXCESSIVE.
WE GENERALLY BELIEVE THAT A 30-DAY COMMENT
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PERIOD IS APPROPRIATE. THE CORPS HAS ISSUED
INTERNAL GUIDANCE THAT THE COMMENT PERIOD WILL
NORMALLY BE 30 DAYS BUT THE DISTRICT ENGINEER MAY
MODIFY IT IN THOSE CASES WHERE WARRANTED.
I MUST ADMIT TO BEING CONCERNED ABOUT THE
RESISTANCE WE SEEM TO BE GETTING AT EVERY STEP.
THERE ARE THOSE WAITING IN THE WINGS WHO HAVE
URGED US ALL ALONG TO SEEK LEGISLATIVE SOLUTIONS.
TO ILLUSTRATE THIS POINT, THERE HAVE BEEIM8 BILLS
INTRODUCED IN THE PAST FOUR CONGRESSES TO AMEND
THE SECTION 404 PROGRAM. WE HAVE OPTED, HOWEVER,
TO TRY THE ADMINISTRATIVE APPROACH FIRST. WE
BELIEVE THAT WE CAN DO A BETTER JOB, WORKING WITH
OTHER AGENCIES.
ON THE JULY 22ND INTERIM FINAL REGULATIONS
MOST PEOPLE REGARD THEM AS RELATIVELY MILD
REFORMS. HOWEVER, WE HAVE ALREADY RECEIVED TWO
NOTICES OF INTENT TO SUE UNDER SECTION 505 OF THE
CLEAN WATER ACT.
WE ARE DISAPPOINTED IN THIS SEEMINGLY "KNEE-
JERK" OPPOSITION AND ALL-TOO-FAMILIAR LITIGATION.
WE ARE COMMITTED AND HAVE BEEN COMMITTED THROUGH-
OUT OUR REFORM EFFORT TO MAKING USE OF REASONABLE
ADMINISTRATIVE CHANGES RATHER THAN GOING FIRST TO
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THE LEGISLATIVE APPROACH. WE MAY, HOWEVER, FIND
OURSELVES BEING PUSHED WHETHER WE LIKE IT OR NOT
TO SEEK A LEGISLATIVE REMEDY.
WE MUST ACHIEVE A REGULATORY PROGRAM THAT
PROVIDES A BALANCED APPROACH TO ENVIRONMENTAL
PROTECTION AND WATER RESOURCES UTILIZATION IN THIS
COUNTRY. WE INVITE YOUR SUPPORT AND PARTICIPATION
AS WE MOVE FORWARD IN THIS IMPORTANT TASK.
IN CLOSING, LET ME RESTATE THAT THERE ARE
VERY SERIOUS PROBLEMS WITH THE SECTION TO PROGRAM
AND RELATED PROGRAMS. THESE PROBLEMS ARE NOT GOING
TO GO AWAY WITHOUT TRUE AND LASTING REFORMS. I AM
SPEAKING OF REFORMS THAT WILL PROVIDE DECISIONS ON
APPLICATIONS IN A REASONABLE TIME AND AT REASON-
ABLE EXPENSE, BUT WILL DO SO IN A WAY THAT
PROTECTS THE IMPORTANT ENVIRONMENTAL CONCERNS AT
THE SAME TIME.
THANK YOU FOR THE OPPORTUNITY TO BE WITH YOU
AND I'LL BE PLEASED TO ANSWER ANY QUESTIONS YOU
MAY HAVE.
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QUESTIONS FROM THE AUDIENCE FOLLOWING MR. GIANELLI'S PRESENTATION:
Mr. Gianelli:
Question: Will the current jurisdiction of the Section 404
program be markedly changed under the new regulations?
Answer: The jurisdiction question is one of the
thorniest issues that we have to face. We will continue to have
dialogue with other agencies on the question; but, ultimately, I
believe this question will have to be resolved by Congress.
Question; How do you perceive regulatory reform as affecting
the water quality problem of the people of Thibodaux Parrish,
Louisiana? A coastal area with extensive oil exploration,
agricultural-related dredging, and salt water intrusion.
Answer; There are a lot of factors that affect the quality
of the waters of the United States. The 404 program hits only an
infinitesimally small part of the problem. In coastal areas, as
you said, you have the additional problem of salt water intrusion
You cannot regulate oceans very well; they are going to do their
thing regardless. For example, for a project where a 404 permit
is required, if our review indicates that by granting the 404
permit the project will increase salt water intrusion, the Corps
should consider this impact in its decision on the permit. But
there is a limit on what you can do in correcting salt water intru-
sion in coastal areas through the 404 program. In my opinion,
non-point sources which are not regulated have a much larger
impact. But the point here is to keep in mind what the 404
program can and cannot do in respect to protecting the nation's
water quality; we are limited.
Question; Have individual State coastal agencies had input
into the new regulations?
Answer; We gave very close consideration to the views
of coastal management agencies in developing our new regulations.
I think we have coordinated with them.
Question; Inaudible.
Answer; LTC Dave Peixotto - Inaudible.
Question; Will you comment on the new 30-day comment period
required by the regulations?
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Answer; One of the things we hope will come about under
our new program is that you won't have to wait to get an official
notice before the 30-day comment period starts. We think that with
closer coordination between Corps Districts and resource agencies,
you won't be hit with new permits without advanced information.
Hopefully, some of this advance information can replace some of
the lost time in the 404 permit process. On the other hand, we
are trying to have a program which, as the Congress made quite
clear, should receive Federal action within a 90-day period.
Obviously, you can't proceed on the more controversial 404 permit
applications without some early dialogue.
Question; What about large controversial projects that
would otherwise fall under the nationwide permit?
Answer; We envision that most controversial projects
will be withdrawn from the nationwide process and go through the
normal permit process if a resource agency has serious problems
with the project. Again, we believe this approach will conserve
Corps' resources, allowing us to focus our resources on the
important projects.
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THE FEDERAL GOVERNMENT'S EFFORT TO
DISMANTLE THE CLEAN WATER ACT 404 PROGRAM-
THE COUNTEROFFENSIVE BEGINS
JAMES T.B. TRIPP, SENIOR ATTORNEY
ENVIRONMENTAL DEFENSE FUND
NEW YORT? NEW YORK
The Department of the Army has initiated two broad efforts
which have implications for federal efforts to maintain and
restore the integrity of the Nation's waters under the Clean
Water Act, 33 U.S.C. Section 1251, and other federal statutes.
The first is an important effort to reform the economics and
funding of federal water resource projects. The logic of this
reform is that these water projects should be subject to a market
test and that local funding, private investment and user fee
requirements can provide initial screening for the wisdom of a
water project far better than conventional Corps of Engineer
benefit/cost analyses. This reform has implications for Section
404 of the Clean Water Act because 404 has unfortunately, from a
political point of view, been subject to political overload in
the evaluation of federal water projects that would never meet a
market test and never should have been built purely on economic
grounds.
The other initiative in salient measure runs counter to the
objective of the Clean Water Act in that the Administration in
Washington, B.C. is engaged in a process which is seriously
weakening the substantive protection of the Clean Water Act
Section 404 program. One can support in many respects the effort
to reform the procedural review process of that program. Indeed,
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if the goal of the procedural reform effort were intended to make
decision-making more efficient 'and speeded up we would expect
that many permits would be denied much more expeditiously than
they are. Federal agencies waste valuable resources when they
spend months on intensive review of certain permit applications
when the Corps of Engineers should expeditiously deny them for
non-compliance with the 404(b) guidelines, 40 C.F.R. Part 230.
Regrettably the reform of 404 procedures underway is proceeding
on the assumption that permits should be issued (not denied) more
expeditiously simply because the reform effort is aimed at making
the 404 program more palatable to some by weakening its
substantive protection mechanisms.
1. Wetlands and water quality
Our concern for wetlands in the context of the Clean Water
Act stems from the importance of wetlands for the integrity of
the quality of the Nation's waters. The objective of the Clean
Water Act, as set out in Section 101(a), 33 U.S.C. Section
1251(a), is to restore and maintain the chemical, physical, and
the biological integrity of the Nation's waters. The Clean Water
Act is not restricted to chemical integrity, but physical and
biological integrity, of the Nation's waters as well. It would
be impossible to achieve that worthy objective, which Congress
established in October 1972, if the Nation's wetlands, which are
so vital to the biological and physical, as well as chemical,
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integrity of the Nation's waters, are not afforded regulatory
protection.
Furthermore, wetland protection is a cost-effective
preventive approach to protecting, maintaining, and restoring the
physical, chemical, and biological integrity of the Nation's
waters. The Nation's wetlands, whether coastal or inland,
estuarine or freshwater, immediately adjacent to major interstate
rivers or isolated, play vital roles in water chemistry, water
biology, and the physical well-being of the Nation's waters.
These water quality functions include transformation of inorganic
into organic nutrients, production of dissolved and particulate
organic detrital matter, entrapment of sediments, control of soil
erosion, rapid metabolism of biodegradable toxics compounds,
moderation of water flows and a large number of other chemical
and biological transformation. These wetlands perfonn these
complex water quality roles, so to speak, free of charge. Where
wetlands are protected, the Nation does not have to spend tens of
billions of dollars on huge advance treatment plants in an effort
to compensate for their loss.
2. Scope of federal 404 jurisdiction
Some claim that Congress did not intend through the Clean
Water Act to protect our Nation's wetlands. Evidence in support
of this assertion is that the word "wetlands" is not used in the
body of the Clean Water Act. Yet, this view is not supported by
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the legislative history, judicial decisions and the Act itself.
Based on use of the term "-navigable waters" in the Act, the
Corps of Engineers, following the Act's enactment in 1972,
initially interpreted its Section 404 jurisdiction to be
commensurate with its jurisdiction under the 1899 Rivers and
Harbors Act, 33 U.S.C. Section 401. Yet in Section 502(7) of the
Clean Water Act, 33 U.S.C. Section 1352(7), Congress stated
explicitly that the term "navigable waters", which is the term
used in Section 404 of the Act, means all "waters of the United
States including the territorial seas." Thus, it should be very
clear that Congress intended federal jurisdiction to extend far
beyond the traditional "navigable waters of the United States,"
the scope of federal jurisdiction in the 1899 Rivers and Harbors
Act, 33 U.S.C. Section 401. In addition, the Senate Report which
led to the 1977 Amendments- states:1
There is no question that the systematic destruction
of the Nation's wetlands is causing serious permanent
ecological damage. The wetlands and bays, estuaries and
deltas, are the Nation's most biologically active areas.
They represent a principal source of food supply.
The unregulated destruction of these areas is
a matter which needs to be corrected and which
implementation of Section 404 has attempted to achieve.
It should be evident that the Congress was fully aware that the
jurisdiction of the Act extends to the Nation's wetlands.
Clearly the courts have repeatedly said that the Act is
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intended to cover the Nation's wetlands. Most recently, the U.S.
Court of Claims, held in the Deltona v. United States, 657 F. 2d
1184, 1187 (D.C. Cir. 1981), cert, denied, U.S. , 102 S.
Ct. 1712 (1982), that "a basic policy of the FWPCA (Clean Water
Act) is the protection of our Nation's wetlands and the important
functions which they serve," quoting Avoyelles Sportsmen's League
v. Alexander, 473 F. Supp. 525, 533 (W.D. La. 1979).2 Although
some seem to discount judicial opinion on the grounds that the
federal courts are not to be trusted, the U.S. Constitution does
recognize the federal judiciary as an independent branch of the
U.S. Government.
Although Congress did not use the word "wetlands" in
the text of the Clean 'Water Act, it did state clearly in numerous
places in the Act, including in the goal section of the Act,
Section 101(a)(2), 33 U.S.C. Section 1215(a)(2), that the Act is
intended to assure water quality which provides for the
protection and propagation of fish, shellfish, and wildlife, and
provides for recreation in water. Where does the propagation and
protection of much of our fish, shellfish, and wildlife dependent
on aquatic organisms for food take place? Where ere organic
matter and aquatic organisms which feed on that detrital matter
and are a source of food for fish, shellfish and
aquatic-dependent wildlife produced? These vital activities take
place in the wetlands of the United States as well as in many of
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its shallow estuarine and riverine areas. These are the spawning
and nursery areas that Congress*clearly had in mind. These
aquatic water quality functions, which are also identified
expressly in Section 404(c) of the Act, 33 U.S.C. Section
1344 (c) , are a litmus test that one can hold up to determine what
Congress intended to be the scope of federal jurisdiction over
the waters of the United States. Major wetland systems are
important as fish spawning and nursery areas or as
aquatic-dependent wildlife wintering, breeding and feeding
habitats because they play a major role in the biological,
chemical and physical integrity of the Nation's waters. They
therefore function as an integral part of the waters of the
United States for purposes of the Clean Water Act.
If we ask these questions about water quality functions, we
can develop a concept of the appropriate scope of federal
jurisdiction, because, undeniably, in terms of these aquatic
functions, wetlands have a clear link to interstate commerce.
One example of a wetland system which exhibits these links are
the bottomland hardwood wetlands of the lower Mississippi River
Valley. 'In a Section 404 case, sometimes known as the Lake
Ophelia case, formally designated Avoyelles Sportsmen's League et
al. v. Alexander, et al., 473 F. Supp. 575 (E.D. La. 1979) and
511 F. Supp. 278 (W. D. La. 1981), on appeal No. 79-2653 and
82-3231 (5th Cir.) a federal court in the Western District of
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Louisiana held that some 18,000 acres of a 20,000 acre tract of
bottomland hardwoods in the backwater area of the Red River in
Avoyelles Parish, Louisiana, were wetlands and part of the waters
of the United States. The Corps of Engineers had initially held
that only some 30% of the tract, primarily the cypress sloughs
and immediately contiguous areas, was a wetland. Under court
order, EPA, supported by a six-man scientific team, concluded
that some 80% of the tract met the wetland criteria of 33 C.F.R.
Section 323.2(c) and the EPA 404(b) guidelines, 40 C.F.R. Part
230. The Final Wetland Determination which the federal
defendants prepared in that case pursuant to the federal court
order adopted the EPA position. Following a two-week trial, at
which a large number of expert hydrologists, botanists, soil
scientists and ecologists testified, the federal court found that
some 90% of the tract was a wetland and part of the waters of the
United States.
It would be fair to characterize this decision as
controversial. Indeed, the Corps of Engineers has been unwilling
to apply the district court's two holdings outside the Western
District of Louisiana, although EPA has made some bottomland
hardwood wetland determinations elsewhere in the South generally
in a manner consistent with the decision of 511 F. Supp. 278
(W.D. La. 1981). Did Congress intend 90% of the Lake Ophelia
bottomland hardwood tract to be included as part of the waters of
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the United States? If we apply our litmus test to assess the
reasonableness of this jur isdic*tional holding, we should consider
certain basic ecological facts. The Lake Ophelia tract is part
of the 160,000 acre Bayou Natchitoches Basin, part of the Red
River backwater or overflow area. During high water periods,
typically in the late winter and spring, when Mississippi River
and Atchafalaya River stages are high, the Red River cannot
discharge into the Atchafalaya. At such times, Red River waters
back up into areas like the Bayou Natchitoches Basin. During
periods of such back water flooding, many species of riverine
fish migrate into these shallow warm overfed areas to spawn.
Since they are rich in aquatic foods, they serve as highly
productive fish spawning and nursery habitats.
In April 1979, at the time of the first hearing in the
Avoyelles Sportsmen's League case, the waters of the Red River
backed up into the Basin and inundated the Lake Ophelia tract to
elevation 49 or 5O feet and therefore flooded almost 90% of the
tract, almost co-terminus with the area that the federal court
subsequently found to be a wetland. During that high water
period in the Spring of 1979, a biologist from the U.S. Fish and
Wildlife Service traversed the tract in a boat and took samples
of fish larvae, post-larvae and juveniles on the tract up to
elevation 47 to 48 feet. This sampling program estabished in a
field test what omnipresent vegetation, soils and hydrologic
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indicators evident on the tract bear witness to that the
tract functions as an important and vital fish spawning and
nursery area for the Red River fisheries. Further, because
aquatic organisms abound on the tract in pools of water resulting
from precipitation or flooding, the tract serves as a breeding
and wintering habitat for many species of ducks and other species
of wildlife dependent on those aquatic organisms for food.
Thus, based on our litmus test which defines waters of the
United States in terms of Clean Water Act aquatic and water
quality functions which Congress explicitly addressed in Section
I01(a)(2) of the Act, the district court's delineation of
wetlands based on vegetation, soils and hydrologic factors
incorporated in the definitions of the wetland term at 33 C.F.R.
Section 323.2(c) is eminently reasonable, and the Corps' initial
determination falls far short of the mark. This litmus test is a
fair and reasonable measure of the appropriate scope of federal
jurisdiction reflected in the Clean Water Act statutory term
"waters of the United States."
3. Significance of infrequently inundated or
saturated wetlands for Clean Water Act water
quality functions
It is claimed by some that, while some wetlands are
admittedly important, others are not important. The proverbial
example of marginal or unimportant wetlands is cattails in an
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individual homeowner's back yard. However, there is a world of
difference between the statement that Congress did not intend to
t
regulate fill activities by suburban homeowners who want to fill
a few square meters of cattails in their back yards and the
assertion that Congress did not intend to assert jurisdiction
over bottomland hardwood wetlands which function as fish and
wildlife propagation and feeding areas, over the prairie pothole
wetlands in the North Central States that are so important for
wildlife breeding, over pocosin wetlands or over other types of
wetland systems which perform significant functions for in the
chemical, physical and biological quality of waters integral to
aquatic activity which Congress emphasized in the Clean Water
Act.
It is also important to point out that scientific research
throughout the 1970's and continuing today is steadily
demonstrating that wetland systems that are inundated or
saturated by rain, flooding or tides on an infrequent or
intermittent basis play biologically critical roles in terms of
chemical, physical and biological water quality and therefore
aquatic functions. One example of an estuarine wetland system
with frequently and infrequently inundated components are
mangrove swamps. In the early 1970's, prevailing scientific
research had unquestionably established that red mangrove
communities which are diurnally inundated are important and
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productive components of the estuarine and bay systems of South
Florida. Only in the last two•to three years has scientific
research unequivocably shown that the black mangrove basin
forests, which may be tidally inundated less than 180 times in an
annual cycle, primarily during so-called spring tides, are
equally as important in terms of chemical and biological water
quality as the red mangrove communities and play a complementary
role in terms of production of organic matter which enter
estuaries in pulses of energy. Through evolution, a number of
species of fish and shellfish have timed their entry into South
Florida estuaries which function as nurseries to these pulses of
organic energy. Likewise, those areas of the bottomland hardwoods
that are infrequently inundated or saturated are more important
in many respects for fisheries and water quality than the almost
permanently inundated cypress sloughs.
4. Activities subject to 404 regulations
Some claim that 404 is not an effective tool for protecting
the nation's wetlands because it regulates only discharges of
dredge or fill material and, therefore does not regulate major
kinds of massive onslaughts on the nation's wetlands such as
clearing, excavation and drainage. This position assumes, of
course, that mechanized clearing, excavation and drainage
processes do not entail discharges of dredged and fill material
-- a position which belies logic, common sense and field
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evidence. The only court in the country which has considered
whether clearing of wetlands with mechanized equipment with a
view to their conversion to cropland constitutes discharges of
dredge and fill material found that Section 404 is intended to
regulate this process. Avoyelles Sportsmen's League v.
Alexander, 473 F. Supp. 511 (W.D. La. 1979). Further, from a
policy perspective, the Congress fully addressed this issue in
the 1977 Amendments to the Clean Water Act, specifically in
Section 404(f), 33 U.S.C. Section 1344(f).
Although Congress generally exempted from regulation
discharges associated with normal agricultural, normal
silvicultural and certain minor drainage and maintenance
activities, Congress stated very clearly in Section 404(f)(2)
that "any discharge of dredged or fill material into navigable
waters incidental to any activity having as its purpose bringing
any area of navigable waters into a use to which it was not
previously subject" where the flow or circulation would be
effected shall require a permit under Section 404 (emphasis
added). Section 404(f)(2) states emphatically that Section 404
is to regulate any discharge inc idental to a conversion activity,
That 404(f) (2) is intended to cover so-called d_e in i n i m i s
discharges is evident from the fact that it refers back to
Section 404(f)(l) which exempts from regulation discharges
associated with enumerated activities simply because those
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discharges typically have no significant impact on the integrity
of the Nation's waters.6
As a practical natter, bottomland hardwood, pocosin, prairie
pothole or other inland wetlands can not be drained or cleared in
the absence of any discharge incidental to that conversion. This
would be so even if, for argument's sake, the removal and
conveyance of wetland vegetation did not per se involve discharge
of dredged or fill material, a position which the court in
Avoyelles Sportsmen's League, 473 F. Supp. 525, rejected.
Although the Corps of Engineers takes the position that so-called
"£! !Tlinimis" discharges are exempted,7 it should be evident on
its face that Section 404(f)(2) exempts no discharges, no matter
how "de minimis, where they are incidental to wetland
conversions. Since agricultural clearing and drainage projects
probably account for 75 to 80% of wetland loss in this country,
Section 404(f)(2) should be viewed as an effective tool for
regulating such conversions by clearing, drainage or excavation
operations while on-going siIvicultural , agricultural and minor
drainage activities are not regulated.
5. Procedural efficiency of the 404 program
Many efforts to increase the efficiency of the operation of
the 404 program are on the whole commendable. Some initiatives
in this direction were instituted before 1931. Examples include
issuance of joint public notices by some Corps districts and
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state regulatory agencies and joint processing of permit
application by federal and state resource agencies in some Corps
districts. Although we have supported these kinds of procedural
reforms, the Corps districts in the Lower Mississippi Valley
Division have opposed these basic procedural reforms and, by that
refusal, have helped to undermine the credibility of the Section
404 program in the South Central states.
An example of a more far-reaching procedural modification is
the Wilmington District's January 27, 1931 general permit for
activities subject to North Carolina's Coastal Area Management
Act permit process. With some qualifications and with some
changes, the process described in that general permit might be a
step in the right direction. Since so many Corps districts are
now proposing state program general permits, general permits
which fail to meet the general permit criteria of Section 404 (e)
of the Act, 333 U.S.C. Section 1344(e), it is instructive to note
that what the Wilmington District has denominated as a general
permit should more properly be designated a "Memorandum of
Understanding" with its emphasis on a process for decision-making
between state and federal agencies. The Wilmington District
"MOU" provides that, in many circumstances, state agencies will
make a permit decision. It also provides that, at any point in
the decision-making process, however, the U.S. Fish and Wildlife
Service, National Marine Fishery Service and state resource
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agencies may seek independent federal review.
Even the Wilmington District "MOU", however, suffers from
two defects. Insofar as it does not require the Wilmington
District to institute independent federal review whenever the
Fish and Wildlife Service and National Marine Fisheries Service
request it, it runs afoul of the mandates of the Fish and
Wildlife Coordination Act, 16 U.S.C. Section 561. Although the
Wilmington District may respond favorably to all such requests,
other districts may not do likewise. Further, this MOU defines
no clear role for the public. Such a federal-state MOU should
therefore provide for independent federal review based on a
NEPA-type threshold test, including evidence of public
controversy, particularly where state law and regulations do not
require the state regulatory agency to provide for public input
and participation at a level comparable to that incorporated into
Section 404 and NEPA processes.
6. Section 404 economic review analysis
Since the Administration speaks so frequently of subjecting
federal regulatory programs to vigorous economic review analyses,
it may be asked whether the Department of the Army's regulatory
changes, in particular those respecting jurisdiction changes,
e.g., the general permits for categories of water in 33 C.F.R.
Section 330.4(a)(.l) and (2), have been subject to any kind of
benefit cost analysis. Certainly no such analysis has ever been
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released.
«
The only benefit cost analysis that has been performed on
the Corps regulatory programs, including the Section 10 and 404
programs, is a study undertaken by the Institute for Water
p
Resources of the Corps of Engineers in Fort Bellvoir, Virginia.
That study concluded that the Corps' Section 10 and 404
regulatory programs, as administered before many of the recent
regulatory jurisdictional changes, enjoyed considerable net
national economic benefits. The costs that were identified in
that analysis were primarily costs associated with delays. Since
there are many ways in which delays can be reduced and therefore
many of the costs of those delays eliminated without
concomitantly reducing the benefits of wetland protection, the
study points to strategies of maintaining the enormous benefits
of the Corps' regulatory programs at reduced administrative cost.
Regrettably, the Department of the Army made the decision that
this study should not be released in final form. Unfortunately,
some in the Department of the Army seem to view protection of
wetlands as a cost, not a benefit. However, in the context of
the Clean Water Act, increased wetland protection must be viewed
as a benefit of the Corps' regulatory programs.
It should be evident that efforts at genuine procedural
reform designed to strengthen the efficiency of administration of
the Section 404 program can be carried out independently of
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efforts to weaken the substance of the program. The fact that
the Department of the Army is making regulatory changes which do
violate the substance of the 404 program is not a necessary
corollary of procedural reforms the objective of which is
increased efficiency in the decision-making process.
7. Impact of the Section 404 program on the
national economy - alternative technologies
Some claim that the Section 404 program hurts the economy.
Surely, if one prepared a list of the Fortune 500 causes of the
economic malaise in this country the Section 404 program would
not be listed. One can think of many better ways of reducing
federal waste and therefore helping the economy. One suggestion,
of course, would be for the federal government to stop building
the Tennessee Tornbigbee Waterway.
In the long term the Section 404 program must be viewed as
having a technology-forcing function. Residential developers
have found that there are ways of building in coastal areas
without destroying wetlands by seeking out upland sites in
coastal areas where residential clusters or high rises can be
designed to accomodate large number of residential units, without
destroying wetlands. Indeed, design and siting changes can
accomodate all non-water-dependent activities. This means that
reasonable private and public non-water dependent economic
objectives can be attained without wetland and concomitant water
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quality degradation.
Other activities cannot be so completely resited. A
significant portion of the activities of the oil and gas industry
takes place in wetland and estuarine areas of Louisiana, Texas
and Alaska. Construction of equipment and pipeline canals and
roads all contribute to wetland loss. However, since the oil
and gas industry has found ways of exploring for and developing
oil and gas in unfavorable climatic conditions, such as the North
Sea, where waves reach 20 feet or more and temperatures drop
below zero, it is not unreasonable to conclude that the energy
companies of this country could develop the technologies to
explore and develop for oil and gas in the Louisiana coastal zone
and other wetland areas without extensive dredging. Traditional
technologies have resulted in a labyrinthian maze of canals.
Strict enforcement of the 404 program, phased-in over a period of
a few years, would provide the incentives for the energy industry
to develop technologies which would minimize wetland loss.
If we look at the 404 program in a technology-forcing light,
with the passage of time we should be able to develop
technologies and techniques for attaining economic objectives
without wetland loss. In addition, wetland protection serves
many economic enterprises associated with sport and commercial
fishing, shellfishing and hunting, recreation, tourism,
groundwater recharge, storm protection and water quality
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maintenance. Thus, the conclusion of the Institute for Water
Resources that the Corps regulatory programs have net national
economic benefits is eminently sound. Ipso facto, substantive
weakening of the 404 program, including reducing the scope of
federal jurisdiction, would be expected to impose net economic
costs on the nation.
8. State delegation of the 404 program
Some maintain that the Section 404 program should be spun
off to the states as quickly 35 possible. In the 1977 Amendments
Congress did develop a program for state delegation. Section
404(g) of the Act, 33 U.S.C. Section 1344 (g), sets out basic
criteria and requirements with which a state seeking delegation
of the program must comply.
The delegation process is designed to assure that states
which take over the program will maintain the jurisdictional
scope of the program, regulate appropriate activities and respect
the substantive criteria set out in the 404(b) guidelines 40 CFR
Part 230. In addition, a state must have the resources to
administer and enforce the program. Section 404 also provides
under various circumstances for independent federal review even
after state delegation.
It may be the case that the present EPA state delegation
regulations at 40 C.F.R. Part 123 are unduly cumbersome and could
be streamlined so as not to constitute an unnecessary burden in
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the way of state delegations. If states are to take over the 404
program, however, it should be 'done through compliance with
Section 404(g) procedures, not under the guise of so-called state
program general permits which several Corps districts are
proposing under Section 404 (e). State program general permits
are simply an illegal circumvention of state delegation
procedures.
9. Administrative steps to reduce the
jurisdiction scope of the 404 program
Although some of the efforts at procedural reform are
commendable, serious efforts are underway to reduce the
jurisdictional scope of the program in ways which are blatantly
illegal. The Department of the Army's July 22, 1982 regulations
include two general permits for categories of waters at 33 C.F.R.
Section 330.4 (a) (1) and (2). The first of these two is for all
waters, including wetlands, above the "5 cfs headwaters. This is
the so-called headwater exemption in the form of a general
permit. In contrast to former Corps administrative practice, 33
CFR Section 330.4(a)(l) includes no 10-acre lake exception. The
second, 33 CFR Section 330.4 (a) (2), covers all non-tidal waters
which are not part of a tributary system to interstate or
navigable waters.
Together, these two general permits may cover more than half
of the Nation's wetlands and "isolated" waters. Undoubtedly,
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most of the prairie potholes, isolated cypress domes and large
expanses of inland wetland systems, such as the bottomland
hardwoods, wetland/lake systems and groundwater-fed wetlands,
will not be subject to individual permit regulatory protection
under these general permits. If we assume that non-regulation of
these waters will accelerate their loss, these two general
permits will accelerate degradation, not maintenance and
restoration, of the chemical, physical and biological integrity
of the Nation's waters. They are therefore inconsistent with the
objective of the Clean Water Act.
More specifically, the two general permits for categories of
W3tcrs 1T1ust be viewed as illegal because they do not cover solely
categories of activities similar in nature which have, separately
and cumulatively, minimal impacts on the environment — the basic
requirements of a lawfully issued general permit as set out in
Section 404(e), 33 U.S. Section 1344(e). Although 33 C.F.R.
Section 330.4(b) sets forth six conditions which any activity
must satisfy to qualify for these general permits, none of these
conditions specify that the waters at issue must be shown not to
be wildlife or fish propagation areas. Since many of the inland
wetland systems above 5 cfs or separated from interstate rivers
tributary systems function as fish or wildlife propagation or
feeding areas, these two general permits conflict directly with
one of the primary goals of the Clean Water Act. At the same
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time, many Corps districts have construed the 5 cfs headwater
exemption in.a manner which leads to withdrawal of effective
regulation over activities in large expanses of inland wetland
10
areas.
In addition, some of the substantive nationwide permits at
33 C.F.R. Section 330.5(a) do not satisfy Section 404(e)
criteria. Indeed, the Corps has not prepared detailed
assessments of many of the Part 330 general permits, the mandates
of 40 C.F.R. Section 230.7(a) and (b) and Section 404(e)(l) of
the Act notwithstanding. Likewise, Corps districts which have
proposed state program general permits to date have not prepared
the required assessments. These are just a limited number of
examples of on-going Department of the Army dismantling of the
Section 404 program.
Several national environmental organizations have indicated
that they intend to challenge in court the multifaceted illegal
aspects of the July 22, 1982 regulations and other recent Corps
actions designed to weaken the Section 404 program. When the
executive branch of government violates the lav;, as citizens, we
must seek relief in that third branch of government which the
framers of our Constitution nobly set up in 1789, namely the
judicial branch.
In summary, if we are to take seriously the objective of the
Clean Water Act to maintain and restore the chemical, physical,
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and biological intetgrity of the Nation's waters, we have no
choice but to protect our Nation's wetlands. The Nation's major
wetlands systems, including isolated and infrequently inundated
systems, are linked to interstate commerce. The Clean Water Act
was intended to provide regulatory protection over these wetlands
as part of the waters of the United States. Protection of these
wetlands is a cost-effective, financially sound approach to water
quality management. If properly administered and not gutted, the
Section 404 program will provide enormous net economic benefits
for the country. On-going proposals to restrict the scope of
federal jurisdiction under Section 404 over a significant portion
of the Nation's major wetland systems and to limit exercise of
regulatory authority over clearing, drainage and excavation
operations associated with wetland conversion will have
disastrous consequences for the national effort to maintain and
restore the chemical, physical and biological quality of the
Nation's waters.
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FOOTNOTES
1. Sen. Rep. No. 95-370, 95th Cong., 1st Sess. 10, reprinted in
1977, U.S. Code Cong, and Ad. News 4326, 4336. The legislative
history confirms that Congress* recognized that waters move in
hydrologicai cycles and intended to protect aquatic regimes such
as wetlands because of their importance as biologically active
areas, sources of food supply, spawning grounds for fish and
shellfish and nesting grounds for birds and wildlife and because
they provide natural treatment of waterborne and airborne
pollutants. See, e.g., 4 Legislative History at 638, 708,
901-947, 1281 (Senate Report and Senate Debates) .
2. See, e.g., Leslie Salt Co. v. Froehlke, 578 F. 2d 742, 755
(9th Cir. 1978); United States v. Ashland Oil and Transportation
Co., 504 F. 2d 1317, 1324 (6th Cir. 1974). See, also, H. Rep.
No. 92-911, 92nd Cong.,.2d Sess. 53 (1972), reprinted in 1
Legislative History of the Federal Water Pollution Control Act,
Environmental Policy Division, Congressional Research Service 818
(1972) (hereinafter Legislative History); S. Conf. Rep. No. 1236,
92nd Cong., 2d Sess. 144(1972), reprinted in 1 Legislative
History at 144. Accord, United States v. Byrd, 609 F. 2d 1204,
1209 (7th Cir. 1979); United States v. Ashland Oil and
Transportation Co., 504 F. 2d 1317, 1323-24 (6th Cir. 1974);
Natural Resources Defense Council, Inc. v. Callaway, 392 F. Supp.
685 (D.D.C. 1975) .
3. In 1969, Heald and Odum established the crucial importance
and linkage of the diurnally inundated "fringing" red mangroves
to estuarine systems by identifying the pathways for chemical and
biological transformation of red mangrove leaf litter, through
digestion by bacteria and other aquatic micro-organisms, into
useful food energyfor fish and shellfish. See, E.J. Heald, The
Production of Organic Detritus in a South Florida Estuary, Ph.D.
dissertation, University of Miami, Coral Gables, Florida (1969);
W. E. Odum, Pathway of Energy Flow in a South Florida Estuary,
Ph.D. dissertation, University of Miami, Coral Gables, Florida
(1969) .
4. Lugo, A.E., R. R. Twilley and Patterson-Zucca, The Role of
Black Mangrove Forests in the Productivity of Coastal Ecosystems
in South Florida, (1981)). Dr. Ariel E. Lugo is presently a
research wetland ecologist at the Southern Forest Experiment
Station, Institute of Tropical Forestry in Puerto Rico, formerly
on the faculty of the University of Florida, Gainesville,
Florida. Robert Twilley is now at the University of Maryland and
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formerly a graduate student at the University of Florida. In
their work, these scientists were able to establish that the
number of tidal exchanges in the black mangrove basin forests
studied was very low in February of each year, gradually
increased and peaked around September with some 30 exchanges
K^V*^ They alsTf
"...the decomposition of black mangrove leaves
is much faster than for red mangrove leaves, and
the quality of the litter exported from black
mangrove forests is also richer in nutrients than
that trom red mangrove forests. On a unit area
basis black mangroves export less organic matter
to estuaries than do red mangroves but becaus°
black mangrove forests cover a larger area, i-h = y
actually contribute more organic matter to marine
waters . "
Furthermore, because of increases in tidal exchanges in thp late
summer and early fall, these scientists found that th- basin
vis?rDn?^rnfribUJe °rganic <3*trital matter to the estuaries in
vast pulses of food energy in that period — a time of year
which, as evolution would have it, coincides with an explosion of
demand by estuarine organisms, including juvenile shellfish ?or
f°;f: tnTing.thiS period' Iar9e numbers of estuarine organisms
enter the basin mangroves to take advantage of this natural
wetland derived bounty.
Thus, the less frequently inundated inland basin mangrove swamos
play a crucial complementary role to the frequently inundated red
mangroves in maintaining the fish and shellfish nursery functions
of the surrounding open water estuarine areas. Without them, the
shrimp fisheries of the Florida Gulf would dissapear
Ecologically, there is now no basis to attempt to protect the
diurnally inundated mangroves and not the basin mangroves.
5. C. H. Wharton, "Values and Functions of Bottomland
Hardwoods," p. 341-353; C.J. Schmitt and P.V. Winger, "Factors
Controlling the Fate of Pesticides in Rural Watersheds of th*
Lower Mississippi River Alluvial Valley," pp. 354-375; L.H.
Frederickson, "Management of Lowland Hardwood Wetlands for"
Wildlife: Problems and Potential," Transactions of th-
Forth-Fifth North American Wildlif e~and Natural Resources
Conference, Wildlife Management Institute (1980). See also, C H
Wharton, V. W. Lambow, J. Newson, P.V. Winger, L.l7~Gaddy 'R
Mancke, "The Fauna of Bottomland Hardwoods, in Southeastern United
States," pp. 37-160, Wetlands of Bottomland Hardwood Forests
74
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J.R. Clark and J. Bcnforado, £d. (1981).
/Although large portions of the remaining bottomland hardwood
wetlands are not subject to annual riverine backwater flooding or
are not inundated by rainwater for long periods, they are
enormously important fish spawning and nursery and wildlife
breeding areas. They also provide major recreational habitat to
millions of hunters and fishermen. They produce vast quantities
of organic detrital matter for downstream aquatic and estuarine
systems. Several renowned scientists have noted regarding the
functions of infrequently inundated bottomland hardwood wetlands:
"Even at elevations flooded infrequently, that
is, once every 3-25 years, adaptations of the
ecosystems to flooding are clear, and couplings
with the adjacent aquatic ecosystem are
signi ficant. "
See J.G. Gosselink, S.E. Bayley, W.H. Conner, R.E. Turner,
"Ecolog ical Factors in the Determination of Riparian Wetland
Boundaries," pp. 197-219, Wetlands of Bottomland Hardwood
Forests, J.R. Clark and J. Benforado, Ed. (1931).
When cleared and converted for agriculture, typically
agricultural pesticides move readily by surface runoff frora these
low-lying wetland areas into downstream aquatic and estuarine
areas, and soil erosion rates sre nigh. See C.J. Schmitt and
P.V. Winger, "Factors Controlling the Fate of Pesticides in Rural
Watersheds of the Lower Mississippi River Alluvial Valley," n. 5,
supra; S.J. Ursic, "Sediment Yields From Small Watersheds Under
Various Land Uses and Forest Covers," U.S.D.A. Misc. Publ. 1970.
Fed. Intersgency Sedimentation Conf. Proceedings, pp. 47-52
(1955).
Although these wetlands in some cases are not frequently
inundated for long periods, they perform the very functions
described in the goals of the Clean Water Act, in particular
Section 1011(a)(2).
5. See e.g., 4 Legislative History of the Federal water
Pollution Control Act, Environmental Policy Division,
Congressional Research Service 1322 (1977).
7. See Department of the Army Regulatory Guidance Letter 82-11,
Regulatory Jurisdiction Over Vegetative Operations, dated
September 16, 1932.
8. Impact Analysis of the Corps Regulatory Program, A Report
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Submitted to the Regulatory Function'
of Engineers, November 1931 (Draft).
Branch, Office of the Chief
to
^Slslaj:u71^^
aturaLHesources and the Hmi.J r""°"V5l! !:""!!..Co?mittee__on
Special Report on
'"«
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QUESTIONS FROM THE AUDIENCE FOLLOWING MR. TRIPP'S PRESENTATION:
Mr. Tripp:
Question; What are your thoughts on joining the Section 404
program and NEPA?
Answer: I believe, to a large degree, they are joined today.
The Corps of Engineers is the lead agency for NEPA review under the
404 program and I believe they should continue. Of course, on other
projects the sponsoring agency has to obtain 404 permits and also has
NEPA responsibility for their projects. In such cases, the agencies
are responsible for developing alternatives for their projects. A
major shortcoming in this approach is that NEPA has been interpreted
as procedural, where Section 404 is substantive, in respect to ensuring
the quality of the nation's waters.
Question: Let me paraphrase the question. Coastal Louisiana is
experiencing accelerated land loss at a rate of 50 square miles per
year or 32,000 acres of wetlands per year. Does the Section 404
program have a role to play in this situation?
Answer: I think Mr. Gianelli is right in that the immediate
loss is caused by non-point sources, such as salt water intrusion,
introduction of pesticides and nutrients from agricultural lands,
etc. But one has to address what are the causes of the water quality
changes. I believe the causes are brought about by point source
types of activities like the dredging of drainage canals for agricul-
tural and oil exploration. So that, if my view of Section 404 is
correct in that it should be used to limit the clearing of bottomland
hardwoods, as well as a technology forcing tool that requires the
energy industry to develop new practices for oil exploration which
will limit dredging access canals for oil exploration, then, yes, I
believe the 404 program has a role to play.
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WORKSHOPS
NOTE: No exact transcripts of the workshops were made and
the following is meant to be reasonable representation
of the comments and issues discussed at the
workshops. Each workshop was presented four times,
twice in the afternoon on October 21, and twice in the
morning on October 22.
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EIS REVIEW AND PREPARATION
Panel Members: Dr. Gerald J. Miller
Mr. Ted Bisterfeld
Mr. Bradley Nicolajsen
The objective of this workshop was to provide some insight into
how EPA, Region IV reviews environmental documents, both substan-
tively and procedurally. Additionally, the panel members sought
to solicit how these procedures affected the way the development
agencies were carrying out their environmental responsibilities;
i.e., alternative's development, formulation of mitigation
measures, monitoring techniques, and overall project design.
As a goal, the environmental impact review unit attempts to track
all projects from their inception until they are formalized into
some type of environmental document. Through our input and inter-
action with the project manager, especially during the initial
formulation stages, we have been able to significantly reduce the
environmental difficulties which characterized environmentally
difficult projects prior to this cooperation. During the whole
scoping process, we provide suggestions/observations ranging from
questioning the fundamental worth of the project down to making
relatively minor changes on a particular design feature. The
duration and comprehensiveness of this dialogue is, in general, a
function of how effectively the project manager views its worth.
Hence, a degree of finesse is appropriate. EPA makes no attempt
to control how or what type of projects the development agencies
elect to pursue, but merely to offer insights as to how we perceive
those responsibilities can best be achieved with environmental
sensitivity. On the basis of selected examples discussed by
various attendees and the favorable responses we received from
some of the project managers who participated in the workshops,
we are, at least, doing some things right.
Administratively, EPA's review mandate is directed by Section 309
of the Clean Air Act. The Environmental Review Section is just
one element of the Office of Policy and Management; however, as
will be noted, all functional elements of the agency are brought
to bear on a particular environmental document as needed. Proce-
durally, we request that at least five copies of any environmental
document be forwarded to us. This seemingly large number is due
to the fact that we rely on associate review throughout the agency
and we are tasked to perform these reviews within established time
frames, viz., 45 days for a Draft EIS and 30 days for all other
environmental documents. Since the document may be distributed
to as many as five different programs, the multiple copies are
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essential for immediate distribution to avoid delay. The review
unit, per se, is broken down along the functional areas; i.e.,
water resource activities, primarily Corps of Engineers and Soil
Conservation Service (Dr. Gerald Miller); transportation and energy
(Mr. Joe McEnerney); and health and human services (Ms. Clara J.
DeLay). Upon receipt, the assigned project officer gives a
cursory evaluation to the document and makes the aforementioned
distribution. If, in the project officer's estimation, the
project has controversial elements, he/she may elect to contact
the lead agency for further information and/or one of the Federal
Activity liaison officers at our Washington Headquarters, i.e.,
the Office of Federal Activities. The latter individual can
begin to establish a dialogue with the lead agency's Washington
counterparts if deemed appropriate.
After the comments from the associate reviewers are complete, the
review project officer compiles them into a single unified
response. This response assesses the document in terms of the
facility's environmental consequences and adequacy of the document
in terms of how these are discussed. That is, Categories LO,
ER, or EU, which signify an evaluation of the environmental
impact of the proposed action; and Categories 1, 2, or 3, which
signify an evaluation of the adequacy of the document.
o LO (Lack of Objections) - EPA anticipates no significant/
long-term objections to the proposed action as described
in the Draft EIS, or suggests only minor changes in the
proposed action.
o ER (Environmental Reservations) - EPA has some significant
reservations concerning the environmental effects of
certain aspects of the proposed action. EPA believes
that further study of suggested alternatives or pronounced
modifications are required.
o EU (Environmental Unsatisfactory) - EPA believes that the
proposed action is unsatisfactory because of its poten-
tially harmful effects on the environment. Furthermore,
EPA believes that the potential safeguards which might
be utilized may not adequately protect the environment
from hazards arising from this action. EPA recommends
that alternatives to the action be analyzed further
(including the possibility of no action at all).
The numeric rating of:
1 - (Adequate) - The Draft EIS adequately sets forth the
environmental impact of the proposed action as well as
alternatives reasonably available to the project or
action.
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2 - (Insufficient Information) - EPA believes that the Draft
EIS does not contain sufficient information to assess
fully the environmental impact of the proposed action.
However, from the information submitted, EPA is able to
make a preliminary determination of the impact on the
environment. EPA has requested that the originator
provide the information that was not included in the
Draft EIS.
3 - (Inadequate) - EPA believes that the Draft EIS does not
adequately assess the environmental impact of the proposed
project or action, or that the statement inadequately
analyzes reasonably available alternatives. EPA has
requested more information and has asked that substantial
revision be made to the Draft EIS.
All Final EIS's resulting from Draft EIS's not rated LO-1 are
reviewed to determine whether the statement substantially resolves
the problems surfaced by the Draft EIS.
In most instances, substantive changes are made in the final
document to reflect our comments. In cases where we had serious
concerns and/or found the project to be environmentally unsatisfac-
tory in the draft stage and the final has not made any concessions,
we often attempt to work the problems out with the agency prior
to proceeding with a 309 referral to CEQ.
There was a great deal of discussion regarding the rather
dramatic increase (200% from the base figure) in environmental
assessments and subsequent "Findings of No Significant Impact"
during the previous 18-month period. At the same time EPA,
Region IV received only 2/3 of the number of EIS it usually
reviews. A number of conjectures were made about what these
numbers actually mean. One participant espoused the notion that
NEPA has had a positive impact on how developmental agencies
design their projects. Hence, a facility which fostered few/
diminished adverse impacts would not need a fullfledged EIS.
However, it was also noted that many activities with undiminished
environmental impacts have been lost to the EIS process through
categorical exclusion mechanisms.
Another attendee argued that this change in the degree of
environmental documentation was the result of initiatives
directed by the Reagan Administration. Her line of reasoning
ran that, regardless of the actual environmental consequences of
a particular action, once a decision was made to proceed on
same, an EIS was viewed merely as a "pro forma" exercise. As
might be expected, this provoked some very pointed discussion.
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An immediately related area of interest was surfaced by a
participant from state government who questioned the appropri-
ateness of the Department of Energy's election to address the
restart of the L-Reactor at the .Savannah River Plant (Aiken, S.C.),
using an environmental assessment. An individual from DOE acknow-
ledged that the environmental impacts were large, but indicated
they were no different from those experienced prior to the reactor's
decommissioning in 1968. Since the environmental perturbations are
no different in kind and are generally attenuated by the time they
reach the plant boundaries, DOE deemed an EA appropriate. Although
this idea was elaborated upon in detail, some individuals did not
appear to be convinced by this argument.
Review of "old projects", viz., those designed with a minimal of
environmental sensitivity, was raised in each workshop. These
projects can be very difficult; not in the sense of determining the
facility's impact, but difficult in the sense of making any substan-
tive changes in the project's design. This is due to relatively
obvious reasons. After a protracted period of time, attitudes/
expectations of both the lead agencies and sponsors reach a point
where compromise becomes very difficult. Understanding this does
not make the situiation any easier. Because old projects have
proved to be such a stumbling block in our relations with other
agencies, we have developed a structured tracking program in this
region to make our interests known easily and to keep them before
the project planner as the design evolves.
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ALTERNATIVES
Panel Members: Mr0 Robert B0 Howard
Ms. Dinah Bear
Mr. Sam Tucker
Mr. Robert B. Howard (not an exact transcript)
Welcome to the WORKSHOP ON ALTERNATIVES. My name is Robert B.
Howard. I am the Chief of the NEPA Compliance Section for the
Environmental Protection Agency here in the Atlanta Regional
Office. With me today is Ms. Dinah Bear, Deputy General
Counsel of the Council on Environmental Quality and Mr. Sam
Tucker, who is the Director of Environmental Affairs for the
Florida Power and Light Company. I am very pleased to have Ms.
Bear and Mr. Tucker here to discuss alternatives analyses
through the NEPA process.
Last year I participated in a workshop for this same conference
on scoping. At that workshop, the subject of alternatives kept
coming up. This year when Shep Moore asked me for an idea for
a workshop, I thought that the subject of alternatives might be
a good one. Little did I know that he would have me chair the
workshop.
The requirement to address alternatives comes both directly and
indirectly from the National Environmental Policy Act. The Act
directs that the Federal Government:
-utilize a systematic, interdisciplinary approach which
will insure the integrated use of the natural and social
sciences and the environmental design arts in planning and
in decisionmaking which may have an impact on man's
environment; this is an indirect reference.
It goes on to require Federal agencies to:
-include in ....major Federal actions significantly
affecting the quality of the human erivironmer.t, a detailed
statement .... on-
-o the environmental impact of the proposed action,
-o adverse environmental effects which cannot be
avoided...
-o alternatives to the proposed action
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And finally, NEPA requires Federal agencies to:
- study, develop, and describe appropriate alternatives to
recommended courses of action in any proposal which
involves unresolved conflicts concerning alternative uses
of available resources.
The act uses the word "appropriate" and the CEQ regulations use
the word "reasonable". There are large differences in the
definitions of these words in the scope of alternative analyses
among the various Federal agencies.
These differences may be due to:
-large differences in the type of projects addressed, and
-great variation in the Federal involvement;
(for example; regulatory, sponsor, loan guarantee, or
partial funding actions)
These factors may significantly affect the definition of the
words "appropriate" and "reasonable".
CEQ has addressed the issues regarding alternatives in
regulations and guidance. Two years ago major revisions to the
NEPA regs were made. Some of these revisions were designed to
help clarify the concerns regarding alternatives. CEQ is once
again considering the issues of NEPA. Alternatives is one of
those issues.
Ms Dinah Bear, Deputy General Council for the CEQ has
graciously agreed to join us today and to discuss CEQ's
existing regulations and guidance and any recent i;elevant court
cases .
Ms. Dinah Bear (not an exact transcript)
The CEQ regulations directly address the subject of
alternatives. They require agencies to rigorously explore and
objectively evaluate all reasonable alternatives, and for
alternatives which were eliminated from detailed study, briefly
discuss the reasons for their having been eliminated. They
require agencies to:
- devote substantial treatment to each alternative
considered in detail, including the proposed action, so
that reviewers may evaluate their comparative merits,
- include reasonable alternatives not within the
jurisdiction of the lead, agency,
- and to include the alternative of no action.
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In March of 1981 CEQ issued a guidance document containing 40
questions and answers. The very first questions addressed the
issues involving alternatives.
Q.-What is meant by "range of alternatives"?
A -It includes all reasonable alternatives which must be
rigorously explored and objectively evaluated, as well as ^
those other alternatives which are eliminated from oetaileo
study with a brief discussion of the reasons tor
eliminating them.
Q.-If an EIS is prepared in connection with an application
for a permit or other federal approval, must the EIS
rigorously analyze and discuss alternatives that are
outside the capability of the applicant or can it be
limited to reasonable alternatives that can be carried out
by the applicant?
A -The regulations require the EIS to examine all
reasonable alternatives to the proposal. In determining
the scope of alternatives to be considered, the emphasis is
on what is "reasonable" rather than on whether the
proponent or applicant likes or is itself capable of
carrying out a particular alternative. Reasonable
alternatives include those that are practical or feasible
from the technical and economic standpoint and using common
sense, rather than simply desirable from the standpoint of
the applicant.
Q.-Must the EIS analyze alternatives outside che
jurisdiction or capability of the agency?
A.-An alternative that is outside the legal jurisdiction of
the lead agency must still be analyzed in the EIS if it is
reasonable. A potential conflict with local of federal law
does not necessarely render an alternative unreasonable,
although such conflicts must be considered.
Until very recently, courts have not been discussing the
alternatives issue in terms of applicant as opposed to
agency-initiated proposals. Rather, the courts nave been using
a "reasonableness test" for determining the scope of
alternatives to be considered in an EIS. The D. C. Court of
Appeals stated in NRDC v. Morton that, "The statute must be
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construed in the light of reason if it is not to demand what
is, fairly speaking, not meaningfully possible..." The court
also said in that case that the "discussion of environmental
effects of alternatives need not be exhaustive". Other courts
focusing on this issue have generally applied the "rule of
reason" to the particular EIS it was examining and then made a
determination as to v/hether the range and examination of
alternatives was indeed reasonable. However, these cases have
not provided criteria for what is or is not "reasonable",
particularly in regard to the aspect which we're discussing
today .
Quite recently, however, the 1st Circuit Court (in anticipation
of this workshop I'm sure) issued an opinion which addresses
the problem of alternatives in a permitting situation. The
case is Roosevelt Campobello International Park Commission ^v
EPA (17 EEC 2023), and to my knowledge, it is the first
judicial opinion to examine the alternatives question in the
light that we're looking at it today. That case involved EPA's
decision to issue an NPDES permit to the Pittston Co., which is
constructing an oil refinery and marine terminal in Eastport,
Maine. The Plaintiffs argued that 1) EPA had erred by making a
less searching analysis of alternatives to the privately
sponsored project than it would have if the project was
publicly funded; 2) that EPA unreasonably limited its
consideration of alternative sites to three locations in Maine;
and 3) that EPA's comparison of the sites was inadequate.
In its presentation of the case, EPA stated that the purpose of
examining alternatives in reviewing permit applications for
privately sponsored projects was indeed different than the
purpose of examining alternatives for an agency initiated
project. In the case of a permit application, EPA said its
purpose was "to determine whether the proposed site in
environmentally acceptable". In the case of an EPA project,
EPA's purpose would be to locate an optimum site for a new
facility. EPA also concluded that these different purposes
affect the extent of information on alternatives necessary to
make a decision.
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The Court agreed with EPA on these issues. It stated that,
"EPA's duty under NEPA is to study all alternatives that
'appear reasonable and appropriate for study at the time' of
drafting the EIS as well as 'significant alternatives'
suggested by other agencies." In this case, the Court said
that EPA's decision to limit its study of alternatives was
consistent with the rule of reason. Furthermore, the Court
stated that to preserve an alternatives question for
litigation, a potential plaintiff or intervenor would have to
offer tangible evidence, during the comment period, that an
alternative site might offer a, "substantial measure of
superiority" as a site.
This case certainly offers some guidance as to how the "rule of
reason" can be applied to permitting situations. It explicitly
approves of the two different approaches to alternatives
analysis. Several things should be kept in mind however. One
-- EPA did evaluate three alternative sites. The choice of
these sites was dictated by Pittston's objectives and
considerations. Those alternatives were analysed comparatively
in terms of air quality, water quality, present land and sea
uses, terrestrial and aquatic flora or fauna, and aesthetics.
Two — This is the first decision of its type and there is no
way of predicting whether the other Circuits will adopt the 1st
Circuit's reasoning. Three -- Plaintiffs failed in part
because they had not pointed to any environmentally superior
sites during the commenting period.
I look forward to learning what you think about this issue.
Mr. Robert B. Howard (not an exact transcript)
Thank you Dinah.
One of the major issues regarding alternatives is the scope of
and timing for alternatives analyses for regulatory actions.
Dinah just discussed a court decision involving regulatory
actions .
Mr. Sam Tucker who is the Director of Environmental Affairs for
the Florida Power and Light Company has volunteered to describe
some of industry's concerns regarding NEPA alternatives
analyses.
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Mr. Sam Tucker (not an exact transcript)
The first point to be made is that the overall NEPA compliance
process has changed over the years. Industries in most cases
are now anxious to work with Federal agencies in developing
EIS's. This philosophy is particularly true with Florida Power
and Light Company. We see that these requirements are
basically just good planning and .are in the best interests of
our company. In most cases we would perform these types of
analyses in order to meet our objective of providing electrical
power to our customers in an environmentally responsible way
for the least cost.
The second point is that it is very important that the
regulated industry agree on the alternatives considered in an
EIS as actually being "reasonable". No one knows what truly is
reasonable as well as the proposing industry. Close
cooperation on identifying reasonable alternatives can avoid
unnecessary conflicts and misinformation being distributed to
the public. Still, it is the Federal agency's responsibility
to make the final decisions regarding what is or is not
reasonable.
The final point is that it is extremely important for Federal
agencies to work with industry very early in the EIS process.
Scoping should start while the industry is beginning it's
consideration of alternatives. If involvement does not occur
early, the process loses its usefullness to industry.
Companies need to know the concerns and requirements of
agencies and the public.
Mr. Robert B. Howard (riot an exact transcript)
Thank You Sam.
Now to the most important part of this workshop, what you think
about this subject.
The following issue areas were discussed.
- What factors should the Federal agency use in defining
"appropriate" or "reasonable" alternatives?
- What should the timing be for performing and releasing
the analysis?
- What do you think about the requirement to identify the
environmentally preferable alternative(s)?
- What do you think about the use of "straw men"
alternatives?
- What do you think about two or more levels and time
frame? for analyses, (1) site and no action, arid (2)
project specific (mitigation, project layout, etc.)?
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- What should the relationship be between the Federal
action involved and the scope of the alternatives analyses?
- Who should be responsible for identifying appropriate
alternatives, the sponsoring _entity or always the Federal
agency?
- Due to major differences amongst Federal agencies on the
types of actions covered, should their be great flexibility
in the allowable scope of the alternatives analyses?
- Do you have any comments on developing or evaluating the
"no action" alternative? Is it always possible to
determine such an alternative?
- Should an agency be required to evaluate alternatives not
within their jurisdiction?
- Should a cost benefit analysis be required as part of an
EIS?
- Should any other alternatives be considered reasonable
when another piece of legislation, regulation or guidance
mandates a particular course of action? For example,
should any alternatives other than the National Economic
Development (NED) alternative be considered for a water
resources project since a decision maker, according to the
Water Resources Council's Principles and Guidelines, must
almost always select this alternative?
Definitive answers could not be given for each of these issue
areas. However, the importance of determining "reasonable" for
each individual case was emphasized. It was noted that just
because an action was not within the jurisdiction of an agency
or was not easy or possible to implement due to law or
regulation, if that alternative could reasonably meet the
objectives of the project and could be argued to reflect
environmental benefit, it should be considered.
The idea of having a two staged alternatives analysis received
positive and negative comments. It was noted that such an
approach could resolve certain issues very early in the NEPA
process but would add more paperwork . It was recommended that
this approach be allowed as an option.
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It was emphasized that agencies do not have to identify the
single most environmentally preferable alternative but may
identify several such alternatives if there are more than one
The agency should identify the environmental differences and
tradeoffs among these alternatives.
It v/as stated that no cost benefit analysis is required by
NEPA, however, if one is performed it should be referenced in
the EIS. It was noted that most agency sponsored actions
require some such evaluation.
Much additional discussion occurred regarding experiences
involving alternatives analyses and these issues. No exact
transcript was made of these discussions.
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DIRECTION FOR WATER RESOURCES IN THE 1980's
Panel Members: Mr. John Rushing
Dr. Marc Safley
Mr. Chris White
Mr. P'mdell Jones
I would like to welcome each of you to the workshop on Direction for Water
Resources in 1,N 1980's and urge your participation in the ensuing discussions.
As noted by the? title of the workshop, items other than environmental issues
will probably be discussed and, as you may guess, economics will be one of the
items. Regardless, any item which affects the direction for water resources
in the 1980's will definitely impact environmental issues. Hopefully, we
will be able to identify the necessary tradeoffs so that good decisions can
be made.
The workshop is organized in a panel-discussion format with representatives
from two Federal agencies - the Corps of Engineers and the SCS of the Depart-
i
ment of Agriculture - and the agency responsible for water resources planning
in the State of Georgia - Environmental Protection Division of DNR - as the
panel. Each panel member will present his views on the subject and then the
floor will be opened to discussion. I encourage you to take advantage of this
opportunity to present your views and ideas concerning the direction for
water resources in the 1980's.
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DIRECTION FOR WATER RESOURCES IN THE 1980's
Remarks by John W. Rushing, Assistant Chief,
Planning Division, South Atlantic Division,
Corps of Engineers
In his testimony before the Subcommittee on Energy and Water Development,
on the FY 1983 Civil Works budget on February 17, 1982, Mr. William R. Gianelli,
Asst. Secretary of the Army, noted that, the Federal public works programs,
including the Civil Works program of the Corps of Engineers, are at a cross-
roads. It is apparent that changes are needed to restore the viability of the
programs, particularly during times of budget constraint. Pressure on the
Federal budget precludes the Federal Government from being able to finance
all -- or even a major portion -- of the water projects which this Nation
needs.
To cope with this problem, the Administration has adopted several positions
on water resources development policy. My remarks today are going to be on
the following principal areas as related to the Corps of Engineers:
- Principles and Guidelines for planning water resources development.
- Cost sharing policies.
- Regulatory program reforms.
Statements made by M". Gianelli before the Subcommittee on Water Resources,
Committee on Public Works and Transportation, U.S. House of Representatives,
on June 8, 1982 were utilized in preparing these remarks.
PRINCIPLES AND GUIDELINES
The new Principles and Guidelines proposed to replace the Principles and
Standards were published in the Federal Register on March 22, 1982 with the
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comment period running through May 21, 1982. An interagency staff team is
in the process of making revisions to the Guidelines in response to public
comments so that they may be published in final form at an early date. The
existing Principles and Standards will be repealed at that time. The Guide-
lines would apply to studies completed more than 120 days after their issuance.
I would like to mention two points in the Guidelines which, on the one hand,
simplify the planning process and, on the other, help determine which
projects move into construction on a priority basis. First, there would be
only one required Federal objective to guide agency planning and that is that
water resources projects contribute to national economic development. This
objective would be addressed with environmentally sensitive plans, but the
need to produce a plan with the primary purpose of enhancing the environment
would be eliminated (no more EQ plans per se). Secondly, future postauthori-
zation studies would be done under the Guidelines, regardless of when the
initial studies were completed.
The Guidelines, which are a simplification of the Principles and Standards
in use over the past ten years or so and the cost sharing and financing
changes, which I will discuss later, are key areas where the Administration
believes the proposed changes are needed. More flexible planning guidelines
and a higher level of non-Federal cost sharing and financing will, in the
Administration's views, result in production of more implementable plans on
a more reasonable timetable.
FINANCING AND COST SHARING POLICIES
Three categories of changes were considered by the Administration in this
area. The first pertains to vendible outputs such as hydropower and water
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supply. The cost sharing proposed is consistent with existing law, i.e. the
user pays 100% of the total costs allocated to that purpose. However, the
user is being asked to finance rather than reimburse, over time, the costs
allocated to water supply and hydropower. This reduces the funds the Federal
Government must appropriate and then borrow with interest in the open money
markets.
The second category is flood control. In the past, existing legislation pro-
vided for local interests to pay for lands, easements and rights-of-way on
local protection projects and the Federal Government to pay for all of the
costs allocated to flood control on reservoir projects with widespread
benefits. This meant that for flood control local interests paid as much
as 50% of project costs or as little as none, depending on the type of
project. The Department of the Army proposal calling for 35% non-Federal
financing on all Federally constructed projects was designed to achieve
comparable cost sharing for flood damage reduction, regardless of how achieved,
as well as increase the average percentage paid by non-Federal sponsors.
The third type of project is navigation improvement. The Administration's
proposal calls for essentially full recovery of costs assigned to deepening
major harbors and for annual O&M. A compromise of 75% upfront and 25% reim-
bursement over time for major harbors (Baltimore, etc.) was offered. This
would be a compromise between the options of 100% Federal financing with
50-year reimbursement and 100% non-Federal financing as contained in the
proposed legislation.
Cost sharing for studies done by the Corps of Engineers is also proposed in
an effort to concentrate planning resources (manpower and budgetary) on the
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nr.ore important studies which have the best chance of implementation. All new
studies pertaining to specific problem areas would be undertaken in two phases,
The first phase would be a reconnaissance phase financed 100 percent with
Federal funds and normally completed within a year. This phase would be fully
funded when it receives its initial appropriation and would establish:
- the definition of the problem and its potential solutions;
- a determination of whether or not the study should proceed further,
based on a preliminary appraisal of costs, benefits, and environmental impacts
of alternative solutions;
- an estimate of the costs of the second phase feasibility study; and
- identification of local sponsor(s) and indication of its (their)
willingness to participate in the feasibility study on a cost sharing basis.
The second phase of study would be cost shared 50/50 with no more than h of
jkhe non-Federal share to be "effort".
REGULATORY PROGRAM REFORMS
This aspect was addressed earlier in this conference by Mr. Gianelli in his
remarks. The impacts of the changes are the subject of a separate workshop
which you may wish to attend or already have attended. At this point, I
would just like to mention the major items directed by the Presidential Task
Force on Regulatory Relief with respect to regulatory efforts under Section
404 of the Clean Water Act and Section 10 of the River and Harbor Act of 1899:
(1) New agreements should be developed with Federal resource agencies
to assure that disagreements over permit decisions are resolved through a
single review above the District Engineer in less than 120 days;
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(2) Internal procedures should be modified so that the Corps' District
Engineers are able to make decisions on permit applications within 60 days
of their receipt;
(3) Use of general permits be expanded;
(4) States be given more authority and responsibility by issuing general
permits on a statewide basis with appropriate safeguards and that EPA revise
its regulations to increase incentives and simplify procedures for state
assumptions of the Section 404 program; and,
(5) The scope of the Section 404 program be clarified to clearly state
the jurisdictional limits and to protect the integrity of the Nation's waters.
The Administration believes the above changes will be healthy steps in the
direction of good government and provide the public with a responsive and
sensible program which will allow needed development to proceed and still
fulfill our environmental responsibilities.
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SCS WATER RESOURCES PROGRAM IN THE 1980's
Remarks by Marc Safley, Environmental Specialist,
Soil Conservation Service
Washington, D.C.
Good Afternoon! It is a pleasure to be with you today and talk with you about
the Soil Conservation Service's water resource program for the 1980's.
The Soil Conservation Service (SCS) is an agency of the U.S. Department of
Agriculture. We are charged with the mission of providing technical and
financial assistance to landowners and landusers to help them manage and
conserve their soil and water resources. In 1977, SCS began an evaluation
of the Nation's soil, water and related resources. This activity was man-
dated by the Soil find Water Resources Conservation Act of 1977 (RCA) . RCA
evaluations were carried out to determine what the role of USDA will be in
soil and water conservation. USDA analysts placed the Nation's resource
concerns in order of need for action. First priority is erosion control
(SCS's historical mandate). Upstream flood prevention and water management
are coequal second priority concerns. As a result of RCA findings, SCS is
beginning to reorient personnel and funds to more adequately address RCA
high-priority concerns. This redirection is being done in our water resources
activities as well as in our other assistance programs.
Let me draw a distinction at this time between SCS programs (including our water
resources programs) and the project activities of most Federal agencies.
SCS programs are Federally-assisted. Our assistance is requested by local
and/or state entities or groups. Local sponsoring organizations provide part
of the cost of our water resource projects.
SCS's water resources programs include all or part of our Small Watershed
Program (PL-566)., Flood Prevention Program (PL-534), Emergency Watershed
Program, River Basin Program, Resource, Conservation and Development (RC&D)
Program, and Rural Clean VJater Program. My remarks this afternoon will be
confined to implementation of Level C water resources projects—in SCS, the
Small Watershed Program.
Traditionally, the Small Watershed Program has used a combination of
structural and land treatment elements to effect desired primary outputs of
erosion control and flood prevention. We have begun to plan and implement
Land Treatnent Projects which use land treatment elements (such as terraces,
conservation tillage, debris basins, etc.) to control erosion, maintain soil
resource productivity, and control runoff of precipitation. We believe
Land Treatnent Projects will comprise about 25 percent of our PL-566 resources
within the next few years.
As you know, there is an effort underway to reform the way the Federal water
program is carried out. The substance of that reform is contained in the
proposed replacement for the Water Resource Council's "Principles and
Standards." These "Principles and Guidelines" (P&G) were published in draft
form in the Federal Register in March of this year It is our understanding
that they will be. released as final rules some fine later this year. Although
John will address them in greater detail later, let me list the four main
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ooints in P&G because they will serve to guide SCS's water resources program:
1. The National Economic Development (NED) objective is the sole
Federal objective in water resource development;
2. Federal planning, development, and investment will focus on
local concerns;
3. The cost of vendible services will be paid by the beneficiary, and
A. Water resource services should be provided to the public by the
agency, group, etc., that can do it for the least cost.
Under P&G SCS will be developing plans which will have as selected alternative
the one which maximizes NED. This, of course, will not be a pure NED plan,
«r,Te t0 COMt«ined by national and state environmental
8tatutes •/ ' oU SS NEPA' the Clean Water Act» archeolosical
cannot be ?±T! A^ °t PL~566' F°r thOSe planS in Which an N®> plan
|fflS£t be formulated but which are needed to achieve erosion control/soil
productivity maintenance, or other defined SCS priority concern, SCS will
rPti°VrC: P&G fr°m the Secretary of Agriculture. We snan seek
for only the projects which truly merit them.
-
p
We believe this is good management and the most efficient way to use our
fiscal and technical resources.
There are still questions to be answered with regard to the small details of
water resource planning under Principles and Guidelines. These will be
mentsSin ho11'6 "? ""^ ^ 1O°kS in flnal f°m' We foresee some adjust-
ments in how we formulate, cost share, and implement our plans. We shall
continue to work with NEPA as part of our planning process, and we believe
our planning product will be even better. relieve
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THE DIRECTION OF WATER RESOURCES FOR THE 80's
THE PERSPECTIVE IN GEORG IA
Remarks by Chris White, Branch Chief,
Randall Jones, Environmental Engineer,
Environmental Protection Division of Department of Natural Resources
INTRODUCTION
Today, the overall oualitv of Georgia's environment is nood, TTie vast major! t*
of Georgians enjoy clean air and clean water all throughout the State, Of course,
problems do exist, but we believe these are localized nroblems that can and are
beina addressed.
Given the theme of this workshop "Direction of Hater Resources for the 80's",
there are three noints about current activities in Georgia that seems narticularlv
aonrooriate for discussion: first, what kinds of oroblems face the citizens of
our state; secondlv, how are these unioue situations beina addressed at the State
level of aoverrrent; and thirdly wnv has Georpia taken this aonroach,
PRQBlffi
A nreliminarv report entitled "Water Use in fieoraia 1980" was orenared in •
1981 bv the Georgia EnvironTental Protection Division, TTiis renort reveals that
voter use in Georpia has increased bv niore than 25% over the last 10 years to a
dailv, state-wide withdrawal of sore 7 billion nallons from our strecns and rivers
and pround water onuifers, That's about 1300 gal ions each dew for everv nan,
warm or child in the state, mis renort further describes how our develoned voter
resources (80% fron surface sources, 20% from groundwater) are distributed anonn
aive catenaries of use: nublic sunniv (12%); rural use (1%); irrigation (9%); self
sunnlied industrv (19%); and thenroelectric (coolina) -- (59%), It further esti-
mates that of this total water use, 15% is consured and 857, is returned to the
svstem. Unfortunately this renort of water use does not reveal one very impor-
tant asoect of Georpia's water resources, and that is, vhat is the total resource
available for use and how is it distributed throuahout the state, The determina-
tion of this information is vitally important to the successful future manapement o
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Georgia's water resources,
Georgia is a headwater state that uses both surface v/ater and around water
resources. Surface ruroff denarts in 15 different relatively small river basins
generally draining the northern part of the state toward the south, And although
we share river basins with some of our neighboring states, no rivers flow into
Georgia, Accordingly, we control our own destinies without inheriting problems
from outside our Jurisdiction, Georgia's ground water is plentiful in the
southern half of the state which is underlain bv the principal artesian acouifer,
The northern oortion of the state overlyina the crystalline rock of the Piedront
region has severely limited aroundwater resources,
The combination of these voter resource settings illustrates one of the
major problems Georgia is facing, "Ore northern region must depend in general
on small surface flows as groundwater is not available, The southern portion
of the state enjoys both extensive groundwater resources and larger surface flows,
Unfortunately, the demand for water is growing rapidly in the northern part
of the state where suonlies are limited, and althouah groundwater is nenerally
plentiful in the southern portion, this resource is bein^ overtaxed along the
coast giving rise to some special problems there involving severe cones of
cteoression and salt water intrusion, In southwest Georgia increasim water
use bv agriculture has become a major factor in the use of the resources. These
are the water resource problems which face Georgians todav and tomorrow,
ADDRESSING THE PROBLEMS
Georgia is addressing its water resource problems through a government organi-
zation uniaue arong states - the Environmental Protection Division (EpD), The
EPD is a "one-stop" shon for inauiring industries, local govemrents, ond nrivate
citizens who can contact the EPD to determine the status of resources and the re-
ouirements to conduct certain activities under state law, Tne responsibility
for the environmental regulation/permitting nrocess in Georgia has been delegated
by law to the Environmental Protection Division.
TOO
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In Georgia, water/ air and land protection are all resnonsi bill ties of EPD,
Proarcms within EPD include arena others: clean air, safe drinking water, water
quality and ground water use, surface water allocation, safe dans, solid waste
ranansmsnt, hazaroous waste management, strin mining and land reclamation, air
duality, environmental radiation, oil, pas and deep wells, and the function of
the State Geologist, These responsibilities are carried out bv several branches
of the EPD two of which are the Water Protection Branch, resoonsible for water
duality/ and the Water Resources Manaaement Branch (WRfU) responsible for water
quantity, It is the WRMB which nust address the supply and demand problems dis-
cussed earlier and which nust answer the question: What is the available water
resource and where is it located throughout the State?
To answer this question, EPD through the WRFB is developing a statewide
"water budget", Like a financial budget it will describe the available resource
and coma re it with existing and exoected demands, This statewide budget will be
comosed of individual water budgets prepared for each significant withdrawal and
discharge point in each of the 15 river basins,
The water budget is a key to the water manacienent effort that has been supported
by the Governor and the Legislature since the program was initiated in 1980, with
the water budget available EPD can develop management criteria for nrotectinn the
resource while permitting vise use, Tliese criteria will be discussed with the
D3onle of the river basin and their views will be reflected in the final basin
management strategv, '
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water users, of both groundwater and surface water, must cpnly for and receive
a oerrmt for withdrawal, Agricultural uses are exempted from permitting re-
nuireT3nts although irrigation users will soon be reouired to report their usane,
to help in establish!IP the water budget, Small users below 100,000 GPD require
no permit,
The issued water use permit designates a certain maximum withdrawal rate and
provides that everv user in meetiIP his withdrawal reauiranents may not encroach
u^on that flow in the strean necessary to maintain acquatic life and receive
wastewater discharges, In Georgia, this protected low-level strean flow is the
7Q10 flow, This permittinn nrocess works to the advantane of remitted users bv
protecting their useage against encroachment by other users of surface or ground
water, The nermit nrocess nrotects the resource as well,
W TtilS APPROACH?
The direction for water resources in Georgia in the 1980's will be toward
manggement improvement. Ttie basis for this is set forth as a declaration of nolicv
in the 1977 Surface Voter Arendrents to the Hater Quality Act of 1954,",,,,the rater
resources of the State shall be utilized prudently to the maxima1! benefit of the
people,,,,(and),,,,the State shall assure responsibility for,,,,establishment and
maintenance of a water nualitv and water quantity control nronran adenuate for
nresent needs and designed to care for the future needs of the State—"
Under this policy directive, and with supporting leaislation dating back to
1954 and including laws from our most recent legislative session, our water re-
sources management program is onerating as a flexible system rather than as a rigid
plan. It is reactive rather than directive, thereby accomrodatinn changes as thev
occur, Our management system reacts to various development ontions, nrovides in-
formation on water availability and use, recognizes restrictions iPTX)sed by the
limits of the resource, protects nermitted users and others and encouranes the
wise and reasonable use of our water resources,
An important part of our strategy is to cooperate with other governmental agencies
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who con assist us in serving the citizens of Georpia. Currently, we are being
helped in the development of solutions to sore of our more severe problems through-
out the State.
CLOSING
"me focus of this workshop is the Directions of V/ater Resources for the 80's,
We have presented to vou todav how one State, teorgia, is amroachinn that question,
We have illustrated what supply and demand problems face us now and in the fore-
seeable future; we have described how Georgia is addressing these nroblems; and
we have presented the philosophy behind the proaran that we have established, we
believe that our approach in Georgia to water manaaemant is a sound, positive
proaran encouraging wise and reasonable use of our resources.
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IMPACTS OF RECENT 404 REGULATORY CHANGES
ON FEDERAL AGENCY REVIEWS
Panel Members: Mr. E.T. Heinen
Mr. John Baumeister
Mr. Frank Yelverton
Mr. Richard J. Hoogland
This workshop was particularly pertinent for the Conference
attendees since the morning speakers all addressed issues
relating to wetlands and the Federal regulatory process that
controls the dredging and/or deposition of dredged or fill
material into waters of the United States. All sessions were
very well attended.
Representatives of the EPA, U.S. Corps of Engineers, the U.S.
Fish and Wildlife Service, and the National Marine Fisheries
Service discussed the proposed changes in the Corps'
regulations pertaining to wetlands and Federal permit
procedures and highlighted areas meriting special notice.
Chief among such concerns were changes in crucial definitions,
procedural problems that would result from decreasing the
allowable time to review and comment on applications, the new
elevation procedures and signature requirements, and the degree
of impacts to certain wetlands resulting from the expanded
general, or nationwide permits.
Representatives from various State agencies brought to the
attention of all that some of the changes directly opposed
individual State laws, regulations and/or procedures. Of
particular concern was the reduced time for providing State
certification for applications. While such concerns were noted
by officials from Washington, there was little resolution of
the issues at the workshop sessions. All concerns expressed,
however, are to be considered during subsequent actions
relating to regulatory reform.
Specific concerns from the agencies listed below, and
represented today, are reproduced on the following pages:
U.S. Fish & Wildlife Service
National Marine Fisheries Service
U.S. Corps of Engineers
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IMPACTS OF SECTION 404 REGULATORY CHANGES ON THE
REVIEW OF SECTION 10/404 PERMITS
Remarks by Richard J. Hoogland, Chief, Environmental
Assessment Branch, National Marines Fisheries Service
St. Petersburg, FL
The purpose of NMFS is to conduct research and management aimed
at continued wise use of the Nation's living marine resources for
economic, recreational and aesthetic benefits of the people of the
Nation. To fulfill this purpose, it is necessary that attention
be paid to the habitat of these resources since habitat is the founda-
tion of the resource and the keystone of resource renewability.
We strive to reverse the current downward trends in quantity and
quality of fish habitats by minimizing, and where possible, eliminating
further losses and degradation of these habitats; and restoring and
enhancing them where possible, while recognizing other compatible
essential uses of fish habitat areas.
The past Section 404 program has, in our view, been an effective
mechanism for monitoring protection of essential chemical, physical
and biological integrity of the Nation's waters as defined as its
purpose in the Vice President's Task Force announcement and as an
objective in the Clean Water Act. It has been said that Section 404
was not intended as wetland protector. However, nurturing biological
quality of water necessitates maintaining integrity of marsh and swamp
wetlands. We are, therefore, concerned over any revision of these
proven mechanisms that may weaken and ultimately adversely impact
living marine resources and the habitat that sustains them; Estuarine
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wetlands are extremely valuable i.e., 90% of commercial and 70% of
recreational harvests are estuarine dependent.
We agree that improving efficiency and eliminating unnecessary
delay in processing permit applications are desirable, especially where
there is evidence that it is deficient and justified. However, hasty
action taken to improve efficiency by shortening processing time on
all actions and fixed time limits in overall processing time, thereby
reducing opportunities for referral of unresolved differences, gives
appearance of being arbitrary and overlooking the importance of
aquatic resources. We referred about 27 permit applications since
the original MOA and lost 27 . Notwithstanding the fact that the
current permit review system can and should be streamlined, a short
term simplistic, and arbitrary system favors a development-dominated
economic approach and usually precludes an objective overall public
interest analysis, particularly on significant or controversial pro-
jects (only 25% of caseload fit in this category).
Specific problem areas in regulation changes
1. Nationwide permits - Most activities being exempted will have
little or no impact on living marine resources. However, some
activities will have potential to impact wetlands supporting living
marine resources, e.g., work in artificial canals; deposition of 10
cubic yards or less of fill material into waters of the United States;
and bank stabilization; and fills associated with bridges and cause-
ways, therefore, should be topics of regional general permits under
the District Engineers.
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2. Deferral to Department of Interior on activities affecting PCS -
The Minerals Management Service does not feel bound by FWCA and does
not consider it necessary to consult with Federal and State marine
fishery agencies before issuing OCS drilling or production permits.
3. Concerned with vagueness and lack of detail given to Districts
and varying interpretations
a. Consideration of cumulative impacts - There are no consis-
tant means or guidelines provided for the Corps Districts to use
during their public interest review. Some districts don't consider
cumulative impact assessments or they use different criteria to
determine them.
b. Methodology for evaluating importance of wetlands - Exper-
iencing discrepancies between Corps Districts. Their guidance is
vague and subject to varying interpretations.
c. Irrigation exemption - Gives no size limitations, i.e.,
width and depth, has allowed cases where irrigation constructed under
the exemption were actually boating access canals and should have
permits.
d. Currently serviceable structures exemption - (dikes, dams,
levees, groins) does not provide a distinct definition or guidance
to Corps Districts, interpretations vary between Districts as to
what qualifies as currently serviceable and reasonable period of
time.
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4. Program transfers to states - Presently proposed, Jacksonville
and New Orleans Districts "General Permits" are lacking in the
following important points:
a. Are not requiring the States to meet the requirements of
the Fish and Wildlife Coordination Act, i.e., not requiring that
great weight be given to Federal fish and wildlife agencies' views;
b. Not requiring the States to consider cumulative and indirect
impacts to the entire resource, i.e., shrimp resources across entire
Gulf of Mexico;
c. Not recognizing the states' inability to consider national
interests or interests of neighboring states;
d. Not recognizing the inconsistant ability and interest in
wetland protection between states; and
e. Not requiring mitigation of losses
The North Carolina general permit through the Wilmington District
meets with our approval.
5. District Engineers' authority - can unilaterally modify or delete
conditions in issued permits even if the conditions were recommended by
Federal review agencies and making the project acceptable with the
conditions as a prerequisite for permit issuance. Often the accept-
ability of a project to us is dependent on modifications or special
conditions to the permit.
6. Enforcement of illegal activities
° Initial investigation - Some districts are interpreting new reg-
ulations, guidance to solicit our views as unnecessary or at most
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discretionary. This undermines our opportunity to comment on probabl
impacts to living marine resources. Not all districts are dedicated
habitat protectors.
o After-the-fact permits - Some Districts interpret Corps
regulations to issue A-T-F permits for all violations. This is
no deterrent to potential violators and appears to encourage some
people to violate the law rather than proceed with before-the-fact
process.
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CHANGES IN SECTION 404 OF THE CLEAN WATER ACT
Remarks by Frank Yelverton, Special Project Manager
Wilmington District, Corps of Engineers
Major changes in section 404 of the Clean Water Act revolve around
reduction in permit processing time. This involves time limits in
processing of routine and major permit applications and issuance of new
nationwide permits. These time reductions are reflected in our permit
regulations published in the Federal Register on 22 July 1982 and in the
new Memorandum of Agreement signed in early July 1982 between the Army and
EPA, Department of the Interior, and Department of Commerce.
Here are several significant changes in our regulations. They are as
follows:
First, a public notice must be issued within 15 days of receipt of a
completed application and most permit decisions on routine
applications must be made within 60 days of the receipt of a
completed application. Also, action on a 401 certificate is
generally required within 60 days.
The second change is the expansion of the nationwide permit program,
i.e., actions that are permitted without need of processing
individual permits. Along with additional nationwide permits,
Division Engineers have now been given authority, on their own
initiative or upon recommendation by a district engineer, to add
regional conditions to nationwide permits or require individual
permits on a case by case basis.
Third, general permits are recommended for State programs which
duplicate the Federal program. We have issued such a general permit
in the Wilmington District for the coastal counties of North
Carolina. Approximately 80% of our permits are handled_under this
general permit with the majority of the processing done by State
agencies. This does not alleviate 80% of the workload, however,
since most projects involve pre-application meetings and other
coordination.
Other changes in our regulations include items such as:
(1) Minor violations no longer need to be coordinated with Federal
and State agencies.
(2) A section has been added to our regulation (323.4), to clarify
and define what activities are exempt from Section 404.
Regarding changes to the MOA.
Under the former MOA, there was a four step process elevating the
project to a high decision level that an agency could take if it objected
110
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to the district engineers decision on a project. These steps included the
Division Engineer, Chief of Engineers, Assistant Secretary of the Army for
Civil Works (ASA/CW) and finally the Secretary of the Army. This process
could take 12 months or more. Under the new MOA, there is a one step
level of elevation to the ASA/CW. The ASA/CW will decide whether or not
the District Engineer's decision will be reviewed by a higher level and if
so the ASA/CW will decide the level for review i.e., the Division
Engineer, Chief of Engineers, or himself. This new process should take 3
months or less.
This briefly summarizes the major changes as we see them in 404. It
is important -to note that all these changes essentially involve a time
savings. These changes should give most applicants a quicker decision on
their permit application and enable the Corps to expend additional effort
on the more significant and complex projects. However, we are not
reducing the environmental or other factors which a district engineer must
consider when making a public interest decision on a permit application,
but close coordination will be required among the agencies to meet these
time guidelines and still fulfill the public interest review.
in
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IMPACTS OF 404 REGULATORY CHANGES ON THE
FISH AND WILDLIFE SERVICES'^REVIEW OF SECTION 10/404 PERMITS
Remarks by John Baumelster, Chief, Ecological Services
Fish and Wildlife Service
Atlanta, GA
The FWS has several legislative mandates for protecting fish and wildlife
resources including the Migratory Bird Conservation Act, Anadromous Fish
Act, Endangered Species Act, and Fish and Wildlife Coordination Act.
The Division of Ecological Services (ES) is responsible for commenting on
Corps of Engineer permits, and in the southeast, eleven ES field stations are
responsible for this activity. To date, the FWS has had a poor track
record in overturning decisions by Corps Districts to issue permits for
timber clearing and drainage operations for agricultural purposes. This
work has primarily been centered in the lower Mississippi River Valley.
The FWS endorses the basic concepts and goals associated with efforts
to expedite processing of Corps of Engineer permits. However, considerable
confusion and frustration have been experienced in dealing with rapid
changes in policy and procedures that have coincided with implementing
the new permit MOA. Specific problems include the difficulties interpreting
policies contained in the Corps Regulatory Guidance Letters and the lack
of opportunities for agencies to resolve issues after the Notice of Intent
to Issue is signed by District Engineers. The emphasis which has been
placed on issuing General permits to States has also created problems,
some of which could have been alleviated by informal coordination by the
Corps District prior to issuance of a public notice for the General
permit. FWS has expressed concerns relative to the ability of State
permitting agencies to adequately protect fish and wildlife resources
because of jurisdictional limitations. Of special concern are questions
relating to transfering Federal responsibilities for endangered species.
The FWS advocates the adoption of procedures currently used by the
Wilmington and Norfolk Corps Districts for processing General permits.
Until such time as firm criteria are developed by the Washington Office
regarding permit issues that can be elevated, the FWS will continue to
recommend referral on any permitted activity that would have significant
adverse effects on fish and wildlife population and their habitat.
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SYNOPSIS OF REVISIONS TO THE
SECTION 404 REGULATIONS AND GUIDELINES
On July 22, 1982, the Army Corps of Engineers published interim
final regulations for their regulatory programs under the River
and Harbor Act and Section 404 of the Clean Water Act. Revisions
to the interim final regulations were proposed in November 1982.
Changes to these regulations were prompted by the Presidential
Task Force on Regulatory Relief and included: a re-definition and
clarification of the scope of jurisdiction; increased emphasis on
the use of general permits for categories of similar discharge
activities; expansion of nationwide permits for discharges in
certain waters; and emphasis on the avoidance of duplicated
efforts among Federal and State agencies.
In a similar vein, changes to the Section 404(b) Guidelines have
been proposed by the Enviornmental Protection Agency, the agency
responsible for formulating the Guidelines in conjunction with
the Army Corps of Engineers. The proposed Guidelines have been
essentially re-written and include significant changes such as: a
new general definition of wetlands based on vegetation, soil, and
hydrological characteristics; specific delineations of jurisdic-
tional floodplain and arctic wetlands; a categorization of all
jurisdictional waters based on their relative importance in the
aquatic environment; and descriptions of various levels of review
to be applied when evaluating the impacts of discharges into the
various categories of waters.
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ATTENDEES OF EPA'S SIXTH ANNUAL ENVIRONMENTAL REVIEW CONFERENCE
OCTOBER 21-22, 1982
U. S. DEPARTMENT OF AGRICULTURE
Forest Service
Jean Paul Kruglewicz
U. S. Forest Service
1720 Peachtree St., N. W.
Atlanta, Georgia 30367
William R. Phelps
U. S. Forest Service
1720 Peachtree St., N. W.
Atlanta, Georgia 30367
Robert Spivey
U. S. Forest Service
1720 Peachtree St., N. W.
Atlanta, Georgia 30367
Robert Williams
U. S. Forest Service
1720 Peachtree St., N. W.
Atlanta, Georgia 30367
Soil Conservation Service
Bill F. Farmer
SCS
P.O. Box 27307
Raleigh, North Carolina 27611
John J. Garrett
SCS
P.O. Box 27307
Raleigh, North Carolina 27611
Louis M. Godbey
SCS
675 U.S. Courthouse
Nashville, Tennessee 37203
Max R. Goodman
SCS
P.O. Box 661
New Albany, Mississippi 38652
Comm. 404/881-2242
FTS. 257-2242
404/881-4663
257-4663
404/881-2242
257-2242
404/881-2242
257-2242
919/755-4527
672-4527
919/755-4527
672-4527
615/251-5473
852-5473
601/534-4251
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Fredrick Keeter
SCS
Suit 1321
100 West Capitol Street
Jackson, Mississippi 39269
Lloyd G. Laudenschlager
SCS
P.O. Box 6567
Ft. Worth, Texas 76115
Gary Margheim
SCS
P.O. Box 2890
Washington, D.C. 20013
Dr. John M. Safley, Jr.
SCS
P.O. Box 2890
Washington, D.C. 20013
Peter Smith
SCS
P.O. Box 2890
Washington, D.C. 20013
Don Stewart
SCS
P.O. Box 832
Athens, Georgia 30613
Ray Swicegood
SCS
P.O. Box 832
Athens, Georgia 30613
Bob Thompson
SCS
P.O. Box 311
Auburn, Alabama 36830
Farmers Home Administration
Warren B. dayman
Farmers Home Administration
Room 6313
South Building
Washington, D.C. 20250
U. S. DEPARTMENT OF INTERIOR
James H. Lee
U.S. Department of Interior
Room 1384
Richard Russell Federal Building
Atlanta, Georgia 30303
Comm. 601/960-5227
FTS. 490-5227
817/334-5287
334-5287
202/447-4912
447-4912
202/447-9529
447-9529
202/447-4912
447-4912
404/546-2116
250-2116
404/546-2116
250-2116
205/821-8070
534-4527
202/382-9656
382-9656
404/221-4524
242-4524
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Geological Survey
Clarence Robbins
Nashville District Comm. 615/251-5424
A-413, Federal Building
Nashville, Tennessee 37203
Fish and Wildlife Service
John Baumeister
Fish and Wildlife Service
75 Spring Street, S.W. Comm. 404/221-6343
Atlanta, Georgia 30303 FTS. 242-6343
Paul J. Burke
Fish and Wildlife Service
18th & C Streets 202/343-5685
Washington, D.C. 20240 343-5685
Richard Huber
Fish and Wildlife Service
75 Spring Street, S.W. 404/221-6343
Atlanta, Georgia 30303 242-6343
Marvin Moriarty
Fish and Wildlife Service
75 Spring Street, S.W. 404/221-6343
Atlanta, Georgia 30303 242-6343
DEPARTMENT OF DEFENSE
U. S. Army Corps of Engineers (Civil Works)
William R. Gianelli
Assistant Secretary of The Army
Civil Works
The Pentagon 202/697-8986
Washington, D.C. 20301 697-8986
LTC Dave Peixotto
Office, Assistant Secretary of
The Army
Civil Works
The Pentagon 202/697-8986
Washington, D.C. 20301 697-8986
South Atlantic Division
Kelly Hicks
COE, Savannah District
P.O. Box 889 912/944-5224
Savannah, Georgia 31402 248-5224
Eric A. Roberts
COE, Mobile District
P.O. Box 2288 205/690-2660
Mobile, Alabama 36628 537-2660
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John Rushing
COE, South Atlantic Division
Title Building, 30 Pryor Street Comm. 404/221-4580
Atlanta, Georgia 30303 FTS. 242-4580
David J. Wahus
COE, Savannah District
P.O. Box 889 912/944-5325
Savannah, Georgia 31402 248-5325
Frank Yelverton
COE, Wilmington District 919/343-4745
P.O. Box 1890 671-4745
Wilmington, North Carolina 28402
Lower Mississippi Valley Division
Sue Hawes
COE, New Orleans District
P.O. Box 60267 504/838-2516
New Orleans, Louisiana 70160 687-2516
Tom Heineke
COE, Memphis District
668 Federal Building 901/521-3857
Memphis, Tennessee 38103 222-3857
Jackie McKitrick
COE, Nashville District
P.O. Box 1070 615/251-5027
Nashville, Tennessee 37202 852-5027
Anna Payne
COE, Vicksburg District
P.O. Box 60 601/634-5856
Vicksburg, Mississippi 39180 542-5856
Tom Pullen
Lower Mississippi Valley Division
P.O. Box 80 601/634-5851
Vicksburg, Mississippi 39180 542-5851
Jim Savery
COE, Memphis District
668 Federal Building 901/521-3857
Memphis, Tennessee 38103 222-3857
Wade Whittinghill
COE, Nashville District
P.O. Box 1070 615/251-5027
Nashville, Tennessee 37202 852-5027
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North Atlantic Division
Bob Hume
COE, Norfolk District
803 Front Street
Norfolk, Virginia 23510
Ohio River Division
Terry Siemsen
COE, Louisville District
P.O. Box 59
Louisville, Kentucky 40205
Robert Woodyard
COE, Louisville District
P.O. Box 59
Louisville, Kentucky 40205
John S. Wright
COE, Huntington District
502 8th Street
Huntington, West Virginia
U. S. Air Force
Winfred G. Dodson
Air Force Regional Civil Engineer
526 Title Building
30 Pryor St., S.W.
Atlanta, Georgia 30303
David A. Glass
Air Force Regional Civil Engineer
526 Title Building
30 Pryor St., S.W.
Atlanta, Georgia 30303
U. S. Army
Ray Clark
USAMPS/CS ATZN-FEE
Fort McClellan, Alabama 36205
Alice G. Howard
Environmental Management Office
USAIC,ATZB-EH-EM
Fort Benning, Georgia 31905
Comm. 804/441-3657
FTS. 827-3657
Thomas E. Newkirk
HQ TRADOC,ATEN-FN
Fort Monroe, Virginia
502/582-6475
352-6475
502/582-6475
352-6475
304/529-5712
924-5712
404/221-6776
242-6776
404/221-6821
242-6821
23651
205/238-3758
229-3758
404/545-4766
804/727-3300
931-3300
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U. S. Navy
LCDR E. C. Rushing, Jr.
Officer in Charge of Construction
TRIDENT
NSSB Kings Bay, Georgia 31547
John C. Wilkins
SOUTHNAVFACENGCOM
P.O. Box 10068
Charleston, South Carolina 29411
U. S. DEPARTMENT OF TRANSPORTATION
U. S. Coast Guard
Marvin H. Barnes
Fifth Coast Guard District
431 Crawford Street
Portsmouth, Virginia 23705
Eric J. Wolfe
Seventh Coast Guard District.
51 S.W. 1st Avenue
Miami, Florida 33130
Federal Aviation Administration
T. M. Ackerman
FAA, ASO-620
P.O. Box 20636
Atlanta, Georgia 30320
Robert E. Harris
FAA, ASO-620
P.O. Box 20636
Atlanta, Georgia 30320
Elton Jay
FAA, JAN ADO
P.O. Box 6111, Pearl Branch
Jackson, Mississippi 39202
Robert Johnson
FAA, ASO-400
P.O. Box 20636
Atlanta, Georgia 30320
Wayne Miles
FAA, MEM ADO
P.O. Box 18621
Memphis, Tennessee 38118
Howard M. Robinson
FAA, ASO-620
P.O. Box 20636
Atlanta, Georgia 30320
Comm. 912/673-2303
Comm. 803/743-5510
FTS. 679-5510
804/398-9276
827-9276
305/350-5502
350-5502
404/763-7756
246-7756
404/763-7756
246-7756
601/960-4628
490-4628
404/763-7371
246-7371
901/521-3495
222-3495
404/763-7756
246-7756
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Travis B. Watson
FAA, ASO-620
P.O. Box 20636 Comm. 404/763-7756
Atlanta, Georgia 30320 FTS. 246-7756
Arthur K. Weathers
FAA, ASO-620
P.O. Box 20636 404/763-7631
Atlanta, Georgia 30320 246-7631
Federal Highway Administration
Ernest Brown
Regional Office
1720 Peachtree Road, Suite 200 404/881-4067
Atlanta, Georgia 30367 257-4067
Eugene W. Cleckley
Regional Office
1720 Peachtree Road, Suite 200 404/881-4067
Atlanta, Georgia 30367 257-4067
George H. Osborne
Regional Office
1720 Peachtree Road, Suite 200 404/881-4067
Atlanta, Georgia 30367 257-4067
Robert H. Talley
Regional Office
1720 Peachtree Road, Suite 200 404/881-4067
Atlanta, Georgia 30367 257-4067
Urban Mass Transportation
Jody B. Sloan
UMTA
1720 Peachtree Road, #400 404/881-7875
Atlanta, Georgia 30309 257-7875
STATE HIGHWAY DEPARTMENTS
Alabama
Bill G. Carwile
Alabama Highway Department
11 S. Union Street 205/832-5593
Montgomery, Alabama 36130
Georgia
Toni Gardner
Georgia Department of Transportation 404/696-4634
65 Aviation Circle
Atlanta, Georgia 30336
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Al Harris
Georgia Department of Transportation
65 Aviation Circle
Atlanta, Georgia 30336
Peter Malphurs
Georgia Department of Transportation
65 Aviation Circle
Atlanta, Georgia 30336
Paul Stiemke
Georgia Department of Transportation
65 Aviation Circle
Atlanta, Georgia 30336
Mississippi
W. K. "Bill" Magee
Mississippi State Highway Department
5345 Balmoral Drive
Jackson, Mississippi 39211
North Carolina
Archie Hankins
North Carolina Department of Transportation
1 South Wilmington Street
Raleigh, North Carolina 27611
B. J. O'Quinn
North Carolina Department of Transportation
1 South Wilmington Street
Raleigh, North Carolina 27611
Tennessee
Comm. 404/696-4634
404/696-4634
404/696-4634
601/354-7355
919/733-7842
919/733-7842
Charles Bush
Tennessee Department of Transportation
Suite 900 Polk Building
Nashville, Tennessee 37219
U. S. NUCLEAR REGULATORY COMMISSION
Daniel R. Muller
NRC
Washington, D.C. 20555
DEPARTMENT OF ENERGY
William E. Wisenbaker, Jr.
DOE
P.O. Box A
Aiken, South Carolina 29801
615/741-3653
301/492-4845
492-4845
803/725-3970
239-3970
121
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TENNESSEE VALLEY AUTHORITY
John P. Crowder
TV A
110 OSWHA-M Comm. 205/386-2971
Muscle Shoals, Alabama 35660 FTS. 872-8971
John Thurman
TVA
P.O. Box 546 615/632-2004
Morris, Tennessee 856-2004
FEDERAL ENERGY REGULATORY COMMISSION
730 Peachtree Street, Room 500 404/881-4134
Atlanta, Georgia 30308 257-4134
John H. Askew
Robert W. Crisp
Donald E. Hyatt
Herbert D. Patrick
Lorance W. Yates
HOUSING AND URBAN DEVELOPMENT
Richard L. Bailey
DHUD, Region IV
75 Spring Street, S.W. 404/221-5151
Atlanta, Georgia 30303 242-5151
Gayle F. Burbidge
DHUD, Region IV
75 Spring Street, S.W. 404/221-5151
Atlanta, Georgia 30303 242-5151
Ivar Iverson
DHUD, Region IV
75 Spring Street, S.W. 404/221-4096
Atlanta, Georgia 30303 242-4096
122
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Russell Jacobsen
DHUD, Region IV
75 Spring Street, S.W. Comm. 404/221-4096
Atlanta, Georgia 30303 FTS. 242-4096
Lamar Littleton
DHUD, Region IV
75 Spring Street, S.W. 404/221-5151
Atlanta, Georgia 30303 242-5151
Louise MacComb
DHUD, Region IV
75 Spring Street, S.W. 404/221-5151
Atlanta, Georgia 30303 242-5151
John Ogden
DHUD, Region IV
75 Spring Street, S.W. 404/221-5151
Atlanta, Georgia 30303 242-5151
Florida
Buddy E. Arbuckle
Jacksonville Area Office
325 W. Adams Street 904/791-3176
Jacksonville, Florida 32202 946-3176
Robert L. Crews
Jacksonville Area Office
325 W. Adams Street 904/791-2610
Jacksonville, Florida 32202 946-2610
Sydney M. Smith
DHUD
3001 Ponce De Leon Blvd. 305/447-3066
Coral Gables, Florida 33134 350-3066
Georgia
James V. Spann
Atlanta Area Office
75 Spring Street, S.W. 404/221-4037
Atlanta, Georgia 30303 242-4037
Harry Walls
Atlanta Area Office
75 Spring Street, S.W. 404/221-4036
Atlanta, Georgia 30303 242-4036
123
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South Carolina
William S. Stoken, Jr.
DHUD
1835-45 Assembly Street
Columbia, South Carolina 29201
Tennessee
Dick Becker
DHUD
1111 Northshore Drive
Knoxville, Tennessee 37919
Steve Shields
DHUD
1111 Northshore Drive
Knoxville, Tennessee 37919
GENERAL SERVICES ADMINISTRATION
A. Elaine Gilbert
GSA
75 Spring Street, S.W.
Atlanta, Georgia 30303
VETERANS ADMINISTRATION
Comm. 803/765-
FTS. 677-
5595
5595
615/558-
854-
•1344
•1344
615/558-1344
404/221-
242-
•3080
•3080
Jon E. Baer
VA
811 Vermont Avenue
Washington, D.C. 20420
COUNCIL ON ENVIRONMENTAL QUALITY
A. Alan Hill, Chairman
Council on Environmental Quality
722 Jackson Place, N.W.
Washington, D.C. 20006
Dinah Bear
Council on Environmental Quality
722 Jackson Place, N.W.
Washington, D.C. 20006
202/389-
389-
3316
•3316
202/395-
395-
202/395-
395-
5080
5080
5780
•5780
U. S. ENVIRONMENTAL PROTECTION AGENCY, WASHINGTON, D.C.
Michael L. Privitera
Special Assistant to the Director
Office of Federal Activities (A-104)
Environmental Protection Agency
401 M Street, S.W. " 202/382-
Washington, D.C. 20460 382-
•5053
5053
124
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U. S. ENVIRONMENTAL PROTECTION AGENCY, REGION IV
345 Courtland Street
Atlanta, Georgia 30365
Charles R. Jeter
Regional Administrator
Ronald Allen
Regional Council's Office
Ted Bisterfeld
NEPA Compliance Section
Craig Bromby
Regional Council's Office
Patsy Brooks
NEPA Compliance Section
Robert Cooper
NEPA Compliance Section
Wesley "Bo" Crum
NEPA Compliance Section
Dario Dal Santo
NEPA Compliance Section
Clara J. DeLay
Environmental Review Section
Larry Dunning
Air & Hazardous Waste
Beverly Ethridge
Environmental Review Section
James Finger, Director
Environmental Services Division
Robert Green
Regional Council's Office
E.T. "Red" Heinen, Director
Environmental Assessment Branch
Eric Hughes
Environmental Review Section
David Hopkins
Energy Coordinator
Comm.
FTS.
404/881-4727
257-4727
404/881-3056
257-3056
404/881-3776
257-7901
404/881-3506
257-3506
404/881-3776
257-3776
404/881-3776
257-3776
404/881-3776
257-3776
404/881-3776
257-3776
404/881-
257-
404/881-
257-
404/881-
257-
404/546-
250-
404/881-
257-
404/881-
257-
404/881-
257-
404/881-
257-
•7901
•7901
•3966
•3966
•7901
•7901
-3136
-3136
-2335
-2335
-7901
-7901
-7901
-7901
-3776
-3776
125
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Robert B. Howard, Chief
NEPA Compliance Section
Bill Kruczynski
Environmental Review Section
Stephanie Lankford
NEPA Compliance Section
Arthur Linton
Coordinator, Federal Activities
John "Alec" Little
Deputy Regional Administrator
Allen Lucas
Environmental Review Section
Comm. 404/881-3776
FTS 257-3776
404/881-7901
257-7901
404/881-3776
257-3776
404/881-3776
257-3776
404/881-4728
257-4728
404/881-7901
257-7901
Howard Marshall
Environmental Review Section
Joe McEnerney
Environmental Review Section
404/881-7901
257-7901
404/881-7901
257-7901
Ronald Mikulak
NEPA Compliance
Gerald Miller
Environmental Review Section
Sheppard N. Moore, Chief
Environmental Review Section
Brad Nicolajsen
Environmental Review Section
Lisbet Phillips
Environmental Review Section
Reginald Rogers
Environmental Review Section
Susan Schub
Regional Council's Office
Calvin C. Taylor
Policy & Program Evaluation Branch
Chuck Wakamo
Radiation
Howard Zeller
Assistant Regional Administrator
for Policy and Management
404/881-3776
257-3776
404/881-7901
257-7901
404/881-7901
257-7901
404/881-7901
257-7901
404/881-7901
257-7901
404/881-7901
257-7901
404/881-3506
257-3506
404/881-2140
257-2140
404/881-3936
404/881-3476
257-3476
126
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Hagan Thompson Comm,
Public Awareness FTS
Jean Tolman
NEPA Compliance Section
Paul Traina, Director
Water Management Division
Oscar J. Webster
Environmental Review Section
Betty Willis
Air & Hazardous
U. S. ENVIRONMENTAL PROTECTION AGENCY, REGION V
Barbara Taylor Beckley
230 S. Dearborn
Chicago, Illinois 60604
Barry C. DeGraff
230 S. Dearborn
Chicago, Illinois 60604
FEDERAL EMERGENCY MANAGEMENT AGENCY
404/881-3004
257-3004
404/881-3776
257-3776
404/881-4450
257-4450
404/881-7901
257-7901
404/881-3433
257-3433
886-6690
886-6690
Glenn C. Woodard, Jr
1375 Peachtree St., NE
Atlanta, Georgia
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
Elizabeth Knorr
200 Independence Avenue
Washington, D.C. 20201
U.S. DEPARTMENT OF COMMERCE
Paul L. Ringold
NOAA
Washington, D.C.
National Marine Fisheries Service
Richard J. Hoogland
9450 Roger Blvd.
St. Petersburg, Florida
Economic Development Administration
John C. Cole
EDA
1365 Peachtree Street, N.E.
Atlanta, Georgia 30309
404/881-2391
257-2391
202/472-9740
472-9740
202/377-5181
377-5181
813/893-3503
826-3503
404/881-7861
257-7861
127
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David Maney
EDA
Main Commerce Building, 6089 Comm. 202/377-4208
Washington, D.C. FTS. 377-4208
MINERALS MANAGEMENT SERVICE
Mary R. Bartz
3301 N. Causeway 504/589-6541
Mataeru, Louisiana 70002
William Johnstone
3301 N. Causeway 504/589-6541
Mataeru, Louisiana 70002
STATE GOVERNMENTS
Alabama
Robert W. Cooner
Department of Environmental Management 205/277-3630
2721 Gunter Park Drive
Montgomery, Alabama 36109
Timothy J. Hamilton
East AL Regional Plannning & Development
Commission 205/237-6741
P.O. Box 2186
Anniston, Alabama 36202
Florida
Marion DeGrove
Jacksonville Air Pollution Control 904/633-3303
515 W. Sixth Street
Jacksonville, Florida 32206
Pat Dugan
Florida Department of Environmental
Regulation 904/488-0190
2600 Blair Stone Rd.
Tallahassee, Florida 32301
Lynn Griffin
Florida Department of Environmental
Regulation 904/488-0190
2600 Blair Stone Rd.
Tallahassee, Florida 32301
128
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Suzanne P. Walker
Florida Department of Environmental
Regulation Comm. 904/488-0130
2600 Blair Stone Rd .
Tallahassee, Florida 32301
Georgia
Chuck Badger
Georgia State Clearing House 404/656-3855
270 Washington Street
Atlanta, Georgia 30334
Joe Crenshaw
Fulton County 404/525-0416
8 Newport Place NW
Atlanta, Georgia 30318
Bill Dempsey
Fulton County 404/525-0416
8 Newport Place NW
Atlanta, Georgia 30318
Randall Jones
Dept. of Natural Resources
270 Washington Street 404/656-3855
Atlanta, Georgia 30334
F. William Kroeck
Atlanta Regional Commission 404/656-7700
100 Edgewood Ave., Suite 1801
Atlanta, Georgia 30335
Sam Williams
Georgia State Clearing House 404/656-3855
270 Washington Street
Atlanta, Georgia 30334
Nancy Leathers
Fulton County Planning 404/525-0416
165 Central Avenue
Atlanta, Georgia 30335
Beverly Rhea
Atlanta Regional Commission 404/656-7700
100 Edgewood Ave., Suite 1801
Atlanta, Georgia 30335
Chris White
Dept. of Natural Resources
270 Washington Street 404/656-3855
Atlanta, Georgia 30334
129
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Mississippi
Barbara Kleiss
Mississippi Bureau of Pollution Control
P.O. Box 10385
Jackson, Mississippi 39209
James Morris
Mississippi Bureau of Pollution Control
P.O. Box 10385
Jackson, Mississippi 39209
North Carolina
William L. Flournoy, Jr.
N. C. Department of Natural Resources
and Community Development
P.O. Box 27687
Raleigh, North Carolina 27611
South Carolina
M. Elizabeth Crum
S.C. Attorney General's Office
P.O. Box 11549
Columbia, South Carolina 29211
Walton J. McLead
General Council
SCDHEC
2600 Bull Street
Columbia, South Carolina 29201
Rick Wilson
S.C. Attorney General's Office
P.O. Box 11549
Columbia, South Carolina 29211
Tennessee
Dale Overton
Northwest Tennessee Development
District
P.O. Box 63
Martin, Tennessee 38237
Saralee W. Terry
Tennessee State Planning Office
1800 James K. Polk
Nashville, Tennessee 37212
Comm. 601/961-5171
601/961-5171
919/733-6376
803/758-2072
803/758-5658
803/758-2072
901/587-4213
615/741-2168
130
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NONGOVERNMENTAL AGENCIES AND PRIVATE INDIVIDUALS
David A. Adams
Dept. of Forestry
N.C. State University
Raleigh, North Carolina
27607
Gene P. Allen, Vice President
Information Resources Press
1700 N. Moore St., Suite 700
Arlington, Virginia 22209
Bruce H. Bauer
Soil Systems Inc.
525 Webb Industrial Drive
Marietta, Georgia 30062
Charles Biddinger
Alabama Pov.'er Company
P.O. Box 2641
Birmingham, Alabama 35291
James H. Coil, Jr.
Associated Industries of Alabama
P.O. Box 31005
Birmingham, Alabama 35222
Ralph Cooper
Battelle Columbus Laboratories
505 King Avenue
Columbus, Ohio 43201
T.V. Crawford
Dupont - SRP
773-18A, SRL
Aiken, South Carolina 29808
Comm. 919/737-2891
703/558-8270
404/424-6200
205/252-9115
205/342-6523
614/424-6497
803/725-2350
John A. Davis, Ph.D.
Breedlove Associates, Inc
618 N.W. 13ath Avenue
Gainesville, Florida 32601
Norbert Dee
Law Engineering
2749 Delk Road
Marietta, Georgia 30067
904/377-5830
404/952-9005
131
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Jan Dillard
WAPORA, Inc.
5980 Unity Drive, Suite F
Norcross, Georgia 30071
David R. Dingle
National Weather Service
2298 Desmond Drive
Decatur, Georgia 30033
Jack Doolittle
Environmental Science & Engineering
P.O. Box ESE
Gainesville, Florida 32602
Edward L. Findley
Findley & Company
976 Viscount
Avondale, Georgia 30002
Richard Hamann
College of Law
University of Florida
Gainesville, Florida 32611
Judy Hancock
P.O. Box 2436
Lake City, Florida
32055
R. Michael Hartman
Envirosphere Company
145 Technology Park
Norcross, Georgia 30338
Eric Heald
Tropical Bio Industries, Inc.
9869 E. Fern Street
Miami, Florida 33157
Milton Heath
Institute of Government
UNC at Chapel Hill
Chapel Hill, North Carolina
27514
Jay J. Hill
P.O. Box 39
Ashland, Kentucky
Comm. 404/447-4433
404/762-1186
904/372-3318
404/292-3757
904/392-2237
904/752-5886
404/449-6639
305/255-5732
919/962-2211
606/329-4389
41101
132
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Raymond L. Hinkle
Woodward-Clyde Consultants
201 Willowbrook Blvd.
Wayne, New Jersey 07^70
Jerry Hitzemann
WAPORA, Inc.
5980 Unity Drive, Suite F
Norcross, Georgia 30071
Barbara A. Hogan
Soil Systems, Inc.
525 Webb Industrial Drive
Marietta, Georgia 30062
Don Holder
Georgia Power Company
333 Piedmont Avenue
Atlanta, Georgia 30308
Luther F. Holloway
Holloway Environmental Services, Inc
101 Willow Glenn Dr
Vicksburg, Mississippi 39180
W.G. Holmes
Dupont - SRP
773-13A, SRL
Aiken, South Carolina 29808
Jim Jackson
Envirosphere Company
145 Technology Park
Norcross, Georgia 30338
Dr. Eike Jordan
German American Chamber of Commerce
233 Peachtree St.
Atlanta, Georgia 30303
William W. Kirby-Smith
Duke University
Marine Laboratory
Beaufort, North Carolina 28516
Comm. 201/785-0700
404/447-4433
404/424-6200
404/526-7092
601/636-4848
803/725-2350
404/449-6639
404/577-7228
919/728-2111
133
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H.E. Mackey
Dupont-SRP
773-18A, SRL
Aiken, South Carolina 29808
Barton Marcy
NUS Corporation
37 Harden Drive
Aiken, South Carolina 29801
Charles McCrary
Alabama Power Company
P.O. Box 2641
Birmingham, Alabama 35291
Susan C. McMillan
Battelle Columbus Laboratories
505 King Avenue
Columbus, Ohio 43201
Dean Miracle
Georgia Power Company
333 Piedmont Avenue
Atlanta, Georgia 30308
J.S. Murdock
Dupont-SRP
773-18A, SLR
Aiken, South Carolina 29808
Mike Opalinski
Seminole Electric Cooperative, Inc.
P.O. Box 27200
Tampa, Florida 33681
jack H. Pyborn
EDAW
2000 Clearview Ave., Suite 102
Atlanta, Georgia 30340
H. Clayton Robertson
Conservation Consultants, Inc.
P.O. Box 35
Palmetto, Florida 33561
Comm. 803/725-2350
803/649-7963
205/252-9115
614/424-6513
404/526-7093
803/725-2350
813/963-0994
404/457-0140
813/722-6668
134
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Dr. Robert N. Saveland
University of Georgia Comm. 404/542-7266
203 Dudley Hall
Athens, Georgia 30602
William A. Schimming
CF Industries, Inc 813/533-3181
P.O. Box 1480
Bartow, Florida 33830
Lowell Schuknecht
Envirosphere Company 404/449-5800
145 Technology Park
Norcross, Georgia 30092
Ecology & Environment, Inc. 404/288-7711
4319 Covington Highway, Suite 312
Decatur, Georgia 30035
Jack Scott
Mac Craman
Roger Franklin
Jeff Hundley
Cris Leggett
Jennifer Scott-Simpson
Neil Strickland
J. Owens Smith
Marine Science Program 404/542-7266
University of Georgia
Athens, Georgia 30602
Bob Stevens
WAPORA, Inc. 404/447-4433
5980 Unity Drive, Suite F
Norcross, Georgia 30071
Arthur J. Toompas
Cone Mills Corporation 919/397-6579
1201 Maple Street
Greensboro, North Carolina 27405
James T.B. Tripp
Environmental Defense Fund, Inc. 212/686-4191
444 Park Avenue South
New York, New York 10016
135
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John R. Twitchell
Seminole Electric Cooperative, Inc. Comm. 813/963-0904
P.O. Box 27200
Tampa, Florida 33681
Alden J. Vasquez, Manager
Information Resources Press 703/558-8270
1700 N. Moore Street, Suite 700 '
Arlington, Virginia 22209
P. Don Weaver, Jr.
Resource Planning, Inc.
1441 E. Fletcher, Suite 2000 813/949-2631
Tampa, Florida 33612
James R. Wilson
Soil Systems, Inc. 404/424-6200
525 Webb Industrial Drive
Marietta, Georgia
Nancy Winchester, Associate Editor
Information Resources Press 703/558-8270
1700 N. Moore St., Suite 700
Arlington, Virginia 22209
Bob Woodall
Georgia Pov/er Company 404/526-7108
333 Piedmont Avenue
Atlanta, Georgia 30308
Jane H. Yarn
881 W. Conway Road 404/237-2344
Atlanta, Georgia 30327
136
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