U.S. Environmental Protection Agency
Wetlands
Seminar
March 28-29, 1990
Washington, D.C. /Alexandria, VA
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INDEX
Inside Front Cover Protecting America's Wetlands
An Action Agenda - The Final
Report of the National
Wetlands Policy Forum
TAB
A Agenda
B Huntley Meadows Field Trip - Background
C Background on Case Studies
D The President's Challenge
E Summary of Major Recommendations of the National Wetlands
Policy Forum
F Office of Wetlands Protection Organization Chart
G Wetlands Fact Sheet
H Section 404 Program
1. Highlights of Section 404
2. Migratory Bird Memo
3. MOA's: mitigation, enforcement, jurisdiction
4. Corps' (q) guidance: Plantation Landing and Hartz
Mountain
I EPA's Non-regulatory Programs
1. State, Tribal and Local
2. Federal Agencies
3. International
4. Internal EPA
5. Wetland Strategic Initiatives
6. Wetlands Science
Inside Back Cover: Booklet: America's Wetlands
Our Vital Link Between'Land
and Water
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A
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John Meagher 9 OWP
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF
MAR 22 1990 WATER
MEMORANDUM
SUBJECT: Seminar on Wetlands
FROM: LaJuana S. Wilcher
Assistant Administrator
TO: Regional Administrators I-X
Assistant Administrator
Office of Research and Development
Assistant Administrator
Office of Enforcement and Compliance Monitoring
General Counsel
Attached is a proposed agenda for the March 28-29 seminar on
wetlands in Headquarters. We want to get as much benefit as we
possibly can out of this opportunity. Therefore, the agenda is
fairly intensive, and involves dinner together on the evening of
March 28 with discussion to follow.
You will be receiving background materials for the seminar
under separate cover. You will first receive information we have
already assembled, with a second delivery to follow of materials
that are still being prepared.
I am looking forward to a highly producive discussion.
— Please call me, Alan Fox (382—5700) or John Meagher (382-5043)
if you have any questions.
Attachment
cc: William K. Reilly
F. Henry Habicht II
Gordon Binder
Judy Gleason
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DRAFT
SEMINAR ON SECTION 404: AGENDA
MARCH 28 LOCATION: G1 NGPLANX RESTAURANT (Halyard Room)
1:00 - 1:15 Introduction (LaJuana Wilcher)
1:15 - 2:15 Background presentation on Wetlands (Dave Davis)
—— Wetland types (ecological and geographic
diversity)
-- Functions and values
-- Activities and impacts
—- Status (losses and trends)
2:15 — 3:15 Section 404 Program Background (Suzanne Schwartz)
-— Program overview (how the pieces fit)
-- Basic permitting process (individual and
general permits, public notice, public
interest review, NEPA)
—— Jurisdiction (geographic, activities)
—— (b)(l) Guidelines (alternatives, mitigation,
significant degradation)
3: 1.5 — 3:30 Scientific aspects of mitigation (Erich
Bretthauer) (Tentative)
3:30 - 4:00 Current Legal Issues (Don Elliott) (Tentative)
4:15 DEPART for Field Site (Huntley Meadows,
Alexandria, Virginia)
5:15 - 6:30 Wetlands Walk - a guided nature walk to provide
on the ground wetland experience
6:30 - 8:00 Dinner -- Cedar Knoll Inn (Log Room)
(703) 360—7880
George Washington Parkway
Mt. Vernon, Virginia
8:00 - 8:30 Section 404 Program Background - Continued
— - Elevation and veto (404 (q) and Cc))
-- Advance identification
-- Enforcement
8:30 — 9:00 Enforcement Issues (Jim Strock)
9:00 Return trip back to D.C.
MARCH 29 LOCATION: Room 1103 West Tower
8:00 — 11:00 Case Studies - group discussions facilitated by
written cases. (Bill Reilly and all
participants)
11:00 — 11:30 Wrap—up
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B
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C
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FACT PAYFERN - CASE 1 TAB C
The Water Resources Development Act of 1980 authorized the Corps of
Engineers to pursue a multipurpose reservoir project on the Calfpasture River, in Vista
County, subject to the recommendations and conditions in a Chief of Engineers’ Report
prepared in 1965. While the Civil Works proposal included other features, the primary
benefit of the project would be the storage of water in an arid western state where
precipitation is seasonally limited. As proposed in the 1965 report, the stored water
would be used principally for future municipal water supply and industrial applications.
The site of the proposed impoundment was, to a large degree, on Bureau of
Reclamation land which experienced limited use as grazing land during the 1930s and
40s. In 1945, Vista County petitioned the Bureau to set the site aside in anticipation of
creating a water supply impoundment, and the area has since experienced little change.
As a result of the WRDA 80 authorization, the Corps prepared a draft
Environmental Impact Statement in 1982 which disclosed that the proposal would
inundate 20 miles of highly productive co ldwater stream containing a self-sustaining fish
population, would flood several abandoned mines, and would limit use of the river
valley by a small herd of big horn sheep. The DEIS contained a brief review of the
project’s compliance with the Section 404(b)(1) Guidelines. EPA formally commented
on the DEIS noting that the project would likely result in the loss of 12 acres of
wetland and wildlife habitat and could adversely impact water quality both within the
impoundment area and downstream due to drainage from the mine waste. EPA stated
the position that the Agency had environmental objections to the project as proposed in
the DEIS (an EO rating). As a result of comments on the DEIS from EPA and other
Federal agencies, the Corps determined that preparation of a supplemental EIS was
necessary. Due to fiscal constraints, however, funding for further work was not included
in subsequent Corps budgets.
In 1988, after several years of abnormal nationwide precipitation deficits,
renewed concern regarding adequacy of future water supplies prompted the Vista
County Board of Water Planners to approach the Corps and request a Section 404
permit to construct a dam and reservoir of virtually the same design and configuration
as the proposed Civil Works project. Under the new proposal the project would be
completed using only State and local funds. Upon reviewing the Vista County proposal,
the Corps determined that additional ELS studies were not necessary because the
project was no longer a multi-purpose Federal proposal and as such did not constitute a
major Federal action for the purpose of NEPA. Vista County submitted a permit
application which incorporated much of the needs analysis provided in the previous
Corps EIS and updated information on potential adverse environmental impacts.
The public notice on the permit application stated that the purpose and need of
the project was the construction of a water supply impoundment on Calfpasture River
to satisfy future municipal and industrial water demand in the area served by the Vista
County Water Authority. Alternatives to satisfy that need would be considered by the
Corps.
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In addition to environmental issues raised in the previous DEJS, comment on the
proposed Section 404 permit raised issues regarding environmental values associated
with extensive riparian habitat which would be lost as a result of the reservoir.
Riparian areas are a dwindling resource in Vista County and surrounding areas due to
poor range management practices allowing cattle unrestricted use of streams. As a
result water quality has declined substantially in other local waters and Calfpasture
River is one of the few remaining free flowing streams with good water quality and
superior natural aquatic and terrestrial wildlife habitat. The coldwater fish population is
unique to the County, and one of only three such streams in the State. Both EPA and
Fish and Wildlife Service noted that the impoundment would significantly alter the
downstream water quality through reductions in flow and alterations of water chemistry
from mine waste drainage. EPA also commented that the basic project purpose and
need should be reviewed because of possible changes in both the volume of industrial
and municipal water use, innovations in industrial and municipal water conservation,
and the possibility that groundwater has not been adequately reviewed as a potential
alternative. EPA has recommended that as proposed, the permit should be denied and
that the Agency may consider action to prevent the project impacts. The State Water
Quality Board approved 401 certification for the project. The Bureau of Reclamation
has deferred a decision regarding use of the land to the Corps as the lead Federal
Agency.
EPA and the Corps have entered discussions regarding the permit application.
Because the project remains an authorized public works project the District Engineer
has both his planning and regulatory divisions advising him on various aspects of the
project. In response to meetings with EPA and the applicant the Corps has made the
following draft findings and forwarded them to EPA for consideration. 1) The project
will impact only 12 acres of wetlands and is therefore not significant in terms of
resources protected by Section 404. 2) While water quality will be impacted, the State
has issued 401 certification and further discussion of issues related to water quality are
irrelevant. 3) The project purpose is an impoundment for the storage of water and
analysis of alternatives is justifiably limited to structural options of similar yield. 4)
Because the project has received Congressional authorization, EPA ’s authority to stop
the project is limited at best. Further, the Corps’ planning division would consider
proceeding with the project if the County decides not to.
Issues
- What options are available regarding NEPA compliance?
- In commenting on the §404 permit, can EPA raise issues other than impacts to
wetlands?
- Can EPA take action to protect valuable riparian habitat that does not meet the
definition of ‘ t wetlands”?
- Can EPA raise water quality issues despite the State’s 401 Certification?
- Can EPA continue to raise alternatives issues?
- Is EPA’s § 404(c) authority applicable in this case?
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FACT PA YFERN - CASE 2
An enforcement action has been brought to you for immediate attention.
Mr. D.A. Crop and his attorney have requested a meeting to bring to your attention
harassment and misapplication of the enforcement procedures on the part of your staff.
Your staff is in the process of preparing the necessary paperwork to refer the case to
DOJ.
The alleged violation occurred in a large prairie pothole located within a major
waterfowl flyway. According to Mr. Crop, during four excessively dry years, he
proceeded to plow and plant corn within the depression (as he terms it) without
farming down to the wetter areas. When seasonal rains this year threatened to
significantly shorten the desired growing season and, therefore, threaten Mr. Crop’s
corn, he proceeded to deepen an old drainage ditch, with deposition of the ditch
material adjacent to the ditch.
Mr. Crop maintains that the depression is now part of his farming operation, and
he should be allowed to use the drainage ditch to keep it in corn. He’s afraid that loss
of the corn in the depression may make his farming operation unprofitable for the year.
Mr. Crop’s attorney informs you that Mr. Crop has been farming up to the edges,
of the old ditch for at least eight years. There has been no indication of any wetlands
vegetation growth on that area for that time period. The attorney argues, therefore,
that the hydrology has been altered, the vegetation is no longer normally hydrophytic,
and the banks of the ditch are therefore not wetlands. Therefore, he claims that we
have no Clean Water Act jurisdiction where the fill was deposited. With respect to the
pothole, he argues that we should only regulate the always - wet parts of it, since the
old ditch modified the hydrology, even though hydrophytic vegetation has returned to
the other parts of it in this year’s rainy season. Further, he claims that the pothole and
the land adjacent to the ditch are part of Mr. Crop’s ongoing farming operation, and so
even if we do find that there was a discharge into waters of the U.S., the activity was
exempt under Section 404(f).
Your staff advises that Mr. Crop may have, indeed, been farming wetlands
during the dry years, but that the hydrology of the pothole and the land next to the
ditch was never significantly modified. The ditch in question is old and has not been
regularly maintained. Mr. Crop says that when he deepened the ditch it was normal
farming practice, and he was only maintaining an existing ditch. Your staff say that Mr.
Crop was removing material from the ditch which had accumulated over 25 years, and
was also increasing the capacity of the ditch by 113 to 1/2, in order to drain the pothole
for the first time.
Finally, Mr. Crop’s attorney says that without the deepened ditch, Mr. Crop will
lose that part of his corn and will not make a profit this year. Further, the Farmer’s
Almanac predicts very heavy rains over the next decade, and so Mr. Crop believes that
if he can’t finish this project he will no longer be able to make a living on his farm.
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His attorney assures you that if the ditch is not deepened soon they will sue for a
temporary taking; if he can’t deepen the ditch at all, they will sue for compensation for
the full value of the farm.
Issues
- Which, if any, parts of Mr. Crop’s farm are regulated waters of the U.S. ?
• Is there a Section 404 discharge?
- Is Mr. Crop’s ditching activity exempt under 404(f) 7
- How legitimate do the takings allegations appear to be? How should they affect
the decision?
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FACT PATI’ERN - CASE 3
Philip “Phil ” Smith has applied for a Section 404 permit to construct a driveway
and garage on his land in Backwater County, one of the “swampiest 1 ’ counties in the
State. Mr. Smith’s house and lot lie at the corner of Easy Street, a main thoroughfare
north of Phil’s house which passes over Aural canal (which bounds his property on the
east), and Pothole Path, a dead end street west of Phil’s house which intersects Easy
Street. His plan calls for a 100 yard driveway off of Easy street along Aural canal to
the back of his property. The driveway would terminate at the rear of Phil’s house
where he plans to build a garage and mudroom for his wife Peg, who is currently in a
wheelchair because of a recurring bunion problem, which regularly requires surgery.
Phil’s house is in a development which is relatively new and in an area that has no
public services, such as sewer connections. Because of potential water quality problems
associated with septic systems and runoff from lawn treatment, lots are only sold in 10
acre increments at a price which Phil was just barely able to afford a year ago when
mortgage rates were at 3%. Most lots are jurisdictional wetlands, but a few remaining
unsold lots, including the one just south of Phil, contain uplands. While Phil ’s lot is all
“wetland,” the southwest portion of the lot is lower quality rat reed Rattus grassus, and
the area along the back of his lot, along Aural canal, supports a sterling band of
American Flag grass Saluticus aiwaysius. The builder who developed the area was
required to develop a wetlands mitigation bank for losses associated with home
construction. Despite the high proportion of wetlands in this area, the County zoned
the area for residential use, in part to offset conservation set-asides of high-value
wetlands of other types in other parts of the County.
Phil has planned his driveway to allow him to turn off of Easy Street rather than
wait at the street light at the intersection with Pothole Path. He also wants to place his
garage adjacent to the house in order to be able to get Peg as close to the house as
possible. It seems her wheelchair is relatively useless in the “mucky” yard. In all, the
proposal would take 3.5 acres of high quality wetland for the driveway, and .5 acres of
rat reed for the garage. Phil notes that other houses have garages and not allowing
him to build one will decrease the value of his house, and that any upland lots are too
far away and too expensive. If he cannot build a drive and garage adjacent to the
house, he says he may have to sell his lot at a loss.
The Corps is in a quandary because of their general misgivings about any further
loss of wetlands in the area, particularly Saluticus aiwaysius wetlands, but they
understand Peg’s problem. They have issued the public notice, but have suggested an
interagency meeting to try to address the issues they expect the other agencies to raise.
Issues
- Does the permit have to be denied because there are uplands in the vicinity (in
fact, on an adjacent plot)?
- Are there possible options other than issue as proposed or deny? ...regarding
alternatives? . .. regarding mitigation?
- How much weight should be accorded the County’s zoning of this area?
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Artistic rendering of Case 3
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FACT PATTERN - CASE 4
The project is proposed in the Smith estuary. Having been accepted in EPA’s
National Estuary Program, studies have been done, public meetings and workshops held
and a Management Committee formed which includes EPA on its membership. The
Committee has produced a document of its findings and recommendations. The
Committee found that, although the Smith estuary sustains a large commercial and
recreational fish and shellfish industry, BOD inputs, combined with the estuary’s
hydrology, causes the DO concentration to fall below the level of 5.0 mg/I established
by the State Water Quality Department as necessary to maintain the designation of Fish
and Wildlife Waters under state statute. In addition, in recognition of the established
urban decay currently taking place in Smithville, which is adjacent to the estuary, the
Committee recognized that opportunities should be provided for reasonable economic
development, consistent with maintaining the fish and shellfish population and
improving the water quality. No specific plans for these have yet been developed.
Smithville has had plans tabled for years for two projects, a convention center
and a sports complex. The regionally recognized firm of Fill, Inc. has approached
Smithville with a proposal for an integrated convention center/sports complex with a
water-based component to increase the complex’s tourist draw and enhance the public. s
appreciation of Smith Estuary. In return for its services, which include obtaining the
necessary permits as well as the design, construction and management of the complex,
Fill, Inc. will obtain site ownership.
The project involves the filling of approximately 125 acres of high quality
wetlands which, in conjunction with the adjacent 100 acres of uplands (resulting from
Corps dredging and disposal operations) will provide sufficient area for the project.
The water-based component includes a maritime museum, a restaurant, shoreline
walkway and slips for an estuary tour boat and historic marine craft. The wetlands at
issue are vegetated with regularly inundated emergent and secondary emergent and
scrub shrub vegetation in addition to approximately 25 acres of forested wetlands which
are part of an additional 150 acres of forested wetlands outside the project’s
boundaries. The entire 275 acre wetland area is separated by an old road and
dilapidated industrial section from a wetlands complex which is adjacent to a National
Wildlife Refuge.
As mitigation for wetlands losses, Fill, Inc. has offered to raze the dilapidated
buildings and the associated road, reestablish historic hydrological connections and
effectively reconnect the remaining 150 acres of forested wetlands as well as the
aforementioned wetlands adjacent to the National Wildlife Refuge. This will
substantially Increase the total wildlife carrying capacity (excluding fish and shellfish) of
all the remaining areas and benefit a Federally endangered species which does not
utilize those habitat values which dominate the proposed project site. Fill, Inc. has also
proposed to create 50 acres of emergent wetlands, although not within the estuary as
shoreline development precludes this option.
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As a result of the project, there will likely be increased BOD loadings and may
be other chemical pollutants which could adversely affect water quality. The fishery in
the area would suffer, with some recreational and commercial species likely
disappearing from the area, and reductions in the population size of other valuable
species. It is expected that, due to the chemical pollutants, the shellfish in the area
would no longer be safe for human consumption.
Fill, Inc. has stated that alternatives for their project do not exist for the
following reasons:
* The project purpose requires that the project be located within the municipal
boundaries of Smithville, since property outside those boundaries would have to be
purchased.
* All but one of the potential upland alternatives do not provide sufficient area
for the project footprint; none of the other alternatives will provide opportunities for
the water - based component. The one potential alternative site that is large enough
has no existing sewer and water service, is surrounded by dilapidated, abandoned
buildings and is not served by sufficient roads; therefore, a substantial amount of money
would have to be spent to provide infrastructure already present at the proposed
project site.
NMFS has recommended denial based on adverse impacts to the estuarine
fishery, but FWS has bought off on the proposed mitigation. Because of the presence
of the endangered species, The Nature Conservancy and the State Heritage Program
have listed the restoration and acquisition of the 175 acres of forested wetlands as one
of their top priorities in the State. They support the project and have expressed their
support to the EPA Administrator. However, the local chapter of the Audubon Society
is enraged by the proposed project, as it would interfere with their ability to observe a
number of wading birds which frequent the emergent system. The National Audubon
Society has indicated that they are carefully watching EPA’s actions in this case for
consistency with national policy.
The project has received Coastal Zone Consistency Certification and a Water
Quality Certification conditioned to require additional storm water retention and
treatment if it is determined that the project is exacerbating the aforementioned water
quality problems. The applicant’s consultant has opined that, on balance, construction
of the project with the proposed mitigation will provide more Continuous habitat and,
therefore, be of more overall environmental benefit that the current circumstances. He
further stated that if the project is “killed” the area will likely succumb to random tacky
development on the uplands and in the wetlands under general permits.
Issues
- Do you accept the mitigation package without regard for the alternatives?
- Do you comment on the water quality issues?
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The President’s Challenge
“I believe this should be our national goal--no net loss of wetlands. We can’t afford to lose
the half of America’s wetlands that still remain”
George Bush, February, 1989
Budget Statement
“You may remember my pledge, that our national goal would be no net loss of wetlands.
Together, we’re going to deliver on the promise of renewaL 1 will keep that pledge.”
George Bush, June, 1989
Ducks Unlimited
“My position on wetland is straightforward: All existing wetlands, no matter how small,
should be preserved.”
George Bush, October, 1988
Sports Afield Magazine
“From this year forward, anyone who tries to drain the swamp is going to be up to his ears
in alligators”
George Bush, June, 1989
Ducks Unlimited
I proposed, for example, that we find a way to stem the alarming loss of America’s
wetlands. As a fisherman, I appreciate how valuable this resource Ic to our wildlife.
George Bush, November, 1988
Republican Governors Association
A r the President’s direction the Domestic Policy Council, which has created a Task Force
on wetlands, is in the process of examining how best to implement the President’s goal of
no net loss, hi addition, the Task Force will examine other methods to achieve tire goal of
no net loss and make recommendations to the President in late 1990.
Statement by the Press Secretary, January, 1990
The White House
f?J want to ask you today what the generations to follow will say of us forty years from now.
It could be that they will report the loss of many million acres more of wetlands.
Or they could report something else. They cotcld report that, sometime around 1989, things
began to change. That we began to hold on to our parks and refuges. That we protected
our species. And that, in that year, the seeds of a new policy about our valuable wetlands
were sown--a policy summed up in three simple words: ‘no net loss.’ I prefer the second
vision of America’s environmental future.”
George Bush, June, 1989
Ducks Unlimited
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E
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SUMMARY OF MAJOR RECOMMENDATIONS OF THE NATIONAL
WETLANDS
POLICY FORUM
The Forum developed over 100
recommendations to implement this goal.
They have also developed three follow-
up concept papers which attempt to
clarify their recommendations for three
primary audiences:
Congress - legislative recommendations;
Administration - a draft Wetlands
Executive Order; and
States - a paper on state wetland
conservation plans and assumption of the
Clean Water Act Section 404 program.
The Forum made recommendations in many areas including:
REDUCING LOSSES:
Provide incentives to private landowners to permanently protect wetland
resources;
Expand acquisition programs;
Reduce losses from government programs that directly affect wetlands or
encourage landowners to alter them;
Institute more effective regulatory programs to ensure that all types of wetlands
alterations are reviewed.
WETLANDS RESTORATION:
Require government agencies to provide full compensation for any wetland
alterations by facilities they construct or support;
Establish a wetlands restoration initiative seeking out opportunities to restore
wet] ands;
Implement an agricultural wetlands reserve program to protect 5 million existing
wetlands, and restore 2.5 million acres over the next 10 years.
PLANNING FOR PROTECTION AND MANAGEMENT:
Increase the emphasis on wetlands planning and management including the
development of state wetland conservation plans demonstrating how a state will
achieve the goal through integration of all its programs.
The Fonun reconunended a national — for
wetlands to achieve no overall net loss of the
nation’s remaining wetlands base , as defined by
acreage and functiotç and to restore and create
wetlan4 where feosibk to üa ease the quality
and quantity of the nation’s wetlándc resource
base’.
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MITIGATION POLICY:
The Forum recommends many components of mitigation policy including:
sequenced decision making to avoid, minimize, and finally compensate for
wetland alterations; wise use of mitigation banks, clarify responsibility for
monitoring and enforcement; coordinate government decisions on mitigation; to
the extent feasible, compensate before wetlands are altered, on or near the site
of alterations, and consistent with advance planning efforts.
REGULATORY PROGRAMS:
Make changes to the Clean Water Act §404 program to encourage and support
states having primary responsibility in wetlands regulation;
Adopt a single wetlands definition;
Consider regulating small conversions of ecologically low value wetlands through
regional general permits with full compensation for any wet]ands altered.
Improve the federal agency implementation of the Clean Water Act §404
program.
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F
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OFFICE OF WETLANDS PROTECTION (475-7191)
Director, DAVID S. DAVIS
Secretary, JANICE WINGFIELD
Program Analysis Officer, JOAN WARREN
Administrative Officer, MARY HINTON
.Receptlonist, GENEVA FUNOERBURK *
Clerk-Typist, DONALD JEAN
Clerk—Typist, ROGER COLLYMORE
REGULATORY ACTIVITIES DIVISION (475-7799)
Director, SUZANNE SCHWARTZ
Secretary, STEPHANIE NOBLE
I I
I Elevated Cases Team
Team Leader, KIRK STARK
WILL GARVEY
MENCHU MARTINEZ
ENFORCEMENT & REGULATORY POLICY STAFF
Chief, GREGORY PECK
HAZEL GROMAN
Mike Fritz
CLIFF RADER
JOE DAVIA
VACANCY
WETLANDS STRATEGIES & STATE PROGRAMS DIVISION
Director, JOHN MEAGHER (382-5043)
Secretary, VIRGINIA FICKLING
Clerk-Typist, STAN FRANCZAK *
Chief Ecologist
BILL SIPPLE
MARTHA STOUT
OUTREACH & STATE PROGRAMS STAFF
Chief, JOHN STUDT
LORI WILLIAMS
JEANNE MELANSON
MARJORJE WESLEY
Cury G1dcobbe
Curtis Clark
Strategies & Initiatives Team
Teani Leader, JOHN MAXTED
DIANNE FISH
Doreen Robb
* Senior Environmental Employee Program
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FACTS ABOUT THE WETLANDS RESOURCE
EXTENT OF THE RESOURCE
It is estimated that there are approximately 99 million acres of wetlands in the
continental U.S. (as of the mid-1970’s). This amounts to an area equal to the size of
California. Estimates of Alaska’s wetlands vary, but 200 million acres probably exist.
y Malor Type (in continental U.S.):
• Inland wetlands
(including freshwater marshes and swamps) 95%
• Coastal wetlands 5%
(Office of Technology Assessment, 1984)
Land Area
• Wetlands occupy 5% of the land area of the continental U.S.
(Frayer et. a !., 1983)
Ownership
• It is estimated that about 75 - 80% of wetlands in the continental U.S. are
privately owned; the remaining 20 to 25% is owned by federal and State
governments. (U.S.F.W.S., 1989)
LOSS OF WETLANDS
Aggregate Loss s (contiguous U.S.)
• Estimated wetland acreage at time of European settlement 215 million acres
(Roe and Ayres, 11954)
• Estimated acreage in mid-1970’s 99 million acres
• Percentage lost through mid-1970’s 54%
(Frayer et. al., 1983)
Recent Losses
• Between the mid-1950’s and the mid-1970’s, an average of 458,000 acres were lost
annually in the continental U.S. This totaled about 10% of the remaining
wetlands over this twenty year period.
• The percentage of losses aimbutable to various activities between the mid-1950’s
and mid-1970’s:
- Agriculture 87%*
- Urban development 8%
- Other Development 5%
(Frayer et. al., 1983)
* Note: Because this figure may have changed substantially since the mid-1970’s,
agricultural interests object to its use without mentioning this qualification.
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Geographical Concerns
• Iowa has lost 99% of its wetlands. (Frederickson)
• California has lost over 90% of its wetlands. (U.S.F.W.S., 1977)
• Only 20% of the bottomland hardwood forests of the Lower Mississippi Valley
remain; the loss rate of these wetlands was three times the national average
between the mid-1950’s and mid-19 ?0’s. (MacDonald et. al., 1979)
• 33% of North Carolina’s pocosin wetlands were totally converted to non-wetland
uses between 1962 and 1979. (Richardson et. al. 1981)
• Louisiana is losing 30,000 to 40,000 acres of coastal wetlands per year due to
subsidence, sediment starvation, saltwater intrusion through oil and gas and
navigation canals, and sea level rise. (Gosselink et. al., 1979 and Gagliano et. al.,
1981)
• Over 90% of Nebraska’s Rainwater Basin wetlands are gone. These are heavily
used by migratory birds, and habitat over-crowding results in outbreaks of disease
(In 1980, about 80,000 waterfowl died due to avian cholera). (Farrar, 1982)
VALUE OF THE WETLANDS
Waterfowl and Wildlife
Coastal and inland wetlands provide essential breeding, nesting, feeding and
predator escape habitats for many forms of waterfowl, mammals, and reptiles.
Example: Although wetlands constitute only about 5% of the nation’s lands, at
least 35% of all rare and endangered species are either located in
wetland areas or are dependent on them. (Kundell and Woolf, 1986)
Example: As other habitat is lost, wetlands are increasingly becoming the last refuge
of animals we do not normally think of as wetland dependent, such as
black bear and the Florida panther. (Richardson et. al., 1981 and Tiner,
1984)
Example: Nationally, 80% of America’s breeding bird population require
bottomland hardwoods for survival. (Wharton and Kitchens, 1982)
Fish and Shellfish
Wetlands are important spawning and nursery areas and provide plant food for
commercial and recreational fin and shellfish industries.
Example: On the Atlantic and Gulf coasts, the Department of Commerce has
estimated that from 66% to 90% of the commercially important fish and
shellfish species depend on coastal marshes or estuaries for at least part of
their lifecycle. (U.S. Dept. of Commerce, N.O.A.A., 1981)
Example: Louisiana’s marshes produce an annual commercial harvest of 1.6 billion
pounds worth $680 million. (U.S.A.C.O.E., 1987)
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Water Quality
Wetlands improve water quality by removing excess nutrients and many chemical
contaminants; because of this function, they have been called “nature’s kidneys.”
Example: In Georgia, the Alcovy River’s forested wetlands significantly improve
stream water quality affected by wastes discharged upstream. An
equivalent amount of pollution removal in a sewage treatment plant would
cost $1 million per year. (Wharton, 1970)
Example: Wetlands have been found to remove up to 60-90% of the suspended
sediments in waters flowing through them. (Tchobanoglaus and Culp,
1980)
flood and Erosion Control
Wetlands absorb peak flood flows and release them more slowty to streams,
thereby reducing downstream flood damages to cities and farms. They also absorb
wave energy from storm events and decrease the erosive force of water along rivers,
lakes and coastal shores.
Example: In 1982 a dam in Rocky Mountain National Park, Colorado, broke
releasing a surge of flood waters. The wetlands below the dam absorbed
and slowed the peak waters and significantly reduced the extent of damage
to the downstream town of Estes Park.
Example: In the 1970’s, the Corps of Engineers decided to preserve wetlands in
the Charles River Basin in Massachusetts instead of building expensive
dams or dikes. The loss of those wetlands would have resulted in an
annual cost of $17 million in flood losses. (Thibodeau and Ostro, 1981)
A cumulative reference list is attached for al] citations.
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References
1. Farrar, J. (1982) “The Rainwater Basin: Nebraska’s Vanishing Wetlands.”
Nebraska Game and Parks Commission. 15 pages.
2. Frayer, W.E., T.J. Monahari, D.C. Bowden, and F.A. Grabill. (1983) “Status
and Trends of Wetlands and Deepwater habitats in the Coterminous United
States, 195 Os to 1970s. ” Department of Forests and Wood Sciences, Colorado
State University, Fort Collins. 32 pages.
3. Frederickson, L.H. Professor, University of Missouri - Columbia. Letter to Soil
Conservation Service. Cited in National Wildlife Federation publication:
4. Gagliano, S.M., K.J. Meyer-Arendt, and K.M. Wicker. (1981) “Land loss in the
Mississippi Deltaic Plain. Transactions. Gulf Coast Association of Geological
Societies. Volume 31: 295-300.
5. Gosselink, J.G., C.C. Cordes, and J.W. Parsons. (1979) An Ecological
Characterization Study of the Chenier Plain Coastal Ecosystem of Louisiana and
Texas . FWSIOBS-78/9-78/11 (3 volumes). Office of Biological Services, U.S.
Fish and Wildlife Service, Slidell, Louisiana.
6. Kundell, i.E. and S.W. Woolf. (1986) “Georgia Wetlands: Trends and Policy
Options.” University of Georgia. 23 pages.
7. Kusler, IA. (1983) Our National Wetland Heritage: A Protection Guidebook .
Environmental Law Institute. Page 7.
8. Office of Technology Assessment. (1984) Wetlands: Their Use and Regulation .
March 1984. 208 pages.
9. MacDonald, P.O., W.E. Frayer, and J.K. Clauser. (1979) Documentation,
Chronology, and Future Projections of Bottomland Hardwood Habitat Loss in
the Lower Mississippi Alluvial Plain . Volume I, Basic Report. U.S. Fish and
Wildlife Service, Ecological Services, Vicksburg, Mississippi. 133 pages.
10. Richardson, C., R. Evans and D. Carr. (1981) “Pocosins: an ecosystem in
transition.” Pages 9-10. In Richardson, C.J., ed. (1981) Pocosin Wetlands .
Hutchinson-Ross Publishing Co., Stroudsburg, Pennsylvania.
11. Roe, H.B., and Q.C. Ayres. (1954) Engineering for Agricultural Draining .
McGraw-Hill Book Co, New York. 501 pages.
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12. Tchobanoglaus, G. and G.L. Cuip. (1980) “Wetland systems for wastewater
treatment: an engineering assessment. In: Reed, S.C. and R.K. Bastian, eds.
Aguaculture Systems for Wastewater Treatment: An Engineering Assessment .
430/9-80-007, MC-68, U.S. Environmental Protection Agency, Washington D.C.
Pages 13-42.
13. Thibodeau, F.R. and B.D. Ostro. (1981) “An economic analysis of wetland
protection.” Journal of Environmental Management. Volume 12.
14. Tiner, R,W. (1984) “Wetlands of the United States: Current Status and
Trends.” U.S. Fish & Wildlife Service. March 1984.
15. U.S. Army Corps of Engineers, New Orleans District. (1987) “Crisis on
Louisiana’s Coast...America’s Loss.” 13 pages.
16. u.s. Department of Commerce, National Oceanic and Atmospheric
Administration, National Marine Fisheries Service. (1981) Fisheries of the
United States: 1980 . Second Printing. Resources Statistics Division, Current
Fishery Statistics #8100.
17. U.S. Fish and Wildlife Service. (1977) Concept Plan for Waterfowl Wintering
Habitat preservation: Central Valley, California . Region I, Portland, Oregon.
116 pages + appendices.
18. U.S. Fish and Wildlife Service, Department of Interior. (1989) National
Wetlands Priority Conservation Plan . April 1989. 57 pages + appendices.
19. Wharton, C.H. (1970) The Southern River Swamp: A Multiple Use
Environment . Bureau of Business and Economic Research, School of Business
Administration, Georgia State University, Atlanta, Georgia.
20. Wharton, C.H. and Kitchens, W.M. (1982) The Ecology of Bottoniland
Hardwood Swamps of the Southeast: A Community Profile . U.S. Fish and
Wildlife Service, Biological Services Program, Washington D.C. FWS/OBS -
81/37. 137 pages.
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United States
Environmental Protection Agency
Office of Water
aEPA
Office of Wetlands Protection
Wetlands Protection
]
The United States is losing one of its most
valuable, and perhaps irreplaceable, re-
sources—our nation’s wetlands. This natu-
ral hen tage of swamps, marshes, bogs, or
other wetlands, known by many local names,
is rapidly disappearing.
Once there were over 200 million acres
olwet lands in the tower forty-eight states;
now only 95 million remain. In the two
decades between 1955 and 1975, over Ii mil-
lion acres were lost entirely. Moreover, ibis
figure does not include wetlands degraded
by pollution to the point where they cannot
fulfill theirecological functions. Even worse,
these national figures mask much greater
losses of particular types of wetlands in
specific Regions.
When we lose our wetlands we also
lose many vital functions performed by
these systems. These include wildlife habi-
tat, water quality enhancement, flood stor-
age and desynchronization, aquifer recharge,
stream baseflow stabilization, organic mate-
rial production which supports estuarine food
chains, protection of fragile coastal areas
from storm surges, and even control of local
climates.
We have a number of tools available to
us for protecting our wetlands. Alt levels
of government—Federal, state, and local —
administer programs of one sort or another
that help minimize or eliminate damage to
wetlands. Probably the best known of these
is the Federal program under section 404
of the Clean Water Act for regulating the
discharge of dredged or fill material into
waters oftlie United States, including most
wetlands. Some states have similar permit
programs. Various governmental economic
incentive programs and land management
programs complement these regulatory pro-
grams.
The Environmental Protection Agency
plays an important role in wetlands protec-
non. The cornerstone of these efforts is the
section 404 program, which EPA jointly
administers with the Army Corps of Engi-
neers. EPA ’s regulatory activities, however,
are supplemented by important efforts in
other areas such as working with States and
local governmenis, enhancing public aware-
ness of wetland values, and conducting re-
search in key scientific areas. EPA ’s wet-
land protection activities are carried out by
the Headquarters Office of Wetlands Protec-
tion and wetland staffs in the ten Regional
offices.
For more information on EPA ’s Wet-
land Protection Program, write: Office of
Wetlands Protection (A-l04-F), Attention:
Public Information Officer, U.S. Environ-
mental Protection Agency, 401 M Street,
S.W., Washington, D.C. 20460.
1-9/89
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United States
Environmental Protection Agency
Office of Water
In the simplest sense wetlands are just wet
places where land and watermingle in novel
and Lnrrlcare ways to create a remarkably
diverse assortment of habitat types Water is
the life blood of wetlands and is the domi-
nant influence on soil structure and the kinds
of plants and animals characterizing a wet-
land.
We generally define and describe wet-
lands in terms of the combination of wet (or
hydric) soils hydrology (that is, inundation
or soil saturation by water), and vegetation
(that is, plants specially adapted to tolerate
saturation or inundation.) Each wetland
type is a unique amalgam of these three
factors and other characteristics.
Wetlands span a broad spectrum with
regard to their diversity. They may be tens
of thousands of acres in extent or as small as
a tabletop. They are found from the cold tun-
dra of the Arctic to the lush, humid tropics of
the mid-latitudes. They may be dark and
densely wooded or sunny, open wet grass-
lands. Many are associated with rivers,
streams, lakes, or sea, but many others are
found far from any open-water bodies. Some
wetlands are uniform stands of one or a few
plant species, while others may contain
dozens of important plant species and repre-
sent a mixture of several discrete vegetation
communities.
Wetlands are known by many names
reflecting both their actual diversity and
the cultural and linguistic patterns where
they are found. There is no universally
accepted system of naming or classifying
wetlands, and this has led to a great deal of
confusion. The National Wetland Inven-
tory, a project of the U.S. Fish and Wildlife
Service, uses a standardized, hierarchical
system for classifying, mapping, and moni-
toring wetlands, but the system is not read-
ily amenable to popular usage. ‘WI ile there
are no truly standardized common names
for wetland types, there is a set of termninol-
ogy that is generally used and understood
by professional workers in the field. These
are grouped into two broad classes depend-
ing on the amount of peat (that is, uncon-
solidated soil material consisting largely of
undecomposed or slightly decomposed plant
materials) present. These types are broken
down as follows:
Peatlands - wetlands that accumulate ap-
preciable peat deposits. Peatlarids are gen-
erally, but not exclusively, associated with
northern climates and glaciated terrain. They
may be dominated by herbaceous or woody
vegetation, or both. Included are:
Bogs that depend primarily on precipi-
tation for their water source and are usu-
ally acidic and poor in certain nutrients
Office of Wetlands Protection
The Wetlands Resource I
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Fens that derive most of their water from Wetlands can be round in every part of
groundwaterand are less acidic andricherin the United States. Many are associated with the
mineral nutrieiits. sea and are particularly notable as the great tidal
marshes of the mid and south Atlantic coast.
Non-peat accumulating wetlands. These itt- Large areas are also found along rivers and
dude: streams, especially in the Southeast and
Southcentral states with their typical bonomland
Marshes which are dominated primarily by hardwood forests. Others are isolated from
herbaceous (non-woody) vegetation, and major water bodies — particular concentrations
being found in the Alaskan tundra, the prairie
Swamps which are dominated primarily by pothole region of the upper Great Plains, and the
woody vegetation in the form of trees or
shrubs.
2-9/89
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United States
Environmental Protection Agency
Office of Water
Office ofYletlands Protection
$FEPA
[ Wetlands Functions and Values
Wetlands provide many values to society
and larger natural ecosystems of which they
are a part. These values derive from a
variety of wetlands functions; that is, physi-
cal and biological processes intrinsic to all
natural systems. Most werlandfunc:ions are
perceived by an informed public as having
positive value — a good example being the
production of commercially harvested shell-
fish. A small minority offuncrions, such as
providing breeding habitat for mosquitos,
are widely perceived as having negative
value
Wetlands are extremely complex systems,
and until fairly recently, they were not exten-
sively studied. As a result, there is still much
to learn about wetlandfunctions and we may
even find significant other values as research
proceeds. We have, however, identified and
characterized an impressive number of bene-
ficial functions which are outlined below.
Physical Protection. Wetlands protect shore-
lines from wave orstorm erosion bydissipa-
ing wave or storm energy, and they protect
downstream areas from damaging effects of
flood flows through slowing and temporarily
storing floodwaters, thusreducing peak flows.
Water Quality Enhancement. Wetlands
remove pollution from waters that flow
through them by way of physical adsorption
to plants or bottom sediments, chemical pre-
cipitation, or biochemical breakdown or
uptake. In effect, they function as biological
sewage treatment plants.
Water Supply. In some areas wetlands
serve as groundwater recharge zones for
underlying or adjacent aquifers. Many store
water during the wetter parts of the year and
release it at relatively constant rates helping
to maintain regular stream flows.
Wildlife Habitat. Wetlands provide critical
breeding, nesting and rearing, and wintenng
habitat for many species of fish and wildlife.
A large proportion of Federally-listed threat-
etied or endangered animals (45%) and plants
(26%) depend directly or indirectly on wet-
lands to complete their life cycle success-
fully.
Food-Chain Support. Coastal and nverine
wetlands produce large quantities of plant-
derived food materials that are exported to
estuaries and other coastal areas where they
support marine food webs, many of which
are critical to comrnerical fisheries.
Commercial Products. Wetlands serve as
important sources of fish and shellfish.
furbearers, timber, forage, wild rice, cran-
benies, blueberries and other useful maten-
als.
Recreation and Aesthetics. Wetlands con-
tribute these values by providing places for
hunting and fishing, nature study and pho-
tography, canoeing and boating, and outdoor
education. Increasingly, wetlands are also
coming to be viewed as valuable simply for
the natural beauty they offer.
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Climatic Influences. Wetlands are believed to
play an important role in the global cycles of
nitrogen, sulfur, methane, and carbon dioxide. In
this way wetlands may help to control atmos-
pheric pollution by removing excess nitrogen and
carbon produced through man’s activities.
Assessing wetland values for a particular wetland
tract or region is a vital step in planning and regu-
latory activities. Because the science of wet-
land functions and values is still maturing, such
assessments are challenging. Considerableprog-
ress has been made in the last several years, and
the key Federal agencies are collaborating on
the development of a uniform assessment meth-
odology known as the Wetland Evaluation
Technique (WET).
3-9/89
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United States
Environmental Protection Agency
Office of Water
Office of Wetlands Protection
&PA
[ Wetlands Impacts and Lossesi
Despite their many values, wetlands con-
tinue to be lost in the United States Unfor-
tunately, relatively few people are aware of
or understand the values of wetlands and
equally few are familiar with the laws and
regulations governing their protection This
situation is significantly compounded by a
long history and tradirwn in the Western
World of fear and loathing of wetlands and
the creatures they harbor. This, in turn, is
reinforced by our nation’s doctrine of mani-
fest destiny that, among other things, places
a positive value on ‘reclaiming” such
c wastelands J.
Private property philosophy also plays a
role since most wetlands are privately
owned and the role of government in protect-
ing such public values on private land is not
widely accepted and supported.
Wetlands are relatively fragile eco-
systems that can be easily damaged or de-
stroyed, particularly when their hydrol-
ogy is altered. Because wetlands are often
the only remaining undeveloped parcels of
land, particularly in urban areas, the social
and economic ‘pressures to convert them to
developable fastland are enormous. Because
wetlands are most commonly situated in topo-
graphic low spots, they have traditionally
been used for all manner of waste disposal,
including sewage effluent discharge, gar-
bage dumps, hazardous waste dumps and ir-
rigation return flow collectors. Finally,
because certain floodplain and prairie wet-
lands contain good agricultural soils, they
have been systematically drained and diked
to convert them to cropland.
The major threats to wetlands today
come from agriculture and commercial or
residential development. Estimates point
strongly to agriculture as the major human
activity that destroys wetlands. Many agri-
cultural activities are exempt from key Fed-
eral and state programs, and the vast land
area involved makes surveillance very diffi-
cult. In urban and coastal areas, major losses
of wetlands are attributable to the consiruc-
tion of such facilities as housing, shopping
centers, marinas and other recreational fa-
cilities and supporting infrastructure of roads,
utility corridors, and sewage treatment plants.
Historically, federally-subsidized water
resource, flood control, and highway proj-
ects have been responsible for major impacts,
but these impacts are declining as a fraction
of the total as Federal support for such proj-
ects declines. Increasing impacts are being
felt in some areas such as the Arctic and the
Gulf Coast as a result of oil and gas explora-
tion and production while the mining of coal,
minerals, and peat continues to destroy or
degrade large areas of the Nation’s interior.
Other activities also continue to chip
away at our wetland resources. These in-
clude small fills, stream diversions or im-
poundments, and bank stabilization associ-
ated with homeowner improvements, im-
pacts of forestry operations and grazing on
both public and private lands, groundwater
extraction with attendant surface water de-
pletion for irrigation and offshore petroleum
operations, mosquito control ditching and
insecticide application, and waste disposal
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We are also coming to realize that outright
destruction fromfilling and draining, while highly
visible and recognizable, is not the only way in
which we are losing our wetlands. Degradation
in other forms is a more subtle, but equally
pervasive destroyer of wetlands. Such degrada-
tion may involve sedimentation from non-point
source pollution, chemical contamination from
stormwater, irrigation returns, waste disposal or
physical destruction from uncontrolled use of off-
road vehicles and other destructive recreational
activities.
Stemming wetlands losses and destruction
requires both regulatory sanctions to control
avoidable impacts and an increased ability to
mitigate unavoidable impacts. Both restora-
tion of degraded wetlands and creation of new
wetlands may play a major role in future efforts
to maintain, or even increase, the wetland base.
The concepts and methods for successfully re-
storing and creating wetlands are as yet uncer-
tain and these techniques cannot be relied upon
as the whole solution to wetland loss. Much ex-
citing work is being done to develop and dem-
onstrate methods for restoration and creation.
Because wetland science in general is still young,
this is an area of very great challenge but there
is reason to be hopeful.
4- 9/8 9
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United States
Environmental Protection Agency
Office of’ Water
Office of Wetlands Protection
ner
Wetlands are affected by a great many
public and private programs and activi-
ties. Some of these actions benefit the wet-
lands resource, but many of them affect
wetlands adversely. Some programs may
have both effects depending upon the actual
situation u t a given case and/or in the objec-
tives arid attitudes held by the principal deci-
sion-makers. In the aggregate the broad
array of government policies and programs
work at odds: some create incentives for
protection while others create incentives for
conversion. These mixed incentives and
messages add to the confusion and contrib-
ute to our continued problem of wetland
loss. Add to this the varied activities of the
private sector and the public at large — some
of which benefit wetlandswhile others impact
them adversely —and it becomes readily
apparent that the remedies must be as varied
and as carefully crafted as the problems they
are designed to address.
At the Federal level, the available
tools can best be outlined under four gen-
eral areas. First, direct regulation of wet-
lands destruction or degradation is available
under sections 402 (effluent discharges) and
404 (discharge of dredged or fill material) of
the Clean Water Act and the 1899 Rivers and
Harbors Act. The Endangered Species Act
can also play an important role where wet-
lands serve as critical habitat for threatened
or endangered species.
Activities impacting wetlands can be
affected through the application of eco-
nomic sanctions designed to limit destruc-
tive actions. Important examples include
“swampbuster” provisions of the 1985 Food
Security Act (which remove agricultural sub-
sidies and loan guarantees when wetlands
are converted) and the 1982 Coastal Barrier
Resources Act (which removes Federal sup-
ports when designated barrier islands are de-
veloped). Recent changes in the Federal
Tax Code have also removed many incen-
tives for land conversion.
The third, very broad area is the amal-
gam of Federal programs that involve
planning, public land management, and
development of infrastructure such as
highways, water resources facilities, and
flood control. Particularly in the West,
Federal lands comprise such a large fraction
of the total that land management policies
and practices alone can tip the balance for or
against wetlands protection. Guided by the
Executive Orders on Wetlands Protection
and Floodplain Management and the Na-
tional Environmental Policy Act (NEPA),
most major land managing agencies are de-
veloping responsible policies for managing
and conserving wetlands resources under
&PA
The protection of our Nations wetlands re-
sources depends on a concerted effort by all
levels of government, pri’ -ire industry, con-
servation organizations, me scientific corn-
mummy, and the public. There is no “0mm-
bus” wetlands protection law in the United
States, so protection necessarily requires
the employment of a variety of approaches in
a coordinated, thoughtful, and effective man-
-------
their stewardship. NEPA and the Executive
Orders also apply to most activities involved in
highway construcuon and water resources de-
velopment. The Coastal Zone Management Act
and the National Estuary Program (section 320
of the Clean Water Act) provide both an rnstitu-
tional framework and funding for the develop-
ment of comprehensive resource management
plans at the estuary or comparable level.
The final and critical area isFederal land
acquisition. Regulation, planning, and other ap-
proaches can only go so far. In some circum-
stances, the only sure way to protect the wetland
resource is for the Federal government to simply
buy the land and manage it in a protected status,
or to obtain a conservation easement that ensures
natural values will be preserved. The most no-
tabLe example of this is our network of National
Wildlife Refuges most of which include signifi-
cant wetland acreage. The 1986 Emergency
Wetlands Resources Act has broadened Federal
authorities in this area and set up a formal proc-
ess for establishing acquisition prionties.
At the Statelevel, many legislatures have
enacted wetland acquisition or protection
statutes which complement Federal pro-
grams. States also administer a variety of land
use and water quality management programs
that significantly affect wetlands protection.
Local zoning and land use planning, if done
wisely, can also be vital factors in protection of
wetland resources. Private organizations, in-
dustry, and landowners also contribute in im-
portant ways through education, acquisition,
and wise management of wetland resources they
own. increasingly, the role of pnvate industry in
protecting wetlands is becoming a more central
one since many wetlands are found on corporate
land and since government will never have the
resources to do the whole job alone.
5-9/89
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United States
Environmental Protection Agency
Office of Water
1%
Office of Wetlands Protection
The Section 404 Program
I
In 1972, Congress substantially amended
the Federal Water Pollution Control Act,
providing for the first lime a Federal regu-
latory scheme with real teeth in the form of
standards, attainment deadlines , enforcement
authorities, and permit requirements. Sec-
tion 404 of the Act established a new permit
program to control the discharge of dredged
material (spoil) orfihimaterial into waters of
the United States Because of the Army
Corps ofEngineers’ (COE) extensive experi-
ence in regulating modtfications of navi-
gable waters, Congress charged the Secre-
tary of the Army with responsibility for the
basic permit program. In recognition of
EPA’s expertise and responsibilities for pro-
tecting the environment, Congress charged
theAdministratorof EPA with deve1op ng, in
conjunction with the Army, environmental
guidelinesforspecifying disposal sites, known
as the 404(b)(1) Guidelines.
Section 404(b)(2) also provided for a
limited override of the Guidelines by the
Secretary where the economics of anchor-
age and navigation warrant. In section
404(c), the Act gave EPA authority to pro-
hibit, withdraw , or restrict (popularly known
as “veto”) specification of sites fordischarge
where unacceptable adverse effects would
occur to certain classes of aquatic values.
In 1977, Congress again overhauled
the Act (renaming it the Clean WaterAct),
adding a number of new provisions, some
ofwhichcodified the administrative prac-
tices used by the implementingagencies at
the time while others reflected political
compromises. The more significant new
provisions provided for transfer of the permit
program for certain waters (generally the
non-navigable waters) to qualified states;
exempted from permitting certain activities
believed to have minimal impacts (404(f))
arid certain Federal projects where the
404(b)(l) Guidelines are considered in an
Environmental Impact Statement (404(r));
and authorized general permits for catego-
nes of activities with minimal individual and
cumulative impacts. In 1987, further amend-
ments created new authority for both the
Corps and EPA to issue administrative civil
penalties for section 404 violations and au-
thorized EPA to treat Indian tribes as states
where certain qualifications are met.
Section4O4 regulatesthosedischarges
of dredged or fill material not exempted
by statute into all waters of the U.S., in-
cluding most wetlands. Such discharges
are commonly associated with projects such
as channel contruction and maintenance, port
development, fills to create fastland for de-
velopment sites, and water resources proj-
ects like dams and levees. Other kinds of
activities such as channelization and land-
clearing are regulated under Section 404
where there is an associated discharge of soil
or other materials into waters. Many other
activities which can adversely affect or
even destroy wetlands, such as drainage
and groundwater pumping, are not regu.
latable under section 404 unless they in-
volve discharges of dredged or fill mate-
nal. The term “waters of the U.S.,” which
sets the geographical scope of the program, is
defined to include all surface waters and their
tributaries, adjacent wetlands, and isolated
-------
waters or wetlands the use, degradation, or de-
struction of which could affect interstate or for-
eign commerce. As a practical matter most iso-
lated waters and wetlands are brought into theju-
risdictional ambit of section 404 under this “com-
merce clause test.”
The Section 404 program is administered
by both the Corps of Engineers and EPA. The
U.S. Fish and Wildlife Service arid the National
Marine Fisheries Service have important advi-
sory roles, and other governmental agencies,
industry, and the public can all play an important
role in commenting on public notices of permit
applications or participating in hearings or other
information-collecting activities. The Corps, op-
erating through its 37 District offices receives up
to 14,000 individual permit applications per year.
After notice and opportunity for public hearing,
the District Engrneer may issue or deny the appli-
cation. In recent years approximately 5% have
been denied; most of the remainder are issued
with binding conditions requiring project al-
teration and mitigation to reduce environmental
impacts, and/or monitoring. Tens of thousands
of other discharges are authorized by general
permits issued on a regional or nationwide
basis; these do not require individual permits as
long as the discharger complies with the condi-
tions issued by the Corps, Section 301 and 309
of the Act give EPA and the Corps authority to
act against persons who discharge without a
404 permit and also to enforce against violators
of 404 permit conditions. In particular, Sec.
tion 309(g) authorizes both agencies to assess
administrative civil penalties for violations
of Section 404. EPA or the Corps may also
seek monetary penalties, injunctive relief
and even prison sentences through judicial
referrals.
6-9/89
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United States
Environmental Protection Agency
Office of Water
aEPA
Office o iWetlands Protection
EPA’S Wetlands
Protection Program
3
The U S. Environmental Protection Agency
has been involved in wetlands protection
since the passage of the 1972 amendments to
the Federal Water Pollution Control Act,
which established the dredged or J Ul mate-
rial permuting program under Section 404
Since 1981, the wetlands program had
been assigned to the Office of Federal Ac-
tivities. In October 1986, partly in response
to a major strategic study of wetlands pro-
tection, EPA management increased and
underscored its conmiitrnent to wetland pro-
tecuon by elevating the function from di-
vision to office level. The new Office of
Wetlands Protection was placed under, and
reports directly to, the Assistant Adminstra-
tor for Water. As part of EPA’s water
program, wetlands efforts are integrated more
effectively into EPA’s overall water resource
protection activities, including those dealing
with estuaries and near coastal waters, non-
point source pollution, and groundwater.
The Administrator approved the follow-
ing areas of emphasis for the new office, as
laid out in the strategic plan:
• expedite Section 404 policy develop-
ment
• enhance state and local wetland protec-
don
• increase anticipatory approaches to
wetlands protection
• increase coordination with and consis-
tency of Federal and state policies
• enhance public awareness of wetlands
values
• expand scientific knowledge of wet-
land functions
The regulatory responsibilities of Sec-
tion 404 will continue to serve as the corner-
stone for EPA’s wetland protection activi-
ties; however, the Agency is committed to
moving forward along a variety of both
regulatory and non-regulatory fronts,
aimed at increasing public understanding and
support and enhancing complementary or
related non-regulatory programs, while seek-
ing innovative ways to make the traditional
Section 404 program more efficient, more
predictable, more consistently applied across
the country, and more environmentally effec-
tive.
The oi rice of Wetlands Protection is or-
ganized in two Divisions. The Regulatory
Activities Division manages all section 404
(dredged or fill matenal permit program) ac-
tivities except State program assumption.
These include the development of policy,
guidance and regulations; most general sec-
tion 404 program development, management
and Regional assistance; and handling of
elevated cases under 4 04(q), preparation of
final 404(c) determinations, arid case-related
assistance to the Regions. The Wetlands
Strategies and State Programs Division
manages state and local program develop-
ment activities and all other non-adminis-
trative functions. These include work with
other government agencies (other than sec-
tion 404 actions), public information and
education, initiatives in such areas as com-
prehensive planning, ecosystem-level pro-
tection projects, development of technical
methods and information, and liaison with
the research community.
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Field activities are carried out by wet-
lands staff in EPA’s ten Regional Offices. Or-
ganization level and structure vary by Region, but
each Region has designated a “Wetlands Coordi-
nator”, usually a Section or Branch Chief, who
serves as the general point of contact arid activity
for that Region. The Agency’s Wetland Research
Program is administered by the Office of Envi-
ronmental Processes and Effects Research. The
Corvallis (Oregon) Environmental Research Labo-
ratory manages the actual research work. Other
key supporting roles are played by the Office of
General Counsel and the Office of Enforce-
ment and Compliance Monitoring. The Office
of Wetlands Protection also works very
closely with the Office of Federal Activities
since that office manages the review of all
Federal Environmental Impact Statements and
other major plans and assessments, many of
which involve wetlands resources or impacts.
7-9/89
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H
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SECTION 404 OF ThE CLEAN WATER ACT: AN OVERVIEW
INTRODIJC ION
Section 404 of the Clean Water Act regulates the discharge of clredged or fill t
material into waters of the United States.
• The Section 404 permit program is administered jointly by EPA and the
U.S. Army Corps of Engineers (Corps).
• Although the Corps is responsible for permit processing, EPA is responsible
for several key aspects of the program, including development of the program’s
environmental standards (Section 404(b)(1) Guidelines), determining the scope of
geographic jurisdiction and the applicability of permit exemptions under Section
404(f), state program assumption, and enforcement.
THE PERMIT PROCESS (see attached flowchart)
!ndtvidual Permit.s
• Discharges can be authorized by either individual or general permits.*
• If an individual permit is required, the Corps issues a public notice containing
the information needed to evaluate the potential impacts of the proposed
activity.
• Notice is sent to EPA and all interested parties, including other Federal, State,
and local government agencies, adjacent property owners, and others as
requested. Any person may request that a public hearing be held to consider
the application.
• The Corps’ evaluation of a Section 404 permit application is a two part test
which involves determining whether the project complies with the Section
404(b)(1) Guidelines and a public interest review. A permit must be denied if
the project fails to comply with the Guidelines or is found to be contrary to the
public interest.
General Permits
• General permits, issued on a State, regional or nationwide basis, are authorized
for specific activities which are similar in nature and will cause minimal adverse
environmental effects individually or cumulatively.
‘Terms that are marked with an asterisk are defined in a Glossary found at the end
of this document.
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Scct on 404 of the Clean Water Act An O e v’.ew Page 2
All general permits contain conditions and limitations on the authorized
activities intended to ensure that the impacts are minimal.
• Examples of activities authorized by nationwide permits which are generally
not of concern to EPA are navigation buoys, discharges for minor road crossings
of non-tidal water bodies, and bank stabilization less than 500 feet in length that
does not impact wetlands.’
Issues
• EPA and environmental groups have expressed concern over a number of
broad nationwide permits, including one for isolated waters and headwaters
under 10 acres and a number of activities authorized by other Federal programs.
The Corps has initiated a review of the nationwide permit program, in which
EPA will be participating.
GEOGRAPHIC J1JRISDICFION (see attached diagram)
• EPA has the ultimate responsibility for determining the scope of geographic
jurisdiction of the Clean Water Act, including the Section 404 program (“waters
of the United StatesB).
• The Section 404 program’s geographic jurisdiction is comprehensive, extending
to all “waters of the United States,” including
- waters which are currently used, were used in the past, or may be
susceptible to use in interstate or foreign commerce;
- all tidal waters;
- all interstate waters and wetlands;
- all other waters (such as intrastate lakes, rivers, streams and wetlands), if
their use, degradation or destruction could affect interstate or foreign
commerce;
- tributaries to waters or wetlands identified above;
- the territorial sea; and
- wetlands adjacent to waters (other than wetlands) identified above.
Office of Wetlands Protection March 28, 1990
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Section 404 of the C n Water Art. An Overview Page 3
EPA and the Corps assert jurisdiction over isolated waters where it can be
demonstrated there will be an effect on interstate or foreign commerce.
Working with OGC, we have developed a list of examples of isolated waters
which are under Section 404 jurisdiction. These examples include waters which
are or would be used as habitat by birds protected by Migratory Bird Treaties or
by other migratory birds which cross state lines.
• Wetlands subject to regulation under Section 404 are delineated using a three-
parameter approach, i.e., positive indicators of wetlands vegetation, hydrology,
and hydric soils.
fssuec
• Many of the major issues associated with geographic jurisdiction were resolved
as a result of agreements reached with Army, including the 1989
Jurisdiction/404(f) MOA and the interagency Wetland Delineation Manual.
However, the Manual has generated some new concerns, particularly where the
Corps had previously asserted jurisdiction more narrowly.
ACTIVITIES REGULATED BY SECTION 404
• Discharges of dredged and fill material are commonly associated with activities
such as:
- port development;
- channel construction and maintenance;
- fills to create development sites;
- transportation improvements; and
- water resource projects (such as dams, jetties and levees).
• Other kinds of activities, such as landclearing, are regulated as Section 404
discharges if they involve discharges of dredged or fill material (e.g., soil) into
waters of the United States.
• In addition, Congress, in the 1977 CWA amendments, included specific
exemptions (Section 404(f)) from permitting requirements for certain activities.
EPA is ultimately responsible for determining the applicability of the Section
404(f) exemptions. These activities include:
Office of Wetlands Protection MatCh 28, 99O
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Section 404 of the Ctcan Water Act: An Oyerview Page 4
- normal farming, silviculture, and ranching practices;
- maintenance, including emergency reconstruction of recently damaged
parts of currently serviceable structures such as dikes, dams, levees,
groins, rip rap, breakwaters, causeways, bridge abutments or approaches,
and transportation structures;
- construction or maintenance of farm or stock ponds or irrigation ditches
or the maintenance (but not construction) of drainage ditches;
- construction of temporaty sedimentation basins on a construction site
which does not include placement of fill material into waters of the
United States; and
- construction or maintenance of farm or forest roads or temporary roads
for moving mining equipment if best management practices are followed.
• The Section 404(f) exemptions are applied narrowly (pursuant to the
restrictions in Section 404(0(2)) and are not intended to exempt activities with
more than minor impacts on aquatic resources. Under Section 404(f)(2), an
otherwise exempted activity is “recaptured” (i.e., the activity requires an
individual permit) if there is a change in use and water flow/circulation is
impaired or the reach of waters is reduced.
• There are several major unresolved issues in this area, including the “solid
waste” problem and inconsistent EPA/Corps interpretation of regulated activities
(e.g., Iandclearing, pilings).
DREDGED MATERIAL DISPOSAL
• Section 404 also regulates dredged material disposal into open waters and
wetlands within its jurisdiction, which is similar to the regulation of dredged
material disposal in ocean waters under Section 103 of the Marine Protection,
Research, and Sanctuaries Act.
• The regulation of dredged material in Section 404 waters has recently
increased in environmental significance due to a number of factors, including:
- more dredged material disposal as a result of port improvement projects
authorized under the Water Resources Development Act of 1986;
Office of Wet!ands Protect,or, March 28, 1990
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Section 404 of the Clean Water Act. An Overview Page 5
- about 3% of dredged material is highly contaminated with pollutants
such as metals and organic chemicals and disposal of such material is
geneTaily expensive;
- finding suitable disposal sites (including upland sites) is becoming more
difficult;
- the Navy’s proposed homeporting project in Puget Sound at Everett,
Washington as well as the proposed dredging in conjunction with the Port
of Oakland in San Francisco Bay raised contaminated dredged material
issues; and
- GAO recently concluded an investigation of the management of dredged
material disposal in the San Francisco Bay area.
Issues
A national framework is needed to ensure a coordinated review of dredged
material under the Section 404 and Section 103 programs.
- Currently the requirements (particularly, the testing requirements) are
perceived to be more stringent for ocean disposal than for disposal in
Section 404 waters.
- Unlike the ocean dumping program, there are no national requirements
on sediment testing and evaluation under Section 404, although the
Section 404(b)(1) Guidelines provide general guidance on evaluation of
dredged material disposal.
• We are tentatively planning to adopt ocean dumping testing manual for use in
the Section 404 program whenever possible.
• We are also developing a joint strategy document which will provide a
decision-making framework for determining an environmentally acceptable
disposal option.
SECTION 404(b)(1) GUIDELINES (see attached flowchart)
• EPA’s Section 404(b)(1) Guidelines contain the substantive environmental
criteria used in evaluating discharges of dredged or fill material.
• The fundamental precept of the Guidelines is that “dredged or fill material
should not be discharged into the aquatic ecosystem, unless it can be
Office of Wetlands Protection March 28, 1990
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Section 494 oF the Clean Water Act An Overview Page 6
demonstrated that such a discharge will not have an unacceptable adverse impact
either individually or in combination with known and/or probable impacts of
other activities affecting the ecosystems of concern.” (Section 230.1(c))
• In addition, one of the primary requirements of the Guidelines is that no
discharge can be permitted if there is a practicabi? alternative with less adverse
impact on the aquatic environment (unless the identified alternative poses other
significant environmental problems).
• This alternatives test is applied more rigorously (i.e., alternatives are presumed
to exist) for projects that are proposed to be located in special aquatic sites
when the project is not water dependent? Special aquatic sites include:
wetlands, coral reefs, mud flats, riffle pool complexes in streams, vegetated
shallows, and sanctuaries and refuges.
• No discharge can be permitted under the Guidelines if it would violate other
applicable laws, such as State water quality standards, toxic effluent standards, or
the Endangered Species Act.
• No discharge can be permitted under the Guidelines if it would cause or
contribute to significant degradation of waters of the U.S.
• In addition, discharges may be permitted under the Guidelines only if all
appropriate and practicable steps are taken to minimize (i.e., mitigate) the
adverse impacts of the discharge on the aquatic ecosystem, including
compensating for unavoidable impacts.
ADDRESSING UNACCEPTABLE ADVERSE IMPACTS
Sec/ io u 404(q)
• EPA works with the Corps of Engineers during the permit decision process
whenever possible to ensure unacceptable adverse impacts are avoided, and most
concerns are resolved through this interagency consultation.
• The Corps and EPA have developed a process (the Memorandum of
Agreement under Section 404(q)) to resolve any differences over permit
decisions.
• Disputes not resolved in the field may ultimately be elevated to the Assistant
Administrator level and Army’s Assistant Secretary for Civil Works.
Office of Wetlands Protection March 28, 1990
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Section 404 of the Clean Water Act An Oveiview Page 7
We have initiated discussions with the Corps concerning potential revisions to
the Section 404(q) MOA, and will work this year on developing any necessary
modifications.
Seci,on 404(c)
Under the authority of Section 404(c), EPA may prohibit, withdraw, or restrict
disposal of dredged or fill material into waters of the United States if the
discharge would have unacceptable adverse effects on municipal water supplies,
shellfish beds and fishery areas (including spawning and breeding areas), wildlife,
or recreational areas.
• This authority may be used before, during or after Corps action on a permit
application. EPA may also exercise this authority in the absence of a specified
permit application or Corps regulatory action.
Advance Identification
• The Guidelines also provide for an Advance Identification (AD ID) process,
where EPA and the Corps work together to designate areas as generally suitable
or unsuitable for the discharge of dredged or fill material. This process does not
represent a final regulatory decision. Instead, ADID is used only as an
informational tool to facilitate future permit processing.
ENFORCEMENT
Awhorities
• EPA and the Corps share Section 404 enforcement authority.
• Section 309 authorizes the Administrator to enforce against persons discharging
without a permit or in violation of the terms of a permit.
• Under Section 404(s), the Corps has authority to enforce against violations of
Corps-issued permits. In addition, the Corps has exercised enforcement authority
against unpermitted dischargers and these actions have been upheld by the
courts,
• Given the Corps’ larger field presence and its role as the federal permit-issuing
authority, EPA has focused its enforcement efforts against unpermitted
dischargers.
Office of Wetlands Protection Match 28, 1990
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Section 404 of the Clean Water An: An Oveniew Page 8
This division of responsibility is formalized in the 1989 Enforcement MOA.
EPA is the lead enforcement agency (i.e., its determinations as to what, if any,
enforcement actions to pursue are final) for the most important unpermitted
discharge cases. The Corps is the lead enforcement agency with regard to
Corps-issued permit violations.
Mec/tanis ins
• Under Section 309(a), EPA is authorized to issue an administrative compliance
order (AO) requiring a violator to cease an ongoing violation, refrain from
committing a future violation, and Where appropriate, to remove unauthorized fill
and otherwise restore the site.
• Section 309(g) gives EPA (and the Corps) the authority to assess
administrative civil penalties for violations of Section 404. Under the provisions
of the Enforcement MOA, EPA is the lead enforcement agency for unpermitted
discharge cases where an administrative penalty may be the appropriate
enforcement response.
• In the judicial arena, Section 309(b) authorizes EPA to initiate civil judicia]
actions for violations of Section 404. In such actions, the government may seek
injunctive relief and/or monetary penalties.
• Section 309(c) gives EPA the authority to bring criminal actions for knowing
and negligent violations of Section 404. Under the new federal Sentencing
Guidelines, which apply to violations occurring after November 1, 1987, Section
404 violators generally will be required to serve some jail time.
Iscues - Admin&nziive Penalty Settlement Guidance
• OW? and OECM-Water continue to work towards completion of interim
Section 404 administrative penalty settlement guidance.
• Recognizing the differences between Section 404 and Section 402 enforcement,
OWP determined that the Section 404 program should not be subject to the 402
program’s administrative penalty policy. (Similarly, the Section 404 program is
not subject to the Clean Water Act civil judicial penalty policy.)
Office of Wetlands Protection March 28, 1990
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Section 404 of the aean Water Act An Over.’iew Page 9
GLOSSARY
Dredged Material
Materials (generally bottom sediments) that are excavated or extracted from waters of the
United States.
Fill Material
Any pollutant which replaces portions of waters of the United States with dry land or
changes the bottom elevation of a water body for any purpose. This term generally includes,
but is not limited to, the building of any structure or impoundment requiring rock, sand, dirt
or other materials for its construction; site-development fills for recreational, industrial,
commercial, residential, or other uses; causeways or road fills; and property protection and/or
reclamation devices such as riprap, groins, seawalls, breakwaters, and revetments. (This is the
EPA definition that focuses on discharges with the “effect” of fill. The Corps definition is
different and focuses on discharges with the “primaly purpose” of fill.)
General Permit
A permit authorizing a category of discharges of dredged or fill material under Section
404. General permits are permits for categories of discharge which are similar in nature, will
cause only minimal adverse environmental effects when performed separately, and will have
only minimal cumulative adverse effect on the environment.
Wetlands
Those areas that are inundated or saturated by surface or ground water at a frequency
and duration sufficient to support, and that under normal circumstance do support, a
prevalence of vegetation typically adapted for life in saturated soil conditions.
Waler Dependency
An activity which requires access or proximity to, or siting within, a special aquatic site to
fulfil] its basic purpose. Water dependent activities may include marinas, boat docks, and
port landfills; non-water dependent activities include restaurants, parking lots, and real estate
developments.
Practicable
An alternative is practicable if it is available and capable of being done after taking into
consideration cost, existing technology, and logistics in light of overall project purposes. If it
is otherwise a practicable alternative, an area not presently owned by an applicant which
could reasonably be obtained, utilized, expanded or managed in order to fulfill the basic
purpose of the proposed activity may be considered as practicable.
Office of Wetlands Protection March 28, 1990
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GENERALIZED SECTtON 404 PERMIT PROCESS
Public Notice
30-day Comment Period
(Corps)
EIS Prepared
(if necessary)
(Corps)
(optional)
(EPA)
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GENERALIZED DIAGRAM - GEOGRAPHIC SCOPE OF CLEAN WATER ACT
TIDAL WATERS
SECTION 404
dtsposa! of dredged or fill material
FRESH WATERS
SECTION 404
disposal of dredged of till matenal
— ( *i an is extsl
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GENERALIZED SECTION 404(B)(1) GUIDELINES EVALUATION PROCESS
No Discharge Will Be Permitted If Any One Of 1
[ the Following Is True:
TPracticable Alternatives Exist Which Would Have Less
Adverse Impact On The Aquatic Ecosystem
(unless the alternative would have other significant
L adverse environmental consequences )
[ Pract;cable’ means available and capable of ) 11! a non-water dependent discharge affects a 1
eing done after taking into consideration costs, special aquatic site, practicable aIternative
L existing technology, and logistics J b are presumed to exist J
Causes or Contributes to Violation of Applicable
L State Water Quality Standards
[ It Causes or Contributes to Violation of Applicable Clean Water
L Act Toxic Effluent Standards
Jeopardizes the Continued Existence of Endangered or Threatened SPecIes ]
r It Violates Any Requirements Imposed To Protect Federally
Designated Marine Sanctuaries
r it Causes Or Contributes To Significant Degradation of
L Waters of The United States
[ All Appropriate And Practicable Steps Have Not Been Taken To
Minimize Potential Adverse Impacts To the Aquatic Ecosystem
( cial Aquatic Sites include wetlands, mudilats, vegetated shallow
sanctuaries/refuges, riffle/pool complexes. and coral reefs
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HIGHLIGHTS OF SECTION 404’
FEDERAL REGULATORY PROGRAM
TO
PROTECT WATERS OF THE UNITED STATES
INTRODUCTION
The U.S Congress enacted the
Clean Water Act to restore and
maintain the chemical, physical, and
biological integrity of the Nation s
waters.’ Section 404 of the Clean
Water Act regulates the discharge of
dredged and till material into waters
of the United States, and establishes
a permit program to ensure that such
discharges comply with environmental
req uiremerus. The Section 404
program is administered at the
federal level by the U.S. Army Corps
of Engineers (Corps) and the U.S.
Environmental Protection Agency
(EPA). The U.S. Fish and Wildlife
Service (FWS) and the National
Marine Fisheries Service (NMFS)
have important advisory roles. The
Corps has ihe primary responsibility
for the permit program and is
authorized, after notice and
opportunity for a public hearing, to
issue permits for he discharge of
dredged or fill material. States can
assume a portion of the pennitting
program from the federal government
(for some waters only), but there has
been limited interest by the States.
EPA has primary roles in several
aspects of the Section 404 program
including development of the
envirQnmernal guidelines by which
permit appLications must be
evaluated; review of proposed
permits; prohibition of discharges
with unacceptable adverse impacts;
approval and oversight of State
assumption of the program;
establishment of jurisdictional s pe
of waters of the United States; and
interpretation of Section 404
exempttons. Enforcement authority
is shared between EPA and the
Corps.
Waters of the United States
protected by the Clean Water Act
include rivers, streams, estuaries, the
temtorial seas, and most ponds, lakes
and wetlands. The term wetlands
includes swamps, marshes, bogs and
similar areas. Wetlands are a
particularly important and sensitive
segment of our waters, and therefore
ment special attention. Wetlands
provide critical habitat for many
important species of fish and wildlife,
and export plant particles (catled
deintus) that serve as food for
aquatic organisms in adjacent waters.
Peak floodwaters are absorbed by
wetlands, reducing damage to
downstream property, often farms and
municipalities. Water quality is
improved as a result of a number of
natural processes that remove
pollutants from water flowing through
wetlands. In addition, aesthetic,
recreational, scientific, and
educational values are provided by
these natural aquatic areas. While
not every wetland performs all of
2 The infonnazion contained in this doci4nient is intended to provide a basic understanding of the Section 404
program. it is not a fcrm of policy guidance and should not be relied on as such. For official guidance on
Section 404 pol:c the reader should go to the specific documents (such as the Clean Water Act and the MOA ‘s
between EPA and the Army Corps of Eng’.neer r) or contact the appivpnaze EPA or Corps office.
EPA OUice ot Wet(anth Protection
October 1989
-------
these functions, healthy wetlands
provide one or more of these or
other valuable services.
Throughout history, wetlands
have been misunderstood as
‘wastelands’ to be drained or filled
for conversion to other uses. Within
the last 200 years, over half of the
wetlands in the lower 48 States have
been lost to agnculture, mining,
forestry, oil and gas production.
water resource development and
urbanization. High rates of loss are
continuing; about ten percent of
remaining wetlands were lost in a
recent 20 year interval.
The Section 404 Program is
broadly recognized as the most
significant federal regulatory program
affecting wetlands. However, Section
404 is not a comprehensive wetlands
protection program; it does not
regulate all activities that harm or
affect wetlands (see Appendix 1 for
details on Section 404).
GEOGRAPFIIC SCOPE OF
SECI1ON 404
Like other Clean Water Act
programs, the jurisdiction of Section
404 extends to all waters of the
United States, This phrase includes
waters which are currently used, were
used in the past, or may be
susceptible to use in interstate or
foreign commerce, including:
• all waters which are subject to the
ebb and flow of the tide
• the territorial sea;
• interstate waters and wetlands;
• all other waters (such as intrastate
lakes, rivers, streams and
wetlands), if their use, degradation
or destruction could affect
interstate or foreign commerce;
• tnbutaries to waters or wetlands
identified above; and
• wetlands adjacent to waters
identified above.
in determining waters that are
within the scope of the Clean Water
Act, Congress intended to assert
federal jurisdiction to the broadest
extent permissible under the
commerce clause of the Constitution.
One factor that establishes a
commerce connection is the use or
potential use of waters for
navigation. Other factors include
(but are not limited to) use of a
wetland (or other water) as habitat
by migratory birds, including
waterfowl, use by federally listed
endangered species or for recreation
by interstate visitors.
As defined in Section 404
program regulations, wetlands are
‘those areas that are inundated or
saturated with surface or groundwater
at a frequency and duration sufficient
to support, and that under normal
circumstances do support, a
prevalence of vegetation typically
adapted for life in saturated soil
conditions.’ In applying this
definition in the field, government
agency scientists use indicators of
vegetation, soils and bydroio to
identify wetlands and to establish
their boundaries. Wetlands can be
coastal or inland, saltwater or
freshwater. Around the country,
wetlands may be known by a variety
of names, including swamps, marshes,
bogs, potholes, sloughs, (ens,
mangroves, pocosins, wet meadows,
savannahs, wet tundra, plays lakes
and vernal poois.
AcriviimS REGULATED
BY SECflON 404
Discharges of dredged and flU
material are commonly associated
with activities such as port
development, channel construction
and maintenance, fills to create
development sites, transportation
improvements, and water resource
projects (such as dams, jetties and
levees). Other kinds of activities,
such as tandclearing, are regulated as
Section 404 discharges if they inv -
discharges of dredged or fill material
(e.g., soil) into waters of the United
States. However, some activities
which can adversely affect and even
destroy wetlands, such as drainage
and groundwater pumping, are often
conducted without discharging
dredged or fill matenal into waters of
the United States, and in those
circumstances, are not regulated
under Section 404.
The Federal Clean Water Act
also includes specific exemptions
from permitting requirements for
certain activities ( 404(t)(1)). These
activities include:
1. Normal farming, silviculture,
and ranching practices;
2. Maintenance, including
emergency reconstruction of recently
damaged parts of currently
serviceable structures such as dik’
dams, Levees, groins, rip rap,
breakwaters, causeways, bridge
abutments or approaches, and
transportation structures;
3. Construction or maintenance
of farm or stock ponds or irrigation
ditches or the maintenance (but not
construction) of drainage ditches;
4. Construction of temporary
sedimentation basins on a
construction site which does not
include placement of fill material into
waters of the United States; and
5. Construction or maintenance
of farm or forest roads or temporary
roads for moving mining equipment if
best management practices are
followed.
Section 404(f)(1) is applied
narrowly and is not intended to
exempt activities with more than
minor impacts on aquatic resource
Under the recapture provision at
Section 404(0(2), the exemptions do
EPA Oflic 01 Wetlands Protectioc
2
October 198
-------
not apply if the discharge is part of
or incidental to, an activity whose
purpose is to convert an ares of the
waters of the United States into a
use to which it was not previously
subject, where the flow or circulation
of waters of the United States may
be impaired or the reach of such
waters reduced. This limitation on
the Section 404(1) exemptions would,
for example, require a farmer to
obtain a permit for a discharge to
convert a wetland area to produce
upland crops.
The Clean Water Act provides
another limited exemption under
Section 404(r) for projects specifical ly
authorized by Congress. To be
covered under this exemption, an
Environmental Impact Statement
under the National Environmental
Policy Act must be prepared on the
project and submitted to Congress.
The Statement must contain
information on the effects of the
discharge on environmental values
protected by Section 404, including
consideration of the Section
404(b)(l) Guidelines.
INTRODUCTiON TO THE
PERMIT PROCESS
Discharges can be authorized by
cuter individual or general permits.
If an individual permit is required, an
application form descnbing the
proposed activity is submitted to the
Corps (or to a State agency if the
program has been assumed from the
federal government). O a
complete application Is received, the
peirnitung agency issues a public
notice containing the information
needed to evaluate the likely impact
of the proposed activity. Notice is
sent to all interested parties including
adjacent property owners, appropriate
government agencies at the Federal,
State, and local level, and others as
equested. My person may request
(hat a public hearing be held to
consider the application.
Advance Idendfication of Dirp sal Sitcr
The indivith al permit process wider Sectias 40413 sometImes an
intensive, rUne consuming and conwovasuil case -by-case evaluation
proc Section 230.80 eq the Section 404(b)(1) Guidelines prcrvides
fir a planning process that can result ui a more predictable decision
matting process. In this planning process, informanon is develope4
that can be used by the regulated and general public to plan and
conide potential projects Such infonnation can uichede general
locatkmns and values of warns of the U.S. and potential threats and
impacts to those values Thir process usually results In maps which
provide information on where &schasgrs to waten of the US.,
Uwh Wing wetlands , may be generally suitable or unsuitable.
The Advance !demVTcaSn (AL)LD) process is conducted by the
EPA and the Corps of Engineers (or as State that has assumed the
Section 404 pcrnitthig responsibilities) and includes consultation with
the affected Stare. Active State and local bwolvement result hi a
much better pruducr and are encouraged by both EPA and the Corps
Since the ADID process can require a substantial amount of staff
time and flsn4 it is usualfr conducted ftc areas that have iniponans
resource value and are wider development pressure Further, the area
that L i studied and mapped Li usual?,’ a vesy limited portion of a
watershed. Attempts are made to limit the geographic extent of the
AViD to a manageable size.
The AVID process may involve collecting turing data and
generating new data as the aquatic system and Its value to surrounding
and dmvnsveam aquatic ecoiystentt This Usfonno4on Li then used to
detmnine which teat Cr she mats valuable and, therefore, U t need of
the highest levels cfproiectiot
The products that rwdt — the AViD process include, at a
minimwn designation of areas as generalty suitable or unsuitable for
use as a discharge sue. Additional actions quite often resul4 such as
sane asukipatay method q’prorecting the most valuable areas. For
carspie, ADIOs may tenth f r i State or local land cue or regulatory
resnictionsj or use of EPA’s Section 404(c) authority to restrict or
prohibit discharges to a defined area. The Corps may issue general
pamla for certain activities in portions of the area designated as
srzisabkfm’ disposaL
EPA 011 1cc o( Wetlands Prtxectmo
3
Oaober t9€9
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General permits eliminate the
need for individual permits for some
activities which conform to specified
terms and conditions. General
permits may be issued on a State,
regional or nationwide basis. Section
404(e) authorizes general permits for
activities which are similar in nature
and will cause minimal adverse
environmental effects individually or
cumulatively. General permits are
developed through the same public
notice and opportunity for public
hearing process that is used for an
individual permit. Once issued, a
general permit may be modified or
revoked if the pernutted activities are
found io have an adverse
environmental impact. In some
instances, the discharger must notify
the Corps prior to discharging under
the authority of the general permit.
Ott a case-by-case basis, the
permitting agency may invoke
discretionary authority and require a
discharger that would otherwise be
covered by a general permit to apply
for an individual permit.
MAKING THE PERMIT
DECISION
The Corps’ evaluation of a
Section 404 permit application is a
iwo pan test which involves
determining whether the project
complies with the Section 404(b)(1)
Guidelines and a public interest
review. A permit must be denied if
the project fails to comply with the
Guidelines or is found to be contrary
to the public interest
The Corp& public interest review
is a balancing test in which the
public and private benefits of a
project are weighed against its
adverse impacts to the environment
It includes such considerations as
aesiheiic , recreation, historic values,
economia, water supply, water
quality, energy needs and flood
damage prevention. The Corps also
considers all comments received in
the permit process, whether in
response to a public notice or a
public hearing, in arriving at a final
permit decision. As part of this
evaluation, the Corps conducts an
environmental assessment under the
National Environmental Policy Act
(NEPA) to determine whether the
project has significant environmental
impacts.
The Section 404(b)(1) Guidelines
(Guidelines), published by EPA in
conjunction with the Corps, contain
substantive environmental criteria
used in evaluating discharges of
dredged or flU material. Reflecting
the goals of the Clean Water Act,
the Guidelines establish key policies
for the Section 404 Program:
• Dredged or fill material should
not be discharged into waters of the
United States unless it can be
demonstrated that such a discharge
will not have an unacceptable adverse
impact (individually or cumulatively)
on the aquatic ecosystem.
* From a national perspective, the
degradation or destruction of special
aquatic sites, such as filling
operations in wetlands, is considered
to be among the most severe
environmental impacts addressed by
Section 404.
To implement these policies, the
Guidelines include a number of key
requirements. One of them states
that no discharge can be permitted if
there is a practicable alternative with
less adverse impact on the aquatic
environment (unless the identified
alternative poses other significant
environmental problems). This
alternatives test is applied more
rigorously (i.e., alternatives are
presumed to exist) for projects that
are proposed to be located in special
aquatic sites when the project is not
water dependent For example, boat
docks in a marina require water
access and are water dependent; a
restaurant is not. Special aquatic
sites include: wetlands, coral reefs,
mud flats, riffle and pool complexes
in streams, vegetated shallows and
sanctuaries and refuges. However,
the Guidelines require a
demonstration that no practicable
alternatives exist (as discussed above),
for both water dependent and non-
water dependent projects.
No discharge can be permitted
under the Guidelines if ii would
violate other applicable la , such as
State water quality standards, toxic
effluent standards, or the
Endangered Species Act. The
Guidelines also prohibit any
discharge that would cause or
contribute to significant degradation
of waters of the United States. In
addition, discharges can be permitted
under the Guidelines only if all
appropriate and practicable steps are
taken to minimize (i.e., mitigate) I !
adverse impacts of the discharge ot
the aquatic ecosystem, including
compensating for unavoidable impacts
(see Appendix 2 for details on the
Section 404(b)(1) Guidelines).
In addition to the evaluation
conducted by the Corps under the
Guidelines and their public interest
review, Section 401 of the Clean
Water Act must be complied with
before a permit can be issued.
Section 401 requires that the State in
which an activity occurs must certify
that the activity complies with the
State’s water quality standards or
waive us right to so certify by not
taking action within a specified time.
Similarly, coastal States must concur
that the activity meets the
requirements of the coastal zone
management program (CZMP) of the
Slate or waive their right to concur
by not taking action within a
specified time. CZMPs are
developed by States under the
Coastal Zone Management Act of
19Th
EPA Office of Wetland. Protection
4
October t9$9
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ADDRESSING
UNACCEPTABLE ADVERSE
IMPAC tS
Under the authority of Section
404(c), EPA may prohibit, withdraw,
or restrict the discharge of dredged
or fill material into waters of the
United States if the discharge would
have unacceptable adverse effects on
municipal water supplies, shellfish
beds and fishery areas (including
spawning and breeding areas),
wildlife, or recreational areas. This
authority may be used before, during
or after Corps action on a permit
application. EPA may also exercise
this authority in the absence of a
specified permit application or Corps
regulatory action. In this instance,
EPA may conduct a Section 404(c)
action in conjunction with an
Advance Identification action or a
Special Area Management Plan, or
where otherwise appropriate.
EPA generally exercises its
Section 404(c) ‘veto’ authority when
the regulatory process results in a
permit decision that wouLd have
unacceptable advent effects on
mumcipal water supplies, shellfish
beds and fishery areas (including
spawning and breeding areas),
wildlife, or recreationM areas. In
those cases, EPA ’s Section 404(c)
decision process may include data
collection and analysis, consultation
with the applicant and the Corps, and
public notice with opponunity for a
hearing. EPA is increasing its use of
Section 404(c) authority, but to date
has used it infrequently.
EPA works with the Corps
during the permit decision process
whenever possible to ensure
unacceptable adverse impacts are
avoided, and most concerns are
resolved through this interagency
consultation. The Corps and EPA
have developed a process through a
Memorandum of Agreement (MOA)
to quickly resolve any differences
over permit decisions. In instances
where there has been either
insufficient interagency coordination,
the development of significant new
information, or where the proposed
project raises environmental issues of
national importance, this MOA
allows for EPA ’s Assistant
Administrator for Water to request
that the Army’s Assistant Secretary
for Civil Works elevate the proposed
permit decision to higher authority
for review. The Fish and Wildlife
Service and the National Marine
Fisheries Service have similar
agreements with the Corps.
ENFORCEMENT
As a jointly administered
program, the Corps and EPA share
responsibility for enforcing the
Section 404 program. The Corps, as
the permitting agency, has primary
responsibility for rnonttoring and
enforcement of compliance with
Section 404 permit conditions. EPA
can also enforce against non-
compliance with permit conditions;
ENFORCEMENT
Enforcement it a netessaly component of an effective regula rosy porp’am.
EPA and the Corps share Section 404 enforcement authortry Section 309 of
the Clean Water Act gives EPA the authority to act against persons who
d ischarge without a permit and also to enforce against violations of Sect Ion 404
permit conditions. Section 309 also provides EPA with a variety of enforcement
mechanisms. For erample, an admLnisn’adve compliance order Lsntedpursuwu
to Section 309(a) generalsv requires a violator to stop all illegal discharges and,
where appropriar; to remove thefill andlor restore the site. Section 309(g)
authorizer EPA to assess athnthicn’anve civil penalties for, among other thing;
vjojazioizr of Section 404 A third enforcement mechantim allows EPA so seek
monetary penalties, injunctive rel4 and even prison sentences thzwgh judicial
action pursuant to Sections 309(l ) and (c). Under there Sections EPA may
refer cases to the Department of Justice far ovnfrtal an44r civil litigation.
EPA has focused its resources on identifying and enforcing against
unpermitted discharges of dredged or fill material The Corps has d ie lead on
acting against violations of Corps - issued pennim and has afro been responsible
for a significant amount of the enforcement efforts against unauthorized
discharges.
A Section 404 enforcement case frequently begins with EPA receiving
information regarding a potential violator from a citizen or local officiaL
I’7oladon.r are also discovered by State, EPA or Corps .uaff or other Federal
personnel while in the field on other routine business. Thus state and local
offlcialsfresidenzr can serve as the “eyes and ears’ of EPA in recognizing and
reporting potential Section 404 violations. Starts may also assume the Section
404 program, inchtding nforcement however ever where States assume the
program, the Corps maintains permitting authority in wadisionally navigable
waters.
EPA office at Wetlands Proiectioe
5
October 1989
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however, EPA generally focuses its
resources towards discovering and
enforcing against unpermitted
(unauthorized) discharges. Anyone
in violation of the Section 404
program, either by conducting an
unauthorized activity or by violating
permit conditions, is subject to civil
or criminal action or both. Penalties
can be imposed by the agencies
administratwely, that is, without use
of judicial procedures. When judicial
action is pursued, the violator may be
required to restore the site and may
be subject to payment of fines,
imprisonment or both. The agencies
and the courts also frequently require
restoration of the site and/or
mitigation at the expense of the
violator, often in addition to other
penalties.
STATE PROGRAMS
The Clean Water Act provides
that States may assume a portion of
the Section 404 permitting
responsibility. EPA is responsible
for approval or denial of State
program assumption requests and for
oversight of State programs
subsequent to approval. States may
assume the program in all waters
withtn the State except (1) those
which are subject to the ebb and flow
of the tide, plus adjacent wetlands
and (2) waters which are presently
used or may be susceptible to use
(through reasonable improvement) to
transport interstate or foreign
commerce, plus adjacent wetlands.
The Corps retains jurisdiction over
all waters which the State cannot
assume.
States must meet specific
statutory and regulatory requirements
for an approvable State program.
Some of these requirements are that
the State must: establish
jurisdictional limits equivalent to the
federal rules; regulate at least the fuH
scope of activities regulated by
Section 404; deny permits which do
not comply with the Section
404(b)(l) Guidelines; provide
sufficient public notice and
opportunity for public hearing; have
the authority to enforce compliance
with the program through civil and
criminal penalties and other means;
and be able to terminate or modifr
permits for cause. In addition to the
States and territories, Indian tribes -
may be considered a ‘State’ for
purposes of the Clean Water Act,
including Section 404, if they meet
certai.n requirements.
A number of States actively
exercise their authority under Section
401 of the Clean Water Act, and
coastal states under Section 307 of
the Coastal Zone Management Act,
to certify whether a proposed activity
complies with State water quality
standards, or is consistent with the
State’s coastal zone management
plan, respectively. Both of these
actions by the State apply to
activities regulated by the federal
government and give the State an
effective veto of the proposed
activity.
THE CITIZEN’S ROLE IN
SECTION 404
Aquatic resources, including
wetlands, play an important role in
our lives. They perform valuable
ecological, water quality, hydrologic
and economic functions. Yet these
areas are rapidly disappearing or
being degraded to the point that
their important benefits can no
longer be realized. Increased
awareness and appreciation of the
values and benefits of these natural
areas can lead to a greater
willingness and ability to protect
what is left of them.
The concerned and informed
citizen can play an important role in
the protection of wetlands in
American communities. Once
1 miliar with nearby wetlands and
other aquatic resources, citizens ca.
provide meaningful comments on
public notices on applications for
Section 404 permits. In addition, one
of the most effective enforcement
mechanisms for the Corps and EPA
is notification of either agency when
citizens beLieve wetland filling is not
permitted or the permit conditions
are being violated. Comments are
also encouraged on proposed
regulations implementing
environmental programs at the
Federal, State or local level.
Citizens can also form activist
groups to protect and possibly even
purchase sensitive aquatic
environments such as wetlands, free
flowing streams, lakes, or estuaries
that are subject to development
pressure. Once formed, the group
can work with local governments to
establish protective zoning or State
government to use water quality laws
for protection of these aquatic
ecosystems. In addition to these
efforts, a citizens group can
encourage EPA and the Corps to
help the protection effort through
advance planning such as advance
identification or special area
management planning.
ADD iTIONAL
iNFORMAT iON
Because the Section 404 program
is complex, and application of
regulations and policies to specific
cases is often fact-specific, the reader
may want to contact local offices of
EPA or the Corps for additional
information (see attached office
contacts). For more information on
wetlands, contact EPA Headquarters,
Office of Wetlands Protection
(A .104F), Attention: Public
Information Cfficer, 401 M Street
S.W., Washington, D.C. 20460.
EPA office of Weitandi Protectioc
6
October 1989
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APPENDIX 1
Federal Water Pollution Control Act
Renamed Clean Water Act, 1977 Amendments
The 1972 Amendments to the Federal Water Pollution Control Act i ncluded the addition of the
Section 404 regulatory program.
Section 301(a): States that any discharge of a pollutant (including dredged or fill material) is unlawful
unless permitted under other sections of the Act, including Section 404.
Sections 309
404(s): Provide that the EPA and Corps may initiate administrat Ive or judicial enforcement
action against violations, including discharging dredged or fill material without a Section
404 permit, or violating the conditions of an issued permit.
Section 404(a): Provides that the Corps may issue permits, after public notice and opportunity for a
public hearing, for the discharge of dredged or fill material into waters of the United
States, at specified disposal sites.
Section 404(b): Each disposal site shall be specified by the Corps through application of guidelines
developed by the EPA in conjunction with the Corps. The guidelines (known as the
Section 404(b)(I) Guidelines) shall be based upon criteria comparable to those
applicable to ocean discharges under Section 402 (National Pollutant Discharge
Elimination System) permits defined at Section 403(c).
Section 404(c): EPA is authorized to prohibit the specification (including withdrawal of specification) of
any disposal site and to deny or restrict the use of any disposal site. This prohibition or
restriction is based, after public notice and opportunity for public hearing, on
unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas
(including spawning and breeding areas), wildlife, or recreational areas.
The 1977 amendments to the FWPCA included additions to Section 404. Subsections (d) through (t)
were added; notable changes were:
Section 404(e): Provides authority to the Corps to issue general pernuts for a period of up to 5 years
provided the activities covered are similar in nature and will have only minimal adverse
environmental effects individually and cumulatively. The general permit may be issued on
a nationwide, regional or sta lewide basis and is subject to application of the Section
404(h)(1) Guidelines and public notice and opportunity for public hearing procedures.
Section 404(0: Exempts discharges associated with certain limited activities, most dealing with minor
agricultural or silvicultural activities, from requirement to obtain a permit Discharges
associated with activities that convert a water of the United States to upland use are not
exempt.
EPA omc of Wetlands Proecuon 7 October 1989
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Section
404(g)-Q): EstabLishes a mechanism for States to assume administration of the Section 404
regulatory program in certain waters of the United States. Those waters that are subject
to tidal action and their adjacent wetlands and waters which are presently used, or with
reasonable improvement could be used, to transport tnterstate or foretgn commerce and
their adjacent wetlands are not assumable (these waters are the same as those the Corps
determines to be subject to Section 10 of the Rivers and Harbors Act of 1899, except
for historical Section 10 waters, plus adjacent wetlands).
Section 404(q): Requires that the Corps enter into memoranda of agreement with EPA, Department of
Commerce, Department of the Intenor, Department of Agriculture and Department of
Transportation to minimize duplication and delay in decisionmaking.
Section 404(r): Provides that the discharge of fill material as part of a federal project specifically
authorized by Congress is not subject to the requirements of Section 404, prowled that
information on the effects of the discharge, including consideration of the Section
404(b)(1) Guidelines, is included in the environmental impact statement under the
National Environmental Policy Act provided to Congress prior to authorization.
EPA Offlix o( Wctt*nds Protect,oe $ October 198
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APPENDIX 2
Section 404(b)(1) Guidelines
Restrictions on Discharges
In order to be permitted under Section 404 of the Clean Water Act, an activity must be found to be
in comphance with the Section 404(b)(1) Guidelines (40 CFR 230). There are several specific
resincuons on discharges listed in 40 CF1 230.10.
40 CFR 230.10(a): States that ‘no discharge of dredged or fill material shall be permitted if there is
a practicable alternative to the proposed discharge that would have less adverse
impact on the aquatic ecosystem, so long as the alternative does not have other
significant adverse environmental consequences.” A practicable alternative is
defined as one that ‘is available and capable of being done after taking into
consideration cost, existing technolo ,, and logisues in Eight of overall project
purposes.’ An alternative does not have to be owned by an applicant to be
considered practicable. The burden of proof is always on the applicant to
demonstrate that there are no available practicable alternatives. Moreover, the
alternatives test includes two presumptions when discharges are proposed for
special aquatic sites, including wetlands:
1. for activities which are not water dependent, “practicable alternatives that do
not involve special aquatic sites are presumed to be available, unless clearly
demonstrated otherwise,’ and
2. ‘where a discharge is proposed for a special aquatic site, all practicable
alternatives to the proposed discharge which do not involve a discharge into a
special aquauc site are presumed to have less adverse impact on the aquatic
ecosystem, unless clearly demonstrated otherwise.’
40 CFR 230.10(b): This restriction ii based on compliance of the proposed activity with several
other environmental laws, including: applicable water quality standards, to c
effluent standards, Endangered Species Act, and marine sanctuaries designated
under the Marine Protection, Research, and Sanctuaries Act of 1972.
40 CFR 230.10(c): This restriction states that ‘no discharge of dredged or fill material shall be
perinlued which will cause or contribute to significant degradation of the waters
of the United States.’ This determination involves a consideration of impacts on
human health; aquatic life and wildlife dependent on aquatic ecosystems; aquatic
ecosystem diversity, productivity and stability and recreational, aesthetic, and
economic values of the aquatic ecosystem.
40 CFR 230.10(d): This restriction states that ‘no discharge of dredged or fill material shall be
permitted unless appropriate and practicable steps have been taken which will
minimize [ mitigatej potential adverse impacts of the discharge on the aquatic
ecosystem.’
EPA Office o( Wetland, Pmiecuon 9 October 1959
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4 4 PRd
OFFICE OF WETLANDS PROTECTION
PROGRAM OFFICE CONTACTS
IN REGIONS
Douglass Thoapson, chief
U.S. EPA - Region I
Wetlands Protection Section (WP-1900)
John F. Kennedy Federal Building
Boston, MA 02203—1911
2
Dan Montella, chief
U.S. EPA - Region II
Wetlands S.ction (2WK-Nwp)
26 Federal Plaza, Rooa 137
Wsv York, WY 1037$
l .CiOi3
Barbara D’Anqelo, chief
U.S. EPA - Region III
Wetlands and Marine Policy Section (3*342)
041 chestnut Street
Philadelphia PA 19107
Ieeioaj
Tho. s Welborn, chief
U.S. EPA - Region IV
Chief, Wetland.. Unit (4WW-Nz3)
345 Courtland Street, WE.
Atlanta, GA 30365
Iec1o _ I
Doug orn, Chief
U.S. EPA - Region V
Panning and Standards Divi .jo
Wetlands Protection Section (5W-TUBa)
230 South Dearborn Street
Chicago, IL 60604
Pboa. I
(214) 655—2260
(913) 236—2823
1i i*aj
Michael Jansky
U.S. EPA - Rqion VI
Technical. Assistance Section (61- ? ’ !)
1445 Ros Avenue
Dallas, TX 75202
Ieeioi 1
Diane Sershberger, chief
U.S. EPA - Region VII
Wetlands Protection Section
726 Minnsiot Avsnus
Kansas City, *3 66101
Sarah Fovl.r (303)
U.S. SPA - Region VIII
Water Quality Requir.aent Section (8WW-$p)
99 10th Street, Suite 500
Denver Place
Denver, CO 80202—2405
Phil Oshida, Chief
U.S. EPA - Region IX
Wetlands Section (W—7-2)
215 Fresont Street
San Francisco, CA 94105
Bill Reilly, Chief
U.S. EPA - Region X
Water Resource.. Asseessant Section (WD—13$)
1200 Sixth Avsnue
Seattle, WA 90101
293—1575
(415) 974—2318
(206) 442—1412
(617) 565—4430
(212) 264—5170
(215) 597—9301
(404) 347—2126
(312) 353—3O7
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WA5H NGTO , 0 C 20460
SEP 1 2 985
orr, or
GtNCI! As. COU 5%CL
MEMORAN DUN
TO: Richard E. Sanderson
Acting Ass istanc Administrator
Office of External Affairs (A-IOOEA)
FROM: Francis S. Blake
General Counsel (L ’-13Q)
SUBJECT: Clean Water Act Jurisdiction over Isolated Waters
At the section 404 oversight hearings before the Senate
Committee on Environment and Public Works on July 15. 1985,
Senator Mitchell asked that you confer with the Office of
General Counsel concerning a jurisdictional question under
the Clean Water Act. Specifically, he asked whether, in
asserting jurisdiction over isolated waters on the basis of
use by migratory birds or endangered species, EPA required
proof that a particular water body was actually used by such
birds or endangered species prior to recognizing jurisdiction
or whether EPA would be satisfied with evidence that such
water body could be so used.
The jurisdiction of the Clean Water Act extends to “waters
ci the United States.’ EPA’s regulations define waters of
the United States to include, Inter alia :
(c) All other waters such as intrastate lakes, rivers,
streams, (including intermittent screams), mudflaca,
sandflats, “wetlands,” slougha, prairie potholes, wet
meadows, plays lakes, or natural ponds the use, degrada-
tion, or destruction of which would affect or could
affect interstate or foreign commerce including any such
waters:
(1) Which are or could be used by foreign or interstate
travelers for recreation or other purposes;
(2) From which fish or shellfish are or could be taken and
sold in interstate or foreign commerce; or
(3) Which are used or could be used for industrial purposes
by industries in interstate commerce.
40 CFR S122.2; 40 CFR S233.3.
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—2-
These regulations Implement the Congressional intent that
Clean Water Act jurisdiction be asserted to the maximum
extent permitted under the Commerce Clause. See, 1 Leg.
iiist., at 178 and 250-51; Avoyelles Sportsmen’s League v.
Marsh , 715 F.2d 897 (5th Cir. 1983); Leslie Salt Co . v.
Froelke , 578 F.2d 742 (9th Cir. 1978). Therefore, the regula-
tions should be broadly construed, subject of course to the
limitations of the Commerce Clause and the actual language of
the regulations.
The specific definition of waters of the United States In
EPA’s regulations has evolved over the years, and it is not
necessary to trace here its entire history since passage of the
Act in 1972. However, it is relevant to note that in 1979
the agency changed the prior definition 1 which simply referred
to waters used by, inter alia , industry in interstate commerce,
to add the phrase “waters the use, degradation, or destruction
of which would affect or could affect ” commerce.1/ As explained
in the preamble, this language was intended to broaden the
definition of waters of the United States based on the suscepti-
bility of a stream of use by industries in interstate commerce
(44 Fed. Reg. 32854, June 7, 1979).
[ T]he regulations no focus, not on the nature of the
stream’s users, but on the characteristics of the stream
itself, and it will no longer be necessary to show actual
industrial use for a stream to fall within the definition.
Id. at 32858.2/
It is now generally accepted that migratory birds and
endangered species may be regulated under the Commerce Clause,
and that this regulation extends to protection of habitat.
See, e.g., Utah v Marsh , 740 F.2d 799 (10th Cir. 1984);
Hughes v. Oklahoma , 441 U.S. 322 (1979); Bailer v. Holland,
12 F.2d 317 (4th Cir. 1942); PaUla v. Hawaii Dep’t of Land
and Natural Resources , 471 F. Supp. 985 (D. Ha. {979), aff’d
639 F.2d 495 (9th Cir. 1981). The impact on commerce of the
destruction of any one isolated wetland need riot itself be
1/ This change was made after an Office of General Counsel
— opinion interpreted the old definition as not covering
intrastate waters at or below a discharge point where there
was no actual use by a downstream industrial user. Decision
of the General Counsel No. 73 (Dec. 15, 1978).
2/ In addition, the regulation was reworded to make explicit
— the long-held view that the waters specifically mentioned
were not an exclusive list of waters of the United States.
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—3—
significant; Congress has the authority to regulate activities
which cumulatively could have a significant effect even if a
particular individual activity would not. Perez v. United
States , 402 U.S. 146 (1971); Wickard v. Filburri 317 US.
111 (1942); U.S . v . Earth Sciences , Inc., 599 F .2d 368 (10th
Cir. 1979).
With this background, 1 now turn to the specific question
at hand. In simplified terms,, the answer is that if the
evidence reasonably shows that the waters “are used or would
be used ’ by migratory birds or endangered species, it is
covered by EPA’s regulation. Of course, as the preamble to
the 1979 regulation points out, the clearest evidence would
be evidence showing actual use in at Least a portion of the
stream. In addition, if a particular waterbody shares the
characteristics of ocher waters whose use by and vaLue to
migratory birds is well, established and those characteristics
make it likely that the waterbody in question will also be
used by migratory birds, it would also seem to fall clearly
within the definition (unless, of course, there is other
infor acion chat indicates the particular waterbody would not
in fact be so used).
Endangered species are, almost by definition, rare.
Therefore, in the case of an endangered species, if there is
no evidence of actual use of the waterbody or similar waters
in the area by the species in question, presumably one would
usually assume that the waterbody was not susceptible to use
by such species, notwithstanding the particular characteristics
of the waterbody. Again, a specific determination of juris-
diction would turn on the particuLar facts.
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Corps of Engineers Preamble Language
33 CFR Parts 320 through 330
51 FR 41217 (November 13, 1986)
SecLron 3283. Definitions This section
incorporates the definitions previously
found in 3233 (a). (c). (d). (1) and (gJ.
Paragraphs (c). (d). (fl and (g) were
incorporated without change EPA has
clarified that waters of the United State,
at 40 CFR 328.3(a)(3) also include the
followrng waters:
a Which are or would be used as
habitat by birds protected by Migratory
Bird Treaties, or
b. Which ste or would be used as
habitat by other migratory birds which
cross state lines; or
c. Which are or would be used as
habitat for endangered species: or
c i. Used to irrigate ops sold In
interstate commerce.
EPA Preamble Language
40 CFR Parts 232 and 233
53 FR 20765 (June 6, 1988)
Ses eral questions hate anser. about
this apphcation of this definition to
isolated waters i hich are or could be
used by migratory birds and endai o ed
species As the Agency explained in an
opinion by the General Counsel dated
September 12. 98 if evidence
reasonably indicates that isolated
waters are or would be used by
migratory birds or endangered species
they are covered by EPA’s regulation Of
course, the clearest evidence would be
evidence showing actual use in at least
a portion of the waterbody in aditicn if
a particular waterbody shares the
characteristics of other waterbodies
whose use by and value to migratory
birds as well established, and those
charactenstics make it lil elv that the
waterbody ri question would also be
used by migratory birds it would also
seem to fall clearly s tthin the def init icn
(unless. of course i’lere is other
information that indicates the particular
waterbody would not in fact be so
used) Endangered species are almost
b definition, rare Therefore in the case
of endangered species if there is no
esidence of actual use of the a:e-budy
(or similar waters in the area) by the
species in questicri. one could actual’v
assume that the aterbody ‘. as not
susceptible to use by such species.
noiwithstand,ng the part.cular
characteristics o! the waterboth
Ho e er. In each case a spec:fc
determination of jurisd ctio’i would have
to be made, and %%ould turn on the
particular facs
For clarity and consistency, e are
adding the fotiasvirig language from the
preamble to the Corps regu’at on5
published on No% ember 13, 1988 (51 FR
41217). Iii is language clarifies some
cases that typically are or are not
considered “waters of the Un:t d
Stales.”
Waters of the United States’
typically include the following waters
• Which are or would be used as
habitat by birds protected by Migratory
Bird Treaties, or
• Which are or would be used as
habitat by other migratory birds s hich
cross State lines. or
• Which are or would be used as
habitat for endangered species. or
• Used to irrigate crops sold in
interstate commerce
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MEMORANDUM
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. DC. 20460
JAN 251990
OFFICE OF
WATER
SUBJECT:
FROM:
aean Water Act Section 404 Jurisdiction Over Isolated Waters in Light of
Tahb Lakes v. United Sia
David G. Davis, Di:
Office of Wetlands
TO:
Regional Wetlands Division Directors
Office of Regional Counsel Water Branch Chiefs
As a result of the Fourth Circuit Court decision in Tabb Lakes v. United States, the
attached Environmental Protection Agency/Corps of Engineers memorandum was
developed to provide guidance on the regulation of isolated waters pending completion
of rulemaking on this subject.
Please direct any questions or comments concerning this memorandum to Steve
Neugeboren in the Office of General Counsel (FTS 382-7703), or to Suzanne Schwartz,
Greg Peck, or Cliff Rader of my staff (Fl’S 475-7799).
Attachment
cc w/attachment: Regional Wetlands Coordinators
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DEPARTMENT OF THE ARMY
U S Army Corps o Engr eers
WAS NGTO , CC 2O3 4- OOO
PEPL’ IC
AIICNTION OF
24 JAN 1 9Q
CECW—OR
MEM0RANDU 1 FOR SEE DISTRIBUTION
SUBJECT: Clean Water Act Section 404 Jurisdiction Over Isolated
Waters in Light of Tabb Lakes v. United States
1. As a result of the Fourth Circuit Court decision in Tabb Lakes
v. United States the enclosed Corps of Engirteers/Envirorunental
Protection Agency memorandum was developed to provide guidance on
the regulation of isolated waters pending con pletion of rulemaking
on this subject.
2. Questions or comments concerning this guidance should be
directed to Dr. John Hall (202) 272-0201 or Mr. Lance Wood (202)
272—0035.
FOR THE DIRECTOR OF CIVIL WORI
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United States Environmental Protection Agency
United States Department of the Army
SUBJECT: Clean Water Act Section 404 Jurisdiction Over Isolated Waters in Light of
Tabb Lakes v. United States
1. On September 22, 1989, in an unpublished opinion, the United States Court of
Appeals for the Fourth Circuit held that the Corps of Engineers may not rely upon
memoranda issued on November 8, 1985, and February ii, 1986, by Brigadier General
Kelly, then Deputy Director of Civil Works, to assert jurisdiction over isolated waters
under section 404 of the Clean Water Act. Tabb Lakes v. United States, (No. 89-2905,
4th Cir.). This memorandum provides direction on the continued assertion of
junsdiction over isolated waters, as required by 33 CFR 32&3(a)(3), in the wake of the
Tabb Lakes decision.
2. Tabb Lakes focused on an EPA and Corps interpretation of the definition of “waters
of the United States ?l including isolated waters, described at 33 CFR 328.3(a)(3), as
follows:
All other waters such as intrastate lakes, rivers, streams (including
intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie
potholes, wet meadows, playa lakes, or natural ponds, the use, degradation
or destruction of which could affect interstate or foreign commerce,
including any such waters:
(i) Which are or could be used by interstate or foreign travelers for
recreational or other purposes; or
(ii) From which fish or sheflflsh are or could be taken and sold in
interstate or foreign commerce; or
(iii) Which are used or could be used for industrial purpose by industries
in interstate commerce..
The EPA General Counsel issued guidance on September 12., 1985, interpreting this
regi lation to include isolated waters which are or could be used as habitat by birds
protected by Migratory Bird Treaties, migratory birds which cross state lines, and by
endangered species. Brigadier General Kelly adopted this interpretive guidance in the
Corps guidance memoranda cited above which were the subject of the Tabb Lakes
litigation. In Tabb Lakes, the Court held that the Corps may not rely on this
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interpretive guidance in making a jurisdictional determination because the guidance was
a substantive rule that should have been, but was not, proposed for public comment
pnor to its adoption by the agencies. The United States does not intend to appeal the
Fourth Circuit’s Tabb Lakes decision. Instead, the EPA and the Corps intend to
undertake as soon as possible an APA rulemaking process regarding jurisdiction over
isolated waters. This memorandum provides guidance on how Corps FOAs and EPA
Regional Offices should continue to assert CWA jurisdiction over isolated waters in
light of the Court of Appeals decision in Tabb Lakes, and pending completion of the
rulemaking process.
3. The United States believes that the Fourth Circuit’s Tabb Lakes decision was
incorrect and we reserve the right to re-litigate the legal questions decided in the Tabb
Lakes case in other circuits. Because this decision is not binding on courts outside of
the Fourth Circuit, we will not implement the decision outside the area constituting the
Fourth Circuit (i.e., outside the states of South Carolina, North Carolina, Virginia, West
Virginia, and Maryland).
4. Within the Fourth Circuit, we will follow the holding of Tabb Lakes, which was
kmited to the procedural notice-and-comment issue discussed above. Thus, within the
Fourth Circuit, we will not rely upon or cite the above-referenced memoranda in
making jurisdictional determinations. However, we will continue to assert jurisdiction,
as required by the “waters of the United States” regulatory definition, over all waters,
the use, degradation or destruction of which could affect interstate or foreign
commerce, as is required by our existing regulations adopted through the Administrative
Procedure Act rulemaking process. Corps FOAs and EPA Regions will apply this
re ulatory definition to each site on a case-by-case basis, and will evaluate all available
information in a manner consistent with the language of the regulations and the
expressed Congressional intention that Clean Water Act jurisdiction be exercised over
all waters to the fullest extent legally permissible under the Commerce Clause of the
Constitution.
5. The following applies to CWA jurisdiction over all isolated waters within the Fourth
Circuit. The definition of “waters of the United States” at 33 CFR 32&3(a)(3) was
promulgated through the APA rulemaking process and remains in full force and effect
notwithstanding the Tabb Lakes decision. This definition encompasses “isolated” waters,
including isolated wetlands, since it specifically cites as examples of jurisdictional waters
...prairie potholes, wet meadows, [ and) playa lakes...”, all of which are normally
“isolated.” We fully intend to implement the Tabb Lakes decision within the Fourth
Circuit; however, we interpret that decision as allowing the Corps and EPA to continue
to assert CWA jurisdiction over isolated waters. Accordingly, we expect Corps FOAs
and EPA Regional offices within the Fourth Circuit to continue to regulate isolated
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waters, including isolated wetlands, as required by existing regulations. Consultation
with your Office of Counsel is advisable for doubtful cases.
6. If there are any questions with regards to implementation, Corps Divisions should
contact Mr. Lance Wood (CECC-E, (202) 272-0035) or the Chief, Regulatory Branch
(CECW-OR, (202) 272-1785). EPA Regions should contact Mr. Steve Neugeboren
(Office of General Counsel, (202) 382-7703) or Ms. Suzanne Schwartz (Office of
Wet]ands Protection, (202) 475-7799).
For the Chief of Engineers: For the Environmental Protection Agency:
4)9O
P ELMORE at DA 1D G DAViS Date
Chi , Operations, Construction, Director
and Readiness Division Office of Wetlands Protection
Directorate of Civil Works
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MEMORANDUM OF AGREEMENT C sr4
BETWEEN THE ENVIRONMENTAL PROTECtION AGENCY
AND THE DEPARTMENT OF THE ARMY CONCERNING
THE D E l ERMINATION OF MITIGATION UNDER THE
CLEAN WATER ACT SECTION 404(b)(l) GUIDELINES S, 1
I . Purpose
The United States Environmental Protection Agency (EPA) and the United States
Department of the Army (Army) hereby articulate the policy and procedures to be used
in the determination of the type and level of mitigation necessary to demonstrate
compliance with the Clean Water Act (CWA) Section 404(b)(l) Guidelines (“Guidelines”).
This Memorandum of Agreement (MOA) expresses the explicit intent of the Army and
EPA to implement the objective of the CWA to restore and maintain the chemical,
physical. and biological integrity of the Nation’s waters, including wetlands. This MOA is
specifically limited to the Section 404 Regulatory Program and is written to provide
guidance for agency field personnel on the type and level of mitigation which demonstrates
compliance with requirements in the Guidelines. The policies and procedures discussed
herein are consistent with current Section 404 regulatory practices and are provided in
response to questions that have been raised about how the Guidelines are implemented.
The MOA does not change the substantive requirements of the Guidelines. It is intended
to provide guidance regarding the exercise of discretion under the Guidelines.
Although the Guidelines are clearly applicable to all discharges of dredged or fill
material, including general permits and Corps of Engineers (Corps) civil works projects,
this MOA focuses on standard permits (33 CFR 325.5(b)(1))’. This focus is intended
solely to reflect the unique procedural aspects associated with the review of standard
permits, and does not obviate the need for other regulated activities to comply fully with
the Guidelines. EPA and Army will seek to develop supplemental guidance for other
regulated activities consistent with the policies and principles established in this document.
This MOA provides guidance to Corps and EPA personnel for implementing the
Guidelines and must be adhered to when considering mitigation requirements for standard
permit applications. The Corps will use this MOA when making its determination of
compliance with the Guidelines with respect to mitigation for standard permit applications.
EPA will use this MOA in developing its positions on compliance with the Guidelines for
‘Standard permits are those individual permits which have been processed through
application of the Corps public interest review procedures (33 CFR 325) and EPA’s
Section 404(h)(I) Guidelines, including public notice and receipt of comments. Standard
permits do not include letters of permission, regional permits, nationwide permits, or
programmatic permits.
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Anrq!EPA MOA Cwavwig due f ,,wi c,i c M wi ioi due S ii dOd(b)(1) Cwdthi,a P e 2
proposed discharges and will reflect this MOA when commenting on standard permit
applications.
II. Po&y
A. The Council on Environmental Quality (CEQ) has defined mitigation in its
regulations at 40 CFR 1508.20 to include: avoiding impacts, minimizing impacts, rectifying
impacts, reducing impacts over time, and compensating for impacts. The Guidelines
establish environmental criteria which must be met for activities to be permitted under
Section 404.2 The types of mitigation enumerated by CEQ are compatible with the
requirements of the Guidelines, however, as a practical matter, they can be combined to
form three general types: avoidance, minimization and compensatory mitigation. The
remainder of this MOA will speak in terms of these more general types of mitigation.
B. The Ctean Water Act and the Guidelines set forth a goal of restoring and
maintaining existing aquatic resources. The Corps will strive to avoid adverse impacts and
offset unavoidable adverse impacts to existing aquatic resources, and for wetlands, will
strive to achieve a goal of no overall net loss of values and functions. in focusing the goal
of no overall net loss to wetlands only, EPA and Army have explicitly recognized the
special signLficance of the nation’s wetlands resources. This special recognition of wetlands
resources does not in any manner diminish the value of other waters of the United States,
which are often of high value. All waters of the United States, such as streams, rivers,
lakes, etc., will be accorded the full measure of protection under the Guidelines, including
the requirements for appropriate and practicable mitigation. The determination of what
level of mitigation constitutes ‘appropriate’ mitigation is based solely on the values and
functions of the aquatic resource that will be impacted. ‘Practicable” is defined at Section
230.3(q) of the Guidelines. 3 However, the level of mitigation determined to be appropriate
and practicable under Section 230.10(d) may lead to individual permit decisions which do
not fully meet this goal because the mitigation measures necessary to meet this goal are
not feasible, not practicable, or would accomplish only inconsequential reductions in
impacts. Consequently, it is recognized that no net loss of wetlands functions and values
may not be achieved in each and every permit action. However, it remains a goal of the
Section 404 regulatory program to contribute to the national goal of no overall net loss of
the nation’s remaining wetlands base. EPA and Army are committed to working with
others through the Administration’s interagency task force and other avenues to help
achieve this national goal.
2 (except where Section 404(b)(2) applies).
3 Section 230.3(q) of the Guidelines reads as follows: “The term piacticah1e means
available and capable of being done after taking into consideration cost, e. cling technology,
and logistics in light of overall pmjecl purposes.” (Emphasis supplied)
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,4n, jT.P4 MOA ‘ w f . 4 (b)(1) P 3
C. In evaluating standard Section 404 permit applications, as a practical matter,
information on all facets of a project, induding potential mitigation. is typically gathered
and reviewed at the same time. The Corps, except as indicated below, first makes a
determination that potential impacts have been avoided to the maximum extent practicable:
remaining unavoidable impacts will then he mitigated to the extent appropriate arid
practicable by requinng steps to minimize impacts and, finally, compensate for aquatic
resource values. This sequence is considered satisfied where the proposed mutlgat on is in
accordance with specific provisions of a Corps and EPA approved comprehensive plan that
ensures compliance with the compensation requirements of the Section 404(h)(l)
Guidelines (examples of such comprehensive plans may include Special Area Management
Plans. Advance Identification areas (Section 230.80), and State Coastal Zone Management
Plans). It may he appropriate to deviate from the sequence when EPA and the Corps
agree the proposed discharge is necessary to avoid environmental harm (e.g., to protect
a natural aquatic community from saltwater intrusion, chemical contamination, or other
deleterious physical or chemical impacts). or EPA and the Corps agree that the proposed
discharge can reasonably he expected to result in environmental gain or insignificant
environmental Tosses.
In determining “appropriate and practicable” measures to offset unavoidable Impacts.
such measures should he appropriate to the scope and degree of those impacts and
practicable in terms of Cost, existing technology, and logistics in light of overall project
purposes. The Corps will give full consideration to the views of the resource agencies
when making this determination.
1. Avoidance. 4 Section 230.10(a) allows permit issuance for only the least
environmentally damaging practicable alternative. 5 The thrust of this section on
alternatives is avoidance of impacts. Section 230.10(a) requires that no discharge shall
he permitted if there is a practicable alternative to the proposed discharge which would
have less adverse impact to the aquatic ecosystem, so long as the alternative does not have
other significant adverse environmental consequences. In addition, Section 230.10(a)(3)
sets forth rebuttable presumptions that I) alternatives for non-water dependent activities
that do not involve special aquatic sites 6 are available and 2) alternatives that do not
involve special aquatic sites have less adverse impact on the aquatic environment.
4 Avoidance as used in the Section 404(b)(1) Guidelines and this MOA does not
include compensatory mitigation.
5 !t is important to recognize that there are circumstances where the impacts of the
project are so significant that even if alternatives are not available, the discharge may not
he permitted regardless of the compensatory mitigation proposed (40 CFR 230.10(c)).
6 Special aquatic sites include sanctuaries and refuges, wetlands, mud flats, vegetated
shallows, coral reefs and riffle pool complexes.
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AnnyiFf A *404 Ca .wn A c of Mz r wit A c r 404(b)(1) Gti in Pqr 4
Compensatory mitigation may not he used as a method to reduce environmental impacts
in the evaluation of the least environmentally damaging practicable alternatives for the
purposes of requirements under Section 230. 10(a).
2. Minimization. Section 230.10(d) states that appropriate and practicable steps to
rninirrnze the adverse impacts will he required through project modifications and permit
conditions. Subpart H of the Guidelines describes several (hut not all) means for
minirhizing impacts of an activity.
3. Compensatory Mitigation. Appropriate and practicable compensatory mitigation
is required for unavoidable adverse impacts which remain after all appropriate and
practicable minimization has been required. Compensatory actions (e.g., restoration of
existing degraded wetlands or creation of man-made wetlands) should be undertaken.
when practicable. in areas adjacent or contiguous to the discharge site (on-site
compensatory mitigation). If on-site compensatory mitigation is not practicable, off-site
compensatory mitigation should he undertaken in the same geogTaphic area if practicable
(i.e.. in close physical proximity and, to the extent possible, the same watershed). In
determining compensatory mitigation. the functional values lost by the resource to be
impacted must he considered. Generally, in-kind compensatory mitigation is preferable to
out-of-kind. There is continued uncertainty regarding the success of wetland creation or
other habitat development. Therefore, in determining the nature and extent of habitat
development of this type, careful consideration should he given to its likelihood of success.
Because the likelihood of success is greater and the impacts to potentially valuahle uplands
are reduced, restoration should be the first option considered.
In the situation where the Corps is evaluating a project where a permit issued by
another agency requires compensatory mitigation, the Corps may consider that mitigation
as part of the overall application for purposes of public notice, hut avoidance and
minimization shall still be sought.
Mitigation banking may he an acceptable form of compensatory mitigation under
specific criteria designed to ensure an environmentally successful hank. Where a mitigation
bank has been approved by EPA and the Corps for purposes of providing compensatory
mitigation for specific identified projects, use of that mitigation bank for those particular
projects is considered as meeting the objectives of Section ll.C.3 of this MOA, regardless
of the practicability of other forms of compensatory mitigation. Additional guidance on
mitigation banking will be provided. Simple purchase or “preservation’ of existing wetlands
resources may in only exceptional circumstances be accepted as compensatory mitigation.
EPA and Army will develop specific guidance for preservation in the context of
compensatory mitigation at a later date.
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4imy FJ’A MOA Ca.r,ng die 1 anwisan , of Mia am wi die S , 40t(b)(1) Gsi ia ñ e 5
I I I. Other flvcSwn
A. Potential applicants for major projects should be encouraged to arrange
preapplication meetings with the Corps and appropriate federal, state or Indian tribal, and
local authorities to determine requirements and documentation required for proposed
permit evaluations. As a result of such meetings, the applicant often revises a proposal
to avoid or minimize adverse impacts after developing an understanding of the Guidelines
requirements by which a future Section 404 permit decision will be made, in addition to
gaining an understanding (if other state or tribal, or local requirements. Compliance with
other statutes, requirements and reviews, such as NEPA and the Corps public interest
review, may not in and of themselves satisfy the requirements prescribed in the Guidelines.
B. In achieving the goals of the CWA, the Corps will strive to avoid adverse
impacts and oftset unavoidable adverse impacts to existing aquatic resources. Measures
which can accomplish this can he identified only through resource assessments tailored to
the site performed by qualitied professionals because ecological characteristics of each
aquatic site are unique. Functional values should be assessed by applying aquatic site
assessment techniques generally recognized by experts in the field and/or the best
professional judgment of federal and state agency representatives, provided such
assessments fully consider ecological functions included in the Guidelines. The objective
of mitigation for unavoidable impacts is to offset environmental losses. Additionally for
wetlands, such mitigation should provide, at a minimum, one for one functional
replacement (i.e., no net loss of values), with an adequate margin of safety to reflect the
expected degree of success associated with the mitigation plan, recognizing that this
minimum requirement may not be appropriate and practicable, and thus may not he
relevant in all cases, as discussed in Section ll.B of this MOA.’ In the absence of more
definitive information on the functions and values of specific wetlands sites, a minimum of
1 to I acreage replacement may be used as a reasonable surrogate for no net loss of
functions and values. However, this ratio may he greater where the functional values of
the area being impacted are demonstrably high and the replacement wetlands are of lower
functional value or the likelihood of success of the mitigation project is low. Conversely,
the ratio may be less than 1 to I for areas where the functional values associated with the
‘For example, there are certain areas where, due to hydrological conditions, the
technology for restoration or creation of wetlands may not be available at present, or may
otherwise be impracticable. In addition, avoidance, minimization, and compensatory
mitigation may not be practicable where there is a high proportion of land which is
wetlands. EPA and Army , at present, are discussing with representatives of the oil
industry, the potential for a program of accelerated rehabilitation of abandoned oil facilities
on the North Slope to serve as a vehicle for satisfying necessary compensation
requirements.
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Anny/FJ’A MOA Caicaiw g the 1 ma 1 al of Màiginin sa the S v 404 (bfl?) Gsa& ia
area being impacted are demonstrably low and the likelihood of success associated with
the mitigation proposal is high.
C. The Guidelines are the environmental standard for Section 404 permit issuance
under the CWA. Aspects of a proposed project may be affected through a determination
of requirements needed to comply with the Guidelines to achieve these CWA
environmental goals.
l i i Monitoring is an important aspect of mitigation, especially in areas of scientific
uncertainty. Monitoring should be directed toward determining whether permit conditions
are complied with and whether the purpose intended to be served by the condition is
actually achieved. Any time it is determined that a permittee is in non-compliance with
mitigation requirements of the permit, the Corps will take action in accordance with 33
CFR Part 326. Monitoring should not be required for purposes other than these, although
information for other uses may accrue from the monitoring requirements. For projects to
be permitted involving mitigation with higher levels of scientific uncertainty, such as some
forms of compensatory mitigation. long term monitoring, reporting and potential remedial
action should he required. This can be required of the applicant through permit
conditions.
E. Mitigation requirements shall he conditions of standard Section 404 permits.
Army regulations authorize mitigation requirements to he added as special conditions to
an Army permit to satisfy legal requirements (e.g., conditions necessary to satisfy the
Guidelines) [ 33 CFR 325.4(a)J. This ensures legal enforceability of the mitigation
conditions and enhances the level of compliance. If the mitigation plan necessary to
ensure compliance with the Guidelines is not reasonably implementable or enforceable, the
permit shall be denied.
F. Nothing in this document is intended to diminish, modify or otherwise affect the
statutory or regulatory authorities of the agencies involved. Furthermore, formal policy
guidance on or interpretation of this document shall be issued jointly.
G. This MOA shall take effect on February 7, 1990, and will apply to those
completed standard permit applications which are received on or after that date. This
MOA may be modified or revoked by agreement of both parties, or revoked by either
party &lone upon six (6) months written notice.
Robert W. Page (date) Laiuaria S. Wilcher (date)
Assistant Secretary of the Army Assistant Administrator for Water
(Civil Works) U.S. Environmental Protection Agency
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t4p
MEMORANDUM OF AGREEMENT
BFFWEEN ThE DEPARTMENT OF THE ARMY AND \
TI lE ENVIRONMENTAL PROTECTION AGENCY CONCERNING
FEDERAL ENFORCEMENT FOR THE SECTION 404 PROGRAM
OF THE CLEAN WATER ACT
I. PURPOSE AND SCOPE
The United States Department of the Army (Army) and the United States
Environmental Protection Agency (EPA) hereby establish policy and procedures
pursuant to which they will undertake federal enforcement of the dredged and fill
material permit requirements (“Section 404 program”) of the Clean Water Act (CWA).
The U.S Army Corps of Engineers (Corps) and EPA have enforcement authorities for
the Section 404 program 1 as specified in Sections 301(a), 308, 309, 404(n), and 404(s) of
the CWA. In addition, the 1987 Amendments to the CWA (the Water Quality Act of
1987) provide new administrative penalty authority under Section 309(g) for violations
of the Section 404 program. For purposes of effective administration of these statutory
authorities, this Memorandum of Agreement (MOA) sets forth an appropriate
allocation of enforcement responsibilities between EPA and the Corps. The prime goal
of the MOA is to strengthen the Section 404 enforcement program by using the
expertise, resources and initiative of both agencies in a manner which is effective and
efficient in achieving the goals of the CWA.
II. POLICY
A. General. It shall be the policy of the Army and EPA to maintain the integrity
of the program through federal enforcement of Section 404 requirements. The basic
premise of this effort is to establish a framework for effective Section 4.04 enforcement
with very little overlap. EPA will conduct initial on-site investigations when it is
efficient with respect to available time, resources and/or expenditures, and use its
authorities as- provided in this agreement. In the majority of enforcement cases the
Corps, becat$e it has more field resources, will conduct initial investigations and use its
authorities as pn*ided in this agreement. This will allow each agency to play a role in
enforcement which concentrates its resources in those areas for which its authorities and
expertise are best suited. The Corps and EPA are encouraged to consult with each
other on cases involving novel or important legal issues and/or technical situations.
Assistance from the U.S. Fish and Wildlife Service (FWS), the National Marine
Fisheries Service (NMFS) and other federal, state, tribal and local agencies will be
sought and accepted when appropriate.
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B. Geographic Jurisdictional Determinations. Geographic jurisdictional
determinations for a specific case will be made by the investigating agency. If asked for
an oral decision, the investigator will caution that oral statements regarding jurisdiction
are not an official agency determination. Each agency will advise the other of any
problem trends that they become aware of through case by case determinations and
initiate interagency discussions or other action to address the issue. (Note: Geographic
jurisdictional determinations for “special cas&’ situations and interpretation of Section
404(f) exemptions for “special Section 404(f) matters” will be handled in accordance
with the Memorandum of Agreement Between the Department of the Army and the
Environmental Protection Agency Concerning the Determination of the Geographic
Jurisdiction of the Section 404 Program and the Application of the Exemptions Under
Section 404(1 ) of the Clean Water Act.)
C. Violation Determinations. The investigating agency shall be responsible for
violation determinations, for example, the need for a permit. Each agency will advise
the other of any problem trends that they become aware of through case by case
determinations and initiate interagency discussions or other action to address the issue.
D. Lead Enforcement Agency. The Corps will act as the lead enforcement agency
for all violations of Corps-issued permits. The Corps will also act as the lead
enforcement agency for unpermitted discharge violations which do not meet the criteria
for forwarding to EPA, as listed in Section IlI.D. of this MOA. EPA will act as the
lead enforcement agency on all unpermitted discharge violations which meet those
criteria. The lead enforcement agency will complete the enforcement action once an
investigation has established that a violation exists. A lead enforcement agency decision
with regard to any issue in a particular case, including a decision that no enforcement
action be taken, is final for that case. This provision does not preclude the lead
enforcement agency from referring the matter to the other agency under Sections
I1I.D.2 and IILD.4 of this MOA.
E. Environmental Protection Measures. It is the policy of both agencies to avoid
permanent environmental harm caused by the violator’s activities by requiring remedial
actions or ordering removal and restoration. In those cases where a complete
remedy/removal is not appropriate, the violator may be required, in addition to other
legal remedies which are appropriate (e.g., payment of administrative penalties) to
provide compensatory mitigation to compensate for the harm caused by such illegal
actions. Such compensatory mitigation activities shall be placed as an enforceable
requirement upon a violator as authorized by law.
LII. PROCEDURES
A. Flow chart. The atta hed flow chart provides an outline of the procedures
2
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EPA and the Corps will follow in enforcement cases involving unpermitted discharges.
The procedures in (B.), (C.), (D.), (E.) and (F.) below are in a sequence in which they
could occur. However, these procedures may be combined in an effort to expedite the
enforcement process.
B. Investigation. EPA, if it so requests and upon prior notification to the Corps,
will be the investigating agency for unpermitted activities occurring in specially defined
geographic areas (e.g., a particular wetland type, areas declared a “special case” within
the meaning of the Memorandum of Agreement Between the Department of the Army
and the Environmental Protection Agency Concerning the Determination of the
Geographic Jurisdiction of the Section 404 Program and the Application of the
Exemptions Under Section 404(f) of the Clean Water Act). Timing of investigations
will be commensurate with agency resources and potential environmental damage. To
reduce the potential for duplicative federal effort, each agency should verify prior to
initiating an investigation that the other agency does not intend or has not already
begun an investigation of the same reported violation. If a violation exists, a field
investigation report will be prepared which at a minimum provides a detailed
description of the illegal activity, the existing environmental setting, initial view on
potential impacts and a recommendation on the need for initial corrective measures.
Both agencies agree that investigations must be conducted in a professional, legal
manner that will not prejudice future enforcement action on the case. Investigation
reports will be provided to the agency selected as the lead on the case.
C. Immediate Enforcement Action. The investigating or lead enforcement agency
should inform the responsible parties of the violation and inform them that all illegal
activity should cease pending further federal action. A notification letter or
administrative order to that effect will be sent in the most expeditious manner. If time
allows, an order for initial corrective measures may be included with the notification
letter or administrative order. Also, if time allows, input from other federal, state,
tribal and local agencies Will be considered when determining the need for such initial
corrective measures. In all cases the Corps will provide EPA a copy of its violation
letters and EPA will provide the Corps copies of its §308 letters and/or §309
administrative orders. These communications will include language requesting the other
agency’s views and recommendations on the case. The violator will also be notified that
the other agency has been contacted.
D. Lead Enforcement Agency Selection. Using the following criteria, the
investigating agency will determine which agency will complete action on the
enforcement case:
1. EPA will act as the lead enforcement agency when an unpermitted activity
involves the following:
3
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a. Repeat Violator(s);
b. flagrant Violation(s);
c. Where EPA requests a class of cases or a particular case; or
d. The Corps recommends that an EPA administrative penalty action
may be warranted.
2. The Corps will act as the lead enforcement agency in all other
unpermitted cases not identified in Part 111 D.1. above. Where EPA
notifies the Corps that, because of limited staff resources or other reasons,
it will not take action on a specific case, the Corps may take action
commensurate with resource availability.
3. The Corps will act as the lead enforcement agency for Corps-issued
permit condition violations.
4. Where EPA requests the Corps to take action on a permit condition
violation, this MOA establishes a “right of first refusal” for the Corps.
Where the Corps notifies EPA that, because of limited staff resources or
other reasons, it will not take an action on a permit condition violation
case, the EPA may take action commensurate with resource availability.
However, a determination by the Corps that the activity is in compliance
with the permit will represent a final enforcement decision for that case.
E. Enforcement Response. The Jead enforcement agency shall determine, based on
its authority, the appropriate enforcement response taking into consideration any views
provaled by the other agency. An appropriate enforcement response may include an
administrative order, administrative penalty complaint, a civil or criminal judicial referral
or other appropriate formal enforcement response.
F. Resolution. The lead enforcement agency shall make a fma l determination that
a violation is resolved and notify interested parties so that concurrent enforcement fi]es
within another agency can be closed. In addition, the lead enforcement agency shall
make arrangements for proper monitoring when required for any remedy/removal,
compensatory mitigation or other corrective measures.
0. After.the-Fact Permitr. No after-the-fact (ATF) permit application shall be
accepted until resolution has been reached through an appropriate enforcement
response as determined by the lead enforcement agency (e.g., until all administrative,
legal and/or corrective action has been completed, or a decision has been made that no
enforcement action is to be taken).
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LV. RELATED MATtERS
A. Interagency Agreements. The Army and EPA are encouraged to enter into
interagency agreements with other federal, state, tribal and local agencies which will
provide assistance to the Corps and EPA in pursuit of Section 404 enforcement
activities. For example, the preliminary enforcement site investigations or post-case
monitoring activities required to ensure compliance with any enforcement order can be
delegated to third parties (e.g., FWS) who agree to assist Corps/EPA in compliance
efforts. However, only the Corps or EPA may make a violation determination and/or
pursue an appropriate enforcement response based upon information received from a
third party.
B. Corps/EPA Field Agreements. Corps Division or District offices and their
respective EPA Regional offices are encouraged to enter into field level agreements to
more specifically implement the provisions of this MOA.
C. Data Information Exchange. Data which would enhance either agency’s
enforcement efforts should be exchanged between the Corps and EPA where available.
At a min]mum, each agency shall begin to develop a computerized data list of persons
receiving ATF permits or that have been subject to a Section 404 enforcement action
subsequent to February 4, 1987 (enactment date of the 1987 Clean Water Act
Amendments) in order to provide historical compliance data on persons found to have
illegally discharged. Such information will help in an administrative penalty action to
evaluate the statutory factor concerning history of a violator and will help to determine
whether pursuit of a criminal action is appropriate.
V. GENERAL
A. The procedures and responsibilities of each agency specified in this MOA may
be delegated to subordinates consistent with established agency procedures.
B. The policy and procedures contained within this MOA do not create any rights,
either substantive or procedural, enforceable by any party regarding an enforcement
action brought by either agency or by the U.S. Deviation or variance from these MOA
procedures will not constitute a defense for violators or others concerned with any
Section 404 enforcement action.
C. Nothing in this document is intended to diminish, modify or otherwise affect
the statutory or regulatory authorities of either agency. All formal guidance interpreting
this MOA shall be issued jointly.
5
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D. This agreement shall take effect 60 days after the date of the ‘ast signature
below and will continue in effect for five years unless extended, modified or revoked by
agreement of both parties, or revoked by either party alone upon six months written
notice, prior to that time.
ABv 3i7Y . J4*) M, /1/ ,
age (Date)
, stant Secretary of
the Army (Civil Works)
Rebecca W. Hanmer (Date)N
Acting Assistant Administrator
for Water
U.S. Environmental Protection Agency
(
6
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CORPS/EPA ENFORCEMENT PROCEDURES
FOR SECTION 404 UNPERMITTED VIOLA TIONS
Yes
NO
NO
YES
EPA FOLLOWS WA
— +1 SE ON 309 PROCEDURES ]
YES
INVESTIGATING AGENCY
ISSUES C&D/AO (copy
to other agency)
r
CORPS FOLLOWS
33 CFR 326 PROCEDURES
NO
* Enforcement procedures for permit condition violation cases
are set forth at Part III.D.3. and III.D.4.
** Procedures for investigating unpermitted activity cases are
set forth at Part 111.8.
* * Examples of situations in which “C” & “D” might arise
include cases which are important due to deterrent value,
due to the violation occurring in a critical priority
resource or in an advanced identification area, involving
an uncooperative individual, etc.
VIOLATION REPORTED TO OR
DETECTED BY THE CORPS OR EPA
WORK INVOLVEB:
A. A WATER OF THE U.S. AND
B. A SECTION 404 DISCHARGE AND
C. AN UNPERMITTED ACTIVITY AND
D. AN ACTIVITY NOT EXEMPTED
BY SECTION 404(f)
INVEBTIGATION* *
ACTIVITY REQUIRES:
A. IMMEDIATE ACTION OR
B. INITIAL CORRECTIVE MEASURES
‘V
LEAD AGENCY 8ELECTION***
ACTIVITY INVOLVES ONE OF THE FOLLOWING:
A. REPEAT VIOLATOR
B. FLAGRANT VIOLATOR(i.e., obvious prior
knowledge)
C. EPA REQUEST THE CASE OR
D. CORPS RECOMMENDS ADMINISTRATIVE PENALTY
7
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# 1t0 S,
DEPARTMENT OF THE ARMY
UNITED STATES ENVIRONMENTAL PROTECI1ON AGENCY
SUBJECT: Section 404 Enforcement Memorandum of Agreement (MOA)
Procedures Regarding the Applicability of Previously-Issued
Corps Permits
1. The MOA Between the Department of the Army and the Environmental Protection
Agency (EPA) Concerning Federal Enforcement for the Section 404 Program of the
Clean Water Act (Section 404 Enforcement MOA) establishes policy and procedures
pursuant to which EPA and Army will undertake federal enforcement of the dredged
and fill material permit requirements of the Clean Water Act.
2. For purposes of effective administration of the statutory enforcement authorities of
both EPA and the U.S. Army Corps of Engineers (Corps), the MOA sets forth an
appropriate allocation of enforcement responsibilities between EPA and the Corps.
Given that the Corps is the federal permit-issuing authority, for purposes of
implementation of the provisions of the Section 404 Enforcement MOA the Corps will
be responsible for determining whether an alleged illegal discharge of dredged or fill
material is authorized under an individuai or general permit.
3. When EPA becomes aware of an alleged illegal discharge, it will contact the
appropriate Corps district and request a determination as to whether the discharge is
authorized by an individual or general permit.
4. A Corps determination that the discharge is authorized by an individual or general
permit represents a final enforcement decision for that particular case. Ukewise, a
Corps determination that the discharge is not authorized by an individual or general
permit (i.e., it is an unpermitted discharge) is final for that particular case.
5. in order ote effective and expeditious action against possible illegal
discharges, district upon request from EPA is responsible for providing a
determina $,In two working days in those cases where EPA provides the Corps
with suffici rAlation to make this determination in the office. However, if
sufficient information is not available to the Corps so that additional investigation by
the Corps is needed before it is able to respond to the EPA request, the Corps will
provide a determination to EPA within 10 working days. if the Corps does not provide
a determination to EPA within the applicable time frame, EPA may continue to
investigate the case and determine whether the activity constitutes an unauthorized
discharge, and the EPA determination will be final for that particular case.
-------
6. Notwithstanding the above provisions, in situations where an alleged illegal discharge
is ongoing and EPA reasonably believes that such discharge is not authorized, EPA may
take immediate enforcement action against the discharger when necessary to minimize
impacts to the environment. However, EPA will also contact the appropriate Corps
district and request a determination as to whether the discharge is authorized by an
individual or general permit. A subsequent determination by the Corps, pursuant to
paragraph five above, that the discharge is authorized represents a final enforcement
decision for that particular case.
7. This guidance shall remain in effect for as long as the Section 404 Enforcement
MOA is in effect, unless revisions to or revocation of this guidance is mutually agreed
to by the two signatory agencies.
eczjrLi 5 APsrf 4 . 4 / if 3 U i ’ ?
6’ Robert W. ge (Date)
C Assistant cretary of
the Army (Civil Works)
Rebecca W. Hanmer
Acting Assistant Administrator
for Water
U.S. Environmental Protection Agency
1c 1a z
(Dátc)
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/V 4 ;.
MEMORANDUM OF AGREEMENT
BETWEEN THE DEPARTMENT OF THE ARMY
AND THE ENVIRONMENTAL PROTECTION AGENCY
CONCERNING THE DETERMINATION OF THE
GEOGRAPHIC JURISDICTION OF THE SECTION 404 PROGRAM
AND THE APPLICATION OF THE EXEMPTIONS
UNDER SECTION 404(f) OF THE CLEAN WATER ACT
I. PURPOSE AND SCOPE .
The United States Department of the Army (Army) and the
United States Environmental. Protection Agency (EPA) hereby
establish the policy and procedures pursuant to which they will
determine the geographic jurisdictional scope of waters of the
United States for purposes of section 404 and the application of
the exemptions under section 404(f) of the Clean Water Act (CWA).
The Attorney General of the United States issued an opinion
on September 5, 1979, that the Administrator of EPA
(Administrator) has the ultimate authority under the CWA to
determine the geographic jurisdictional scope of section 404
waters of the United States and the application of the section
404(f) exemptions. Pursuant to this authority and for purposes
and effective administration of the 404 program, this Memorandum
of Agreement (MOA) sets forth an appropriate allocation of
responsibilities between the EPA and the U.S. Army Corps of
Engineers (Corps) to determine geographic jurisdiction of the
section 404 program and the applicability of the exemptions under
section 404(f) of the CWA.
II. POLICY .
It shall be the policy of the Army and EPA for the Corps to
continue to perform the majority of the geographic jurisdictional
determinations and determinations of the applicability of the
exemptions under section 404(f) as part of the Corps role in
administering the section 404 regulatory program. It shall also
be the policy of the rmy and EPA that the Corps shall fully
implement EPA guidance on determining the geographic extent of
section 404 jurisdiction and applicability of the 404(f)
exemptions.
Case—specific determinations made pursuant to the terms of
this MOA will be binding on the Government and represent the
Government’s position in any subsequent Federal action or
litigation regarding the case. In making its determinations, the
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—2—
Corps will implement and adhere to the “Federal Manual for
Identifying and Delineating Jurisdictional Wetlands,” EPA
guidance on isolated waters, and other guidance, interpretations,
and regulations issued by EPA to clarify EPA positions on
geographic jurisdiction and exemptions. All future programmatic
guidance, interpretations, and regulations on geographic
jurisdiction, and exemptions shall be developed by EPA with input
from the Corps; however, EPA will be considered the lead agency
and will make the final decision if the agencies disagree.
III. DEFINITiONS .
A. Special Case . A special case is a circumstance where
EPA makes the final determination of the geographic jurisdic-
tional scope of waters of the United States for purposes of
section 404.
Special cases may be designated in generic or project—
specific situations where significant issues or technical
difficulties are anticipated or exist, concerning the
determination of the geographic jurisdictional scope of waters of
the United States for purposes of section 404 and where
clarifying guidance is or is likely to be needed. Generic
special cases will be designated by easily identifiable political
or geographic subdivisions such as township, county, parish,
state, EPA region, or Corps division or district. EPA will
ensure that generic special cases are marked on maps or some
other clear format and provided to the appropriate District
Engineer (DE)
B. Special 404(f) Matters . A special 404(f) matter is a
circumstance where EPA makes the final determination of the
applicability of exemptions under section 404(f) of the CWA.
A special 404(f) matter may be designated in generic or
project—specific situations where significant issues or technical
difficulties are anticipated or exist, concerning the
applicability of exemptions under section 404(f), and where
clarifying guidance is, or is likely, to be needed. Generic
special 404(f) matters will be designated by easily identifiable
political 0 1 r geographic subdivisions such as township, county,
parish, state, EPA region, or Corps division or district and by
specific 404(f) exemption (e.g., 404(f) (1) (A)).
IV. PROCEDURES .
A. Regional Lists . Each regional administrator (RA) shall
maintain a regional list of current designated special cases and
special 404(f) matters within each region, including
documentation, if appropriate, that there are no current
designated special cases or special 404(f) matters in the region.
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—3—
The R h shall create an initial regional list and transmit it to
the appropriate DE within 30 days of the date of the last
signature on this MOA. In order to be eligible for a regional
list, the designated special cases and special 404(f) matter must
be approved by the Administrator. (NOTE: Those geographic areas
designated as current special cases pursuant to the 1980
Memorandum of Understanding on Geographic Jurisdiction of the
Section 404 Program, may be incorporated into the initial
regional lists without additional approval by the Administrator
based on township, county, parish, state or other appropriate
designation, as described in paragraph III. A. of this MOA but
will no longer be designated by forest cover type.)
B. Changes to the Regional Lists . Changes to the regional
lists shill be proposed by the PA and approved by the
Administrator and may include additions to, amendments to, or
deletions from the regional lists. When the Rh proposes an
addition, amendment, or deletion to the regional list, the BA
shall forward the proposal to EPA Headquarters for review and
approval. When the Rh proposes an addition or amendment in
writing or by phone to the appropriate Corps DE, the Corps will
not make a final geographic jurisdictional determination within ’ .
the proposed special case area for a period of ten working days
from the date of the R S notification. The Corps may proceed to
make determinations in the proposed special case area after the
ten day period if it has not been ?rovided final notification of
EPA Headquarters approval of the RAs proposed changes. Deletions
to the regional list do not become effective until a revised
regional list, approved by EPA Headquarters, is provided to the
appropriate DE.
C. Project Reviews . The DE shall review section 404
preapplication inquiries, permit applications, and other matters
brought to his attention, which involve the discharge of dredged
or fill material into waters of the United States to determine if
a current designated special case or special 404(f) matter is
involved.
(1k Special Cases/Special 404(f) Matters.
For those projects involving a current designated
special cats or special 404(f) matter, the DE shall request that
the Rh make the final determination of the geographic juris-
dictional scope of waters of the United States for purposes of
section 404 or applicability of the exemptions under section
404(f). The PA shall make the final determination, subject to
discretionary review by EPA Headquarters, and transmit it to the
DE, and to the applicant/inquirer.
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—4—
(2) Non—Special Cases/Non—Special 404(f) Matters.
For those projects not involving a current
designated special case or special 404(f) matter, the DE shall
make final determinations and communicate those determinations
without a requirement for prior consultation with EPA.
D. Determination of Special Cases or Special 404(f)
Matters . When the special case or special 404(f) matter has been
designated on a project—specific basis, issuance of the final
determination by the RA will serve as guidance relevant to the
specific facts of each particular situation, and will terminate
the special case or special 404(f) matter designation. When the
special case or special 404(f) matter has been designated on a
generic basis, EPA Headquarters will develop, in consultation
with Army, relevant programmatic guidance for determining the
geographic jurisdictional scope of waters of the United States
for the purpose of section 404 or the applicability of exemptions
under section 404(f). Special cases and special 404(f) matters
designated on a generic basis remain in effect until (1) a
deletion from the regional list is proposed and processed
according to paragraph IV—B of this MOA, or (2) EPA Headquarters
issues programmatic guidance that addresses the relevant issues
and specifically deletes the special case or special 404(f)
matter from the regional list(s), whichever occurs first.
E. Uncertainties Regarding Special Cases/Special 404(f)
Matters . Should any uncertainties arise in determining whether a
particular action involves a current designated special case or
special 404(f) matter, the DE shall consult with the RA. Upon
completion of the consultation, the RA will make the final
determination as to whether the action involves a current
designated special case or special 404(f) matter.
F. Compliance Tracking . tn order to track the DE’s
compliance with EPA guidance, the DE shall make his files
available for inspection by the RA at the district office,
including field notes and data sheets utilized in making final
determinatiDns as well any photographs of the site that may be
available. -Copies of final geographic jurisdictional determin—
ations will be provided to the RA upon request at no cost to EPA
unless the sample size exceeds 10 percent of the number of
determinations for the sample period. Copies in excess of a 10
percent sample will be provided at EPA expense. To ensure that
EPA is aware of determinations being made for which notification
is not forwarded through the public notice process, the Corps
will provide copies to EPA of all final determinations of no
geographic jurisdiction and all final determinations that an
exemption under Section 404(f) is applicable. Should EPA become
aware of any problem trends with the DE’s implementation of
guidance, EPA shall initiate interagency discussions to address
the issue.
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V. RELATED ACTIONS .
A. Enforcement Situations . For those investigations made
pursuant to the 1989 Enforcement MOA between Army and EPA
concerning Federal enforcement of section 404 of the CWA, which
involve areas that are current designated special cases, the RA
shall make the final determination of the geographic jurisdic-
tional scope of waters of the United States for purposes of
section 404. The RA t s determination is subject to discretionary
review by EPA Headquarters, and will be binding regardless of
which agency is subsequently designated lead enforcement agency
pursuant to the 1989 Enforcement MOA. For those investigations
not involving special cases, the agencies will proceed in
accordance with the provisions of the 1989 Enforcement MOA.
For those investigations made pursuant to the 1989
Enforcement MOA between Army and EPA concerning Federal
enforcertent of section 404 of the CWA, which involve current
designated special 404(f) matters, the RA shall make the final
determination of the applicability of the exemptions under
section 404(f). The RA determination is subject to discretionary
review by EPA Headquarters, and is binding regardless of which
agency is subsequently designated lead enforcement agency
pursuant to the 1989 Enforcement MOA. For those investigations
not involving special 404(f) matters, the agencies will proceed
in accordance with the provisions of the 1989 Enforcement t WA.
B. Advanced Identification . EPA may elect to make the
final determination of the geographic jurisdictional scope of
waters of the United States for purposes of section 404, as part
of the advanced identification of disposal sites under 40 CFR
230.80, subject to discretionary review by EPA Headquarters, and
regardless of whether the areas involved are current designated
special cases, unless the DE has already made a final geographic
jurisdictional determination. Any determinations under this
section shall be completed in accordance with paragraph IV of
this MOA.
C. 434 (c) Actions . EPA may elect to make the final
determinatiti of the geographic jurisdictional scope of waters of
the United States for purposes of section 404(c) of the CWA.
VI. GENERAL PROVISIONS .
A. All final determinations must be in writing and signed
by either the DE or RA. Final determination of the DE or RA made
pursuant to this MOA or the 1980 Memorandum of Understanding on
Geographic Jurisdiction of the Section 404 Program, will be
binding on the Government and represent the Government’s position
in any subsequent Federal action or litigation concerning that
final determination.
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B. The procedures and responsibilities of each agency
specified in this MOA may be delegated to appropriate
subordinates consistent with established agency procedure.
Headquarters procedures and responsibilities specified in the MOA
may only be delegated within headquarters.
C. Nothing in this document is intended to diminish,
modify, or otherwise affect the statutory or regulatory
authorities of either agency.
D. This agreement shall take effect and supercede the
April 23, 1980, Memorandum of Understanding on Geographic
Jurisdiction of the Section 404 Program on the 60th day after the
date of the last signature below and will continue in effect for
five years, unless extended, modified or revoked by agreement of
both parties, or revoked by either party alone upon six months
written notice, prior to that time.
QL . _______________
Robert Rebecca W. Hanmer
istant S r ary of the Acting Assistant Administrator
Army (Civil Works) for Water
U. S. Environmental Protection
Agency
11 ) I1P aSJwy
Date te
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DEPARTMENT OF THE ARMY
4 < •‘ nw COD’ 0 q £ngiree l$
W ASH I N GTON DC ?0H4 1000
s i
/ q pi.vTO 21
A t Y E NY lO N OF
CECW-ZA
yE::0FJCDU1 T:R Ccrnander, U.S. Army Zn;ir.eer Division, Lower
: !ississippi 7a e
FOR Comi ander, li5. Arry Engineer :istrict, !e . C:lears
SUBJECT: Permit Elevation, Plantation Landing Resort, Inc.
1. By rer orandu dated 3 February 1989, the Assistant Secretary
of the Arry (C:vil ;Jorks) advised e that he had granted the
request of t)-e Znviror.mental Protection Agency (EPAJ and the
Departirent of Corrcerce (DOC) to elevate the perrrit case for
Plantation Landing ?esort, Inc., to HQUSACE for national policy
.evel review of :ssues concerning the practicable alternatives and
nitigation provisions of the 404(b) (1) Guidelines. My review of
the case record provided by the New Orleans District (NOD) leads
re to cor,clude that Corps policy interpreting and implenentirigthe
404(bHl) Guidelines should be clarified in certain respects. OI
course, general guidance interpreting the 404 Cb) (1) Guidelines
ideally should be prepared and promulgated jointly by the Corps
and the EPA. (See 40 CFR 230 .2(c) ). Consequently,
representatives of the Office of the ASA(CW) and the Corps from
time to tir e have worked with EPA attempting to develop joint
ir.terpretive guidance on inportaç t issues under the 404(b) (1)
Guidelines, but no final inter-agency consensus has resulted to
date. Although : hoçe and expect that eventually we will be able
to promulgate joint ArniyfEPA guidance, in the interir I believe
the guidance provided in the attach ment is necessary and :ill
serve a useful purpose.
2. Please re-evaluatç the subject perrit case in light of the
guidance provided in the attachnent, and take action accordingly,
FOR THE CO!.flNDER:
Attachment PATRICK • KELLY
Brigadie ener
Director CiVi’ orkz-
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Attachment
1. The Corps of Engineers permit regulations state the
following at 33 CFR 320.4(a):
“For activities involving 404 discharges, a permit
will be denied if the discharge that would be
authorized by such permit would not comply with
the Environmental Protection Agency’s 404(b) (1)
guidelines.”
2. The 404(b) (1) Guidelines constitute one of the primary
regulatory directives requiring the Corps’ 404 program to
protect wetlands and other special aquatic sites (defined at 40
CFR 230.3 (q-l)) from unnecessary destruction or degradation.
Consequently, proper interpretation and implementation of the
Guidelines is essential to ensure that the Corps provides the
degree of protection to special aquatic sites mandated by the
Guidelines and required by the Corps of Engineers wetlands
policy (33 CFR 320.4(b)).
3. One key provision of the 404(b) (1) Guidelines which clearly
is intended to discourage unnecessary filling or degradation of
wetlands is the “practicable alternative” requirement, 40 CFR
230.10(a), which, in relevant part, provides that:
no discharge of dredged or fill material shall
be permitted if there is a practicable alternative to
the proposed discharge which would have less adverse
impact on the aquatic ecosystem ...“
As explained in the preamble to the Guidelines, this provision
means that:
the Guidelines ... prohibit discharges where
there is a practicable, less damaging alternative
Thus, if destruction of an area of waters of
the t T ni ‘d States may reasonably be avoided, it
should be avoided. (45 Fed. Reg. 85340, Dec. 24,
1980)
4. The 404(b) (1) Guidelines have been written to provide an
added degree bf discouragement for non-water dependent
activities proposed to be located in a special aquatic site, as
follows:
Where the activity associated with a discharge
which is proposed for a special aquatic site (as
defined in Subpart E) does not require access or
proximity to or siting within the special aquatic
sitq i question to fulfill its basic purpose
(i.e., is not “water dependent”), practicable
alternatives that do not involve special aquatic
2
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sites are presumed to be available, unless clearly
demonstrated otherwise. (40 CFR 230.10(a) (3))
The rebuttable presumption created by this provision is intended
to increase the burden on an applicant for a non-water-dependent
activity to demonstrate that no practicable alternative exists
to his proposed discharge in a special aquatic site. This
presumption is added to the Guidelines’ general presumption
against discharges found at 40 CFR 230.1(c), which already
places the burden of proof on the applicant to demonstrate that
his proposed discharge complies with the Guidelines, including
the practicable alternative requirement of 40 CFR 230.10(a ) ..
(See 45 Fed. Reg . 85338, Dec. 24, 1980)
5. One essential aspect of applying the “practicable
alternative” and “water dependency” provisions of the Guidelines
to a particular 404 permit case is to decide what is the “basic
purpose” of the planned activity requiring the proposed
discharge of dredged or fill material. The preamble to the
Guidelines provides the following guidance on the meaning of
“basic purpose”:
“Non-water-dependent” discharges are those
associated with activities which do not require
access or proximity to or siting - within the
special aquatic site to fulfill their basic ,
purpose. An example is a fill to create a
restaurant site, since restaurants do not need to
be in wetlands to fulfill their basic purpose of
feeding people. (45 Fed. Req . 85339, Dec. 24,
1980; emphasis added)
6. The 404(b) (1) analysis for the Plantation Landing Resort,
Inc., application, even when read in conjunction with the
Statement of Findings (SOF) and the Environntental Assessment
(EA), does not deal with the issues of practicable alternatives
and water dependency in a satisfactory manner. The 404(bHl)
evaluation itself is essentially a standard form “checklist ”
with very litt le analysis or project-specific information.
Nevertheless, when one reads the Statement of Findings and
Environmental Assessment for the project, one can determine how
the New Orleans District (NOD) analyzed the project for purposes
of the 404 (b)4fl review.
7. One signiftëant problem in the NOD’s approach to the
404(b) (1) review is found in the following, which is the only
statement in NOD’s 404(b) (1) evaluation document presenting a
project-specific reference to the Plantation Landing case with
respect to the practicable alternative requirement of the
Guidelines:
Several less environmentally damaging alternatives
were identified in the Environmental Assessment.
C T ) 3
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The applicant stated and supplied information
indicating that these alternatives would not be
practicable in light of his overall project
purposes. Recent guidance from LMVD states that
the applicant is the authoritative source of
information regarding practicability
determinations, therefore no less environmentally
damaging practicable alternatives are available.
(NOD’s “Evaluation of Section 404(b) (1)
Guidelines,” Attachment 1, Paragraph l.a.)
This statement appears to allow the applicant to determine
whether practicable alternatives exist to his project.
Emphatically, that is not an acceptable approach for conducting
the alternatives review under the 404 (b) (1) Guidelines. The
Corps is responsible for controlling every aspect of the
404(b) (1) analysis. While the Corps should consider the views
of the applicant regarding his project’s purpose and the
existence (or lack of) practicable alternatives, the Corps must
determine and evaluate these matters itself, with no control or
direction from the applicant, and without undue deference to the
applicant’s wishes.
8. In the instant case, the NOD administrative record gives the
appearance of having given too much deference to the way the
applicant chose to define the purpose of his project, this led
to characterization of project purpose in such a way as to
preclude the existence of practicable alternatives. First, the
NOD’S Statement of Findings (SOF) concludes the following
regarding practicable alternatives:
alternative site analysis resulted in no
available sites occurring on or near Grand Isle
that would allow the applicant to achieve the same
purpose as that intended on the property he now
owns.” (SOF at page 7)
Similarly, NOD’ Environmental Assessment A) makes the
following statement:
“Results of the investigation revealed that a
practicable and feasible alternatives site did not
exist on G and Isle or vicinity that would satisfy
the purpose and need of the recreational
development as proposed on the applicant’s own
property. ” (EA at page 85)
9. A reading of the entire record indicates that NOD accepted
the applicant’s assertion that the project as proposed must be
accepted by. the Corps as the basis for the 404(b)(].) Guidelines
practicabUity analysis. The applicant proposed a
fully—integrated, waterfront, contiguous water-oriented
recreational complex, in the form the applicant proposed.
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Consequently, NOD apparently presumed that no alternative site
could be considered if it could not support in one, contiguous
waterfront location the same sort of fully integrated
recreational complex that the applicant proposed to build. The
EA addresses this point specifically, as follows:
There appear to be alternative sites for the
placement of each component of the project.
However, alternate sites are not preferable by the
applicant because he owns the project site and
wishes to realize corr’inercial values from it. Real
estate investigations revealed that Grand Isle at
present does not offer a less damaging alternative
site which satisfies the applicants purpose and
need as proposed on his own property. (EA at
pages 89—90)
10. The clearest statement from NOD on this point is the
following statement from the SOF, which specifically addresses
the practicable alternative issue:
In a letter dated August 19, 1988, EPA provided to
the Corps verbal and graphic descriptions of their
identified alternative project designs and/or
sites. EPA requested the Corps and the applicant
to consider and evaluate the possibility of
utilizing one or a combination of their suggested
alternatives for the proposed Plantation Landing
Resort. The Corps by transmittal letter dated
August 29, 1988, forwarded a copy of the EPA
alternatives to the applicant’s authorized agent,
Coastal Environments, Inc. Costal Environments,
Inc. by letter dated September 12, 1988, provided
to the Corps the applicant’s response regarding
the feasibility of the EPA alternatives. The
applicant’s response stated that implementation of
any of the EPA alternative project designs and/or
sites would result in , disarticulated project
Corps po1ic ’ states that “an alternative is
practicable if it enables the applicant to fulfill
the basic purpose of the proposed project.” After
reviewing the applicant’s response and evaluating
the alternatives myself I have determined that EPA
proposed afle natives are not feasible or
practicable’ because they would not allow the
applicant to fulfill his intended purpose of
establishing a contiguous, fully-integrated
waterfront resort complex . (SOF at page 10
emphasis added)
11. The effect of NOD’s deferring to and accepting the
applicant’s definition of the basic purpose of his project as a
contiguous, fully-integrated , and entirely waterfront resort
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complex in the form the applicant had proposed was to ensure
that rio practicable alternative could exist. Nevertheless, the
administrative record nowhere provides any rationale for why the
applicant’s proposed complex had to be “contiguous” or “fully
integrated” or why all features of it had to be “waterfront.”
The only reason appearing on the record to indicate why NOD
presumed that the project had to be contiguous, fully
integrated, arid entirely waterfront is that the applicant stated
that that was his proposal, thus by definition that was the
official project purpose which the Corps must use. That is not
an acceptable approach to interpret and implement the 404 (b) (1)
Guidelines. Only if the Corps, independently of the applicant,
were to determine that the basic purposes of the project cannot
practicably be accomplished unless the project is built in a
“contiguous”, “fully integrated,” and entirely “waterfront”
rranrier would those conditions be relevant to the 404 (b) (1)
Guidelines’ alternative review. The fact that those conditions
may be part of the proposal as presented by the applicant is by
no means determinative of that point. Once again, the Corps,
not the applicant, must define the basic purpose underlying the
applicant’s proposed activity.
12. When an applicant proposes to build a development
consisting of various component parts, and proposes that all
those component parts be located on One contiguous tract of land
(including waters of the United States), a question of fact
arises: i.e., whether all component parts, or some combination
of them, or none, really must be built, or must be built in one
contiguous block, for the project to be viable. The applicant’s
view on that question of fact should be considered by the Corps,
but the Corps must determine (and apprcpriately document its
determination) whether in fact some component parts of the
project (e.g., those proposed to be built in waters of the
United States) could be dropped from the development altogether,
or reconfigured or reduced in scope, to minimize or avoid
adverse impacts on waters of the United States. For example, in
the Hartz Mountain Development Corporation application case the
Corps’ New York District was faced with a “block development
project” propos d to be built on one contiguous tract as an
integrated project. Quite properly, the Corps refused to accept
the applicant’s proposal as a controlling factor in our
404 (b) (1) analyais. As the U.S. District Court for New Jersey
stated approvI g1y:
The applicant argued that the shopping
center-office park-warehouse distribution center
was an inextricably related project which required
development on a single interconnected site. This
critical mass theory would require any alternative
to have the capability of handling the entire
multi—faceted project. The Corps of Engineers
rejected this theory. The Corps of Engineers
considered the project as three separate
activities, that is to say, shopping center, office
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park, and warehouse distribution center. ( National Andubon
Society v. Hartz Mountain Development Corp. , No. 83-1534D,
D.N.J., Oct 24, 1983, 14 ELR 20724; case is cited only for
the above-stated point.)
Similarly, the Corps must not presume that the Plantation
Landing Resort necessarily needs to be built in one contiguous
tract of land, or that it must be “fully integrated”, or that
all corponents of it must be “waterfront”, or otherwise that the
project must be built in the form or configuration proposed by
the applicant. Once again, the applicant bears the burden of
roof for all the tests of 40 CFR 320.10 to demonstrate to the
Corps that his project, or any part of it, should be built in
the waters of the United States. The Corps will evaluate the
applicant’s evidence and determine, independently of the
applicant’s wishes, whether all the requirements of the
Guidelines have been satisfied.
13. The “ [ r]ecent guidance from LMVD ” referred to the NOD’s
404(b) (1) evaluation apparently was the 11 March 1987 document
whereby the LMVD Corrartander transmitted to his four District
Corr.r anders the RQUSACE guidance letter of 22 April 1986.
Clarification of our intentions in the HQtJSACE guidance letter
of 22 April 1986 is appropriate herein.
14. The language from the 22 April 1986 letter from HQUSACE
relevant to this discussion is the following:
“Our position is that LWF v. York requires that
alternatives be practicable to the applicant and
that the purpose and need for the project must be
the applicant’s purpose and need.”
The essential point of the HQUSACE policy guidance of 22 April
1986 was that under the 404(b) (1) Guidelines an alternative must
be available to the applicant to be a practicable alterative.
Thus, in the context of LW? v. York , where the applicant
proposed to cear his wetland property to grow soybeans, the
fact that other farzners might be able to supply the United
States with an adequate soybeans supply would not necessarily
preclude the applicant in that particular case from obtaining a
404 permit to ÔlCar his land to raise soybeans. On the other
hand, if affordable upland farmland was available to the
applicant, which he could buy, rent, expand, manage, or
otherwise use to grow soybeans, that upland tract might
constitute a practicable alternative under the Guidelines. The
significance of the HQUSACE 22 April 1986 policy guidance
regarding project “purpose” was that project purpose would be
viewed from the applicant’s perspective rather than only from
the broad, “public” perspective. For example, in the LWF V.
York case 761 F.2d at 1047) the Corps defined the basic purpose
for the applieants’ land clearing project as being “to increase
soybean production or to increase net returns on assets owned by
the company.” That approach to project purpose, viewed from the
S
7
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applicant’s perspective, was upheld as permissible under the
404(b) (1) Guidelines. In contrast, the plaintiffs had urged
that the Corps view project purpose only from the broad, public
perspective, i.e., presumably by defining project purpose as
“providing the U.S. public a sufficient supply of soybeans,
consistent with protection of wetlands”. (Obviously, the U .S.
public arguably might get sufficient soybeans from other sources
even without conversion of wetlands to soybean production.) The
Court held that the Corps is not required by the Guidelines to
define project purpose in the manner most favorable to
“er viron.mental iaintenar.ce ”, or only from the “public”
perspective. However, the Court clearly indicated that the
Corps was in charge of definir g project purpose and determining
whether practicable alternatives exist. Similarly, the HQUSACE
guidance of 22 April 1986 was intended to follow the reasoning
of the Court in TJWF v. York that the Corps’ 404(b) (1) analysis
should include consideration of project purpose and practicable
alternatives from the applicant’s perspective. That guidance
was not intended to allow the applicant to control those two or
any E er aspect of the 404(b) (1) Guidelines review, nor to
require the Corps to accept or use the applicant’s preferred
definition of project purpose or to adopt without question the
applicant’s conclusion regarding the availability of practicable
alternatives. One must remember that the Guidelines’
“practicability” provision (40 CFR 230.10(a) uses the expression
“ basic purpose”. Although the Corps may try to iiew a project’s
basic purpose from the applicant’s perspective, that cannot
change the Guidelines’ mandate to use every project’s basic
purpose for the Guidelines’ practicability review. The
Guidelines’ concept of “basic purpose” was quoted at paragraph
5. above: e.g., “resturants do not neec1 to be in wetlands to
fulfill their basic purpose of feeding people.” The concept of
basic purpose is further discussed in paragraphs 19 through 21,
infra .
15. In addition, the LMVD transmittal letter of 11 March 1987
contains the following statement:
minimization of cost is a legitimate factor in
determining the applicant’s purpose and the purpose of the
project.”.
While the app’icant’s wish to minimize his costs is obviously a
factor which t iéCorp can consider, that factor alone must not
be allowed to control or unduly influence the Corps’ definition
of project purpose or “practicable alternative”, or any other
part of the 404 (b) (1) evaluation. The preamble to the
Guidelines states the following on this point:
The mere fact that an alternative may cost somewhat more
does not necessarily mean it is not practicable ...“ (45
Fed. Reg . at 85339, Dec. 24, 1980)
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This is an important point, because often wetland property may
be less expensive to a developer than comparably situated upland
property. The Guidelines obviously are not designed to
facilitate a shift of development activities from uplands to
;et1ands, so the fact that an applicant can sometimes reduce his
costs by developing wetland property is not a factor which can
be used to justify permit issuance under the Guidelines. On the
other hand, the 404(b) (1) Guidelines do address the factor of
cost to an applicant in the concept of the “practicability of
alternatives, defined at 40 CFR 230.10(a) (2). As the
Guidelines’ preamble states on this point, “If an alleged
alternative is unreasonably expensive to the applicant, the
alternative is not “practicable”.” (45 Fed. Reg. at page 85343,
Dec 24, 1980)
16. The 404(b) (1) Guidelines define the concept of practicable
alternative as follows:
An alternative is practicable if it is available
consideration cost, existing technology, and
logistics in light of overall project purposes .
If it is otherwise a practicable alternative, an
area not presently owned by the applicant which
could reasonably be obtained, utilized, expanded
or managed in order to fulfill the basic purpose
of the proposed activity may be considered.
(40 CFR 230.10(a) (2); emphasis added)
This provision indicates that a site not presently owned by the
applicant but which could be obtained, utilized, etc., to
fulfill the basic purpose of the proposed activity qualifies as
a practicable alternative. Consequently, the definition of
“basic purpose” and “overall project purposes” is central to
proper interpretation and implementation of the Guidelines’
“practicable alternative” test. Moreover, part of the
“practicable alternative” test of 40 CFR 230.10(a) is the “water
dependency” provision, quoted in paragrap 4, supra , which also
is based upon the concept of a project’s “basic purpose. That
is, the water dependency test states that a practicable
alternative is presumed to exist for any proposed activity which
does not have to be sited within or require access or proximity
to water to fUlfill its basic purpose (thus a 404 permit could
not be issued unlesa the presumption is rebutted). (40 CFR
230.10 (a) (3))
17. Acceptance of the applicant’s proposal to build a
fully—integrated, contig,ious, waterfront recreational resort
complex led NOD to conclude that:
the Corps considers the project to be water
dependent in light of the applicant’s purpose
(SOF, page 7)
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This determination had the effect of finding that 339
condominium dwellings, 398 townhouse units, a motel, a
restaurant, a cafe, a bar, a diving and fishing shop, and a
convenience store, were all “water dependent,” merely because
they were said to be “integrated” with and “contiguous” to
marina facilities. This approach is unacceptable, and contrary
to Corps policy since 1976. If the approach used by NOD in the
instant case were to gain general acceptance, then proponents of
virtually any and all forms of development in wetlands could
declare their proposals “water dependent” by proposing to
“integrate” them with and to build them “contiguous” to a
marina, or simply by adding the expression “waterfront” as a
prefix to words such as “home”, “motel”, “restaurant”, “bar”,
etc. The approach used by NOD in the instant case would render
completely meaningless the water dependency provision of the
Guidelines.
18. NOD’s basis for declaring all aspects of the Plantation
Landing Resort proposal to be water dependent was the following:
Individually most components comprising the
proposed recreational complex are not dependent
upon water to function. However, waterfront
availability of proposed facilities is demanded by
the public as clearly demonstrated by the success
of similar waterfront facilities in adjoinin gulf
coastal states. Also local demand for waterfront
housing is evident by the proposed expansion of
Pirates Cove on Grand Isle and the presently
ongoing installation of Point Fourchon at
Fourchon. (EA at page 85)
One of the primary reasons why regulation of the filling of
wetlands is an important Corps environmental mission is
precisely because a strong economic incentive (i.e., “demand”)
exists to fill in many coastal wetlands for housing
developments, condominium resorts, restaurants, etc. The fact
that “demand” exists for w tèrfront development, and even the,.
fact that “demand” exists for the filling in of wetlands for
waterfront development. is irrelevant to the question of
whether any proposed development in a special aquaticsite is
water dependent’ under the 404(b) (1) Guidelines. Waterfront
development can take place without the filling in of special
aquatic sites
19. Significantly, in 1976 the HQUSACE dealt with essentially
the same issues presented in the instant case (i.e., the
meaning of “basic purpose” and “water dependency” and the
nature of the practicable alternatives review) in the context
of a permit case similar to the proposed Plantation Landing
Resort case. That 1976 case involved the application of the
Celtona Corporation to fill coastal wetlands at Marco Island,
Florida, for what at that time was also proposed to be a fully
integrated, contiguous, waterfront recreational resort and
‘I
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housing complex. Although the wording of both the Corps
regulations and the 4C4 (b) (1) Guidelines have changed in
certain technical respects since 1976, the essential mandate of
both remains unchanged. Consequently, the following language
quoted from the Chief of Engineers’ 1976 decision document for
the Marco Island case provides the essential guidance for
analyz rig the instant case. The Corps will apply the following
to the “practicable alternatives” test of the Guidelines:
The benefits of the proposed alteration must
outweigh the damage to the wetlands resource, and
the proposed alteration must be necessary to
realize those benefits. In determining whether a
particular alteration is necessary, our
regulations require that we primarily consider
whether the proposed activity is dependent upon
the wetland resources and whether feasible
alternative sites are available. ... I recognize
that these ... applications involve part of an
overall, master planned development, and that it
has been suggested that the location of this
particular housing development with its related
facilities is dependent on being located in this
particular wetlands resource in order to complete
the overall planned development. Such, however,
is not the intended interpretation of this
wetlands policy as the Corps perceives it. The
intent, instead, was to protect valuable wetland
resources from unnecessary dredging and filling
operations to fulfill a purpose such as housing,
which generally is not dependent on being located
in the wetlands resources to fulUll its basic
purpose and for which, in most cases, other
alternative sites exist to fulfill that purpose.
The basic purpose of this development is
housing, and housing, in order to fulfill its
basic purpose, generally does not have to be
located in a water resource. Some have suggested
that recreational housing requires such a
location. But while a derived benefit of
“recreational” housing may be the Opportunity to
recreate in or near the water resource, the basic
purpose of it still remains the same: to provide
shelter. ( Report on Application for Department of
the Army Permits to Dredge and Fill at Marco
Island, C o11ier County, Florida , 6th md., 15
April 1976, pages 91—92)
20. It follows that the “basic purpose” of each component
element of the proposed Plantation Landing Resort must be
analyzed in terms of its actual, non-water-dependent function.
11
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The basic purpose of the condominium housing is housing (i.e.,
shelter); the basic purpose of the restaurant is to feed people;
etc. The Corps will not conclude that housing, restaurants,
cafes, bars, retail facilities, or convenience stores are water
dependent: they are essentially non-water-dependent activities.
Moreover, they do not gain the status of water-dependent
activities merely because the applicant proposes to “integrate”
them with a marina, or proposes to build them on a piece of land
contiguous to a marina, or proposes that any of these non-water-
dependent facilities should be “waterfront” or built on
waterfront land. The concepts of “integration”, “contiguity”,
and “waterfront” must not be used to defeat the purpose of the
“water dependency” and “practicable alternatives” provisions of
the Guidelines, nor to preclude the existence of practicable
alternatives.
21. In light of the foregoing guidance, your re—evaluation of
the proposed Plantation Landing Resort (and comparable future
proposals) should proceed as follows. First, determine whether
each component part of the project is water dependent or not in
light of that component’s basic purpose. For example, the
proposed marina is water dependent, but the proposed housing
units, motel, restaurant, etc., are not. Second, for component
parts of the project which are not water dependent, a
presumption arises that an alternative, upland site is
available. The applicant may be able to rebut that presumption
with clear and convincing evidence. Closely related to this
inquiry is the question whether the non-water-dependent
components of the project actually must be integrated with or
contiguous to the water dependent part(s) in such a manner as
to necessitate their location in a special aquatic site. Once
again, a presumption exists that the non-water-dependent
components of the project do not have to be contiguous to or
integrated with water-dependent parts (e.g., the marina) to be
practicable (e.g., economically viable). As stated before, the
applicant may be able to rebut the presumption with clear and
convincing evidence. Only if the applicant rebuts these
presumptions can the Corps conclude that some (or all) of the
non-water-denendent components of the overall project pass the
tests of 40 t. R 230.10(a) (3).
22. Another problem in NOD’s approach to the plantation landing
case is the District’s assertion that the loss of wetlands which
the project would cause is inconsequential, because “... project
alterations o* w tands represents a very small portion of
similar habitat within the project vicinity and coastal
Louisiana... only 2.39% of the saline marsh on Grand Isle and
only 0.005% of the saline marsh in coastal Louisiana...” (SOP at
page 7). While this consideration may have some relevance to
the decision of this case, it ignores the fact that the
cumulative effects of many projects such as Plantation Landing
can add up to very significant wetlands loss. The 404(b) (1)
Guidelines and the Corps wetlands policy at 33 CFR 320.4(b) both
/3
12
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deal with curulat!ve losses of special aqautic sites as a
igni iCarit concern. For example, the Guidelines define
cur .ative ii’ pacts at 4 C P. 230.11(g) (1) as follows:
eterr ination of c r i1atiie effects on the tatic
ecosystem . Cumulati;e i pacts re the cIarj s ir. an a.uatic
ecosystem that are attributable to the collectie effect of
a nurber of indjviual dischar-:es of dredced or fill
aterial. tlthcugh. the intact of a particular discharge r av
constitute a mir.or change in itself, the C u.ati;e effect
of nu erous such piece eal changes can result in a najor
impairment of the water resources and interfere with. the
productivity and water quality of existing aquatic
ecosyste is.
Az-on.g the mandatory provisions of the Guidelines which deal with
cu ulattve effects is 40 CFR 230.10(c), which prohibits
discharges “which will cause or contribute to significant
de radation of the waters of the (Jnited States.” It follows
that the proposed destruction of 22 acres of special aquatic
sites by the subject proposed c1eve1opr ent cannot be dismissed as
uni pOrtant.
23. An additional rationale gi ven by NOD in this case to
justify issuance of the permit with minimal required
compensatory mitigation is the assertion that ‘ t the project site
is eroding at a rapid rate and will be lost r gardless of
project implementation...” (SOF at page 7). To the extent that
erosion rates can be reliably and accurately determined, the
ongoing and predicted erosion of a wetland may be a legitimate
consideration under the Corps public interest review. Nowever,
10D’s reliance on predicted erosion rates in the instant case is
problematical, for at Least t .o reasons. First, substantial
doubt and disagreement apparently exist regarding how rapidly
the marshland at issue here is likely to erode. Second, even if
the -nore rapid projected rate of erosion is accepted as valid,
that fact cannot negate the ecological value of the special
aquatic site over time. That is, even if the marsh were to
erode at the projected rate of the Environrnental Assessment, it
would still rovide valuable detritus and fish and wildli. e
habitat for more than fifty years into the future, and would be
replaced by ecologically .valuable shallow ater habitat even
after erosiofl. Consequently, the rrarsh’s status as a special
aquatic site under the 404(b) (1) Guidelines remains, regardless
of the erQ$ n factor.
24. Of course, notwithstanding all of the above, in a
particular, given case (which might or might not be the
?lantation Landing Resort application) the Corps public interest
review and the 404(b) (1) Guidelines may allow the District
Enaineer to grant a perr it for the filling of wetlands, even for
a non-water-dependent activity. This would occur only if the
applicant has clearly rebutted the presumptions against filL .ng
13
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wetlands found at 40 Cr?. 230.10, and has clearly rebutted t -e
presumptiOns of 230.10(a) aith convincing evidence that no
practicable alternative exists which would preclude his proDosed
fill. In such a circu stance the ritigaticn requirements of 4
CFR 230.10(b), (C), and Cd) come into play. For some tine the
Corps has been working with the EPA to negotiate a mutually
agreeable mitigation policy under the 404(b) (1) Guidelines.
while no such cozr non policy has yet been pro u1gated, the
circumstances of the instant case demonstrate that some sort of
interir guidance on mitigation is important.
25. In the Plantation Landing Resort case the OD proposed to
issue Corps per ’its authorizing the filling of 22 acres of tidal
marsh and 37 acres of sha1lo bay bottorr, according to !JOD’s
Public Notice of 7 Dec 1987 (page 1). The EPA and N 1FS contend
that the proposed project would adversely impact a total of
aç roximately 102 acres of wetlands and shallow open water bay
L,c.ttom, considering BOth d .rect and indirect project impacts.
Regardless of which figure for project impacts is more relevant,
the fact remains that the total mitigation requirement which NOD
proposed to satisfy 40 CP’R 230.10 was to dispose of dredged
material from the project’s channel dredging operations in a
manner which would create five acres of marsh, and to add
thereto with subsequent dredged material from future maintenan
dredging operations for the resort’s channel. For impacts on
wetlands and productive shallow bay bottom areas of a project
such as the instant case presents, NOD’S pro osed mitigation
requirement appears inadequate.
26. Pending the promulgation of further guidance on mitigation,
OD should require mitigation measures which will provide
compensatory mitigation, to the maximum extent practicable, for
those values and funct cns of the special aquatic site directly
or indirectly adversely impacted by the proposed development
activity. Of course, such mitigation measures should be
developed after appropriate consultation with Federal and state
natural resource agencies, but the decision regarding how much
mitigation to require and regarding the form and nature of the
mitigatiorv will be m ae by the District Engineer.
2 . The general conclusion to be drawn from the guidance given
above is. that the Corps should interpret, and iinp ernent the
404(b)(1 4 ’ Guidelines, and for that matter the Corps public
in a manner which recognizes that most special
aquatic ‘attés serve valuable ecological functions, as specified
at 33 CFR 320.4(b). Such valuable special aquatic sites should
be protected from unnecessary destruction. consequently, the
Corps regulatory program should give potential developers of
special aquatic sites the proper guidance to the effect that
special aquatic sites generally are not preferred sites for
development activities. Moreover, for ecologically valuable
wetlands, such as those at stake in the instant case, developers
should understand that oroposed non-water-dependent development
activities will generally be discouraged.
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DEPARTMENT OF THE ARMY
/ T;- , \\ U S Army Corps of Engineers
‘. WASHINGTON,OC. 20314-1000
RE V TO
ATTENTION OF
CECW-OR i7Au619e
MEMORANDUM THRU COMMANDER, NORTH ATL NTIC DIVISION
FOR COMMANDER, NEW YORK DISTRICT
SUBJECT: Permit Elevation, Hartz Mountain Development Corporation
1. By memorandum dated 26 Nay 1989, the Assistant Secretary of
the Army (Civil Works) advised me that he had granted the request
of the Environmental Protection Agency (EPA) and the Department of
Interior (DOl) to elevate the permit case for Hartz Mountain
Development Corporation. In this regard, the case was elevated to
HQUSACE for national policy level review of issues concerning the
mitigation and practicable alternatives provisions of the
404(b)(l) Guidelines.
2. Based on our review of the administrative record and meetings
with your staff, the applicant, EPA and DCI, we have determined
certain aspects of interpreting and implementing the guidelines
should be clarified. Our conclusions are stated in the enclosed
report titled Hartz Mountain 404(q) Elevation, HQUSACE Findings.
3. Please re-evaluate the subject permit in light of the guidance
provided in our findings and take action accordingly. In order
for us to comply with paragraph 8 of the Department of the
Army/EPA Memorandum of Agreement, please notify HQUSACE Regulatory
Branch as soonas you reach a permit decision. Questions or
comments concerning this elevated case may be directed to
Mr. Michael Davis of my regulatory staff at (202) 272-0201.
FOR THE COMMANDER:
Enclosure ‘K
Brigadi ç enex fIflP), USA
Director ‘ Ci1Pi J Works
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WASHtNGION, L) .. VaIvv’
M,4.
f6 4/ 7
7 AUG 89
CR NDU?4 FOR TPIZ DIRECTOR OF CIVIL WORKS
SUB3ECT: I artz Mountain ?er nit Elevation Case
This is in reply to your memoranduj i of 7uly 26,
1989, cor cerning the subject elevated perniit case.
We have reviewed your draft findIngs and concur with
your conclusions. You should notify the New York
istrict to proceed in light of the guidanc. provided
in your £ü dings.
The findings provide an excellent analysis of the
issues in a con pl.x case. We particularly like the
format used to present your analysi, and recommend it
be used as a model in the future. Mr Michael Davis,
the case action officer, is to be co unended for his
efforts.
Since much of the guidance and information
contained in the finding. i. applicable to all
Section 404 p.rmit applications, p3..aa. distribute to
Corps FOAS.
Robert W. Pags
Assistant Secretary of the Army
(Civil Works)
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DEPARTMENT OF THE ARMY
U S Arm.v Corps t Eng lneQrs
WASHINGTON. DC 20314-1000
R PLV ‘TO
ATTENTION OF
CECW-OR 17 AU6 1 9
Ms. Rebecca Haniner
Acting Assistant Administrator
for Water
Environmental Protection Agency
Washington, DC 20460
Dear Ms. Haruner:
Pursuant to the Section 404(q) Memorandum of Agreement (MOA)
between the Department of the Army and the Environmental
Protection Agency, we are enclosing a copy of our “Findings” which
addresses the policy issues you raised in reference to the Hartz
Mountain permit case.
We have directed the Army Corps of Engineers, New York
District to undertake additional review of the Hartz Mountain
permit application in light of the conclusions presented in our
findings. Specifically, additional information on practicable
alternatives and the baseline values of the existing wetland and
proposed wetland enhancement is required before a permit decision
can be made. In accordance with paragraph 8 of the MOA we will
notify you of the District’s decision.
Your interest in this matter and the cooperation of your
staff is appreciated. Questions or coimnents concerning this
elevated case may be directed to Mr. Michael Davis of my
regulatory staff at (202) 272-0201.
Sincerely,
Brigadie ner (P), U. S. Army
Director of Civil\Works
Enclosure
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HARTZ MOUNTAIN 4 04(q) ELEVATiON
HQUSACE FINDINGS
PRE RED BY CECW-OR
25 JULY 1989
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i— - i 1AI F I rin i rs
I— F Z r-kLz.1r I f’ .l , —i I-a’1 i -r I tT1
The purpose of this document is to present the findings of
the Headquarters Corps of Engineers (HOUSACE) review of policy
issues associated with a permit application before the Ne York
District (District). This review was undertaken in accordance with
the 1985 Memoranda of Agreement (MOAs) between the Department of
the Army and the Environmental Protection Agency (EPA) and the
Department of Interior (DOl).
1. BACKGROUND
On 4 August 1986 the Hartz Mountain Development Corporation
requested Department of the Army authorization to discharge fill
material into 97.41 acres of tidal wetlands within the New Jersey
Hackensack Meadowlands District for the purpose of constructing a
3,301 unit residential housing development. Specifically, the
project involves the discharge of approximately 950,000 cubic yards
of fill material into wetlands dominated by common reed (Pb.ra jtes
co unLs). A public notice describing the proposal was issued on
22 May 1987, and a public hearing was conducted in June of 1987.
A number of comments both for and against the project were received
in response to the public notice and hearing. Three Federal
agencies. EPA, Fish and Wildlife Service (FWS) and the National
Marine Fisheries Service (NMFS) all objected to the issuance of a
permit for the proposed project.
Interagency coordination on the permit application proceeded
for approximately 18 months during which time additional
information was submitted by Hartz Mountain and their consultants.
In July 1988 the District completed the preliminary permit decision
process and determined that the project was not contrary to the
public interest provided that Hartz Mountain comply with certain
restrictions and conditions aimed at minimizing the environmental
impacts of the project. Since the Federal resource agencies
continued to object to permit issuance, a meeting was held with
each agency in accordance with the procedures of the MOAs. As a
result of these meetings, each agency provided detailed written
comments on their specific concerns. In general each agency’s
concerns centered on the application of the 404(b)(1) Guidelines
practicable alternative requirements, the Districts contention
that the wetland was of very low value, and the adequacy of the
mitigation plan to offset environmental impacts. The District
‘forwarded these comments to Hartz Mountain for response and/or
rebuttal. After considering the information contained within the
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administrative record, the District completed decision—making in
January 1989. Again, the District determined that the permit
should be issued. In response to the Districts decision, EPA, FWS
and NMFS requested meetings with the North Atlantic Division
Engineer (NAD) to discuss the permit decision in accordance with
Paragraph 6 of the MOAs. As a result of these meetings, NAD
forwarded comments and suggestions to the District on B March 1989.
The comments and suggestions concerned the language of ‘four special
conditions which NAD recommended be reworded to increase the
viability of the mitigation requirements. The District
incorporated these recommendations into the permit conditions and
a decision to issue the permit was made on 28 March 1989. On 28
March 1989, EPA, FWS and NMFS were given written notice of the
District’s “Intent to Issue” the permit.
In accordance with the MOAs, in letters of April 24 and 25,
the DOI and EPA, respectively, -requested that the Assistant
Secretary of the Army (Civil Works) (ASA(CW)) elevate the Hartz
Mountain permit decision for higher level review. NMFS, while
continuing to object to the project, did not request elevation.
On 26 May 1989, ASA(CW), based on recommendations from HOUSACE,
granted the DOl and EPA elevation request. ASA(CW) granted the
request and forwarded the action to HOUSACE far national policy
level review of 404(b)(1) Guidelines issues concerning mitigation
and the analysis of practicable alternatives. The elevation
request was not based on insufficient interagency coordination.
The information in the following sections presents the results
of the HOUSACE review of the complete administrative record of the
Hartz Mountain permit application. Clarification of information
contained in the record was obtained through meetings with the
applicant and associated consultants, the District and NAD staff,
the FWS and EPA.
In terms of environmental protection, the 404(b)(1) Guidelines
(Guidelines) form an essential component of the Corps’ 404
regulatory program. The Guidelines (40 CFR 230) are the
substantive environmental criteria to be used in evaluating the
impacts of discharges of dredged or fill material. In accordance
with the Corps regulations (33 CFR 320 — 330), a 404 permit cannot
be issued unless it complies with the Guidelines. HOUSACE’s review
of this case focused on the policy issues concerning compliance
with the Guidelines.
II. PRACTICABLE 4LTERNATIVES
A key provision of the Guidelines is the practicable
alternative test which provides that “no discharge of dredged or
fill material shall be permitted if there is a practicable
alternative to the proposed discharge which would have less adverse
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impact on the aquatic ecosystem [ 40 CFR 230.10(a)]. In this
respect, if a 404 discharge may reasonably be avoided, it should
be avoided.”
In addition to the basic alternatives test, 230.10(a)(3)
establishes a rebuttable presumption against discharges into
‘special aquatic sites’ for non—water dependent activities. A non—
water dependent activity does not require access or proximity to
or siting within a special aquatic site to fulfill its “basic
purpose.’ Practicable alternatives to non—water dependent
activities are presumed to be available and to result in less
environmental loss unless clearly demonstrated otherwise by the
applicant . The Hartz Mountain project (housing) is clearly a non—
water dependent activity. This fact is well documented in the
District s decision documents and has not been contested by the
applicant. Therefore, the burden of proving that no practicable
alternative exists is the sole responsibility of Hartz Mountain,
not the District or resource agencies.
A prerequisite to evaluating practicable alternatives is the
establishment of the “basic purpose” of the proposed activity. It
is the responsibility of the Corps districts to control this, as
well as all other aspects of the Guidelines analysis. While the
Corps should consider the applicant’s views and information
regarding the project purpose and existence of practicable
alternatives, this must be undertaken without undue deference to
the applicant’s wishes. These general issues were discussed and
guidance provided in the HQUSACE findings for the “Permit
Elevation, Plantation Landing Resort, Inc.” dated 21 April 1989,
a copy of which has been provided to all Corps divisions and
districts. Much of the legal and policy guidance in that document
is generally applicable to this case, and need not be repeated
herein.
In this case, Hartz has clearly stated that their project
purpose was to construct 3,301 units of residential housing in the
IR-2 area. In fact, a July Sb “planners report” submitted with the
permit application stated that “a site geographically located
outside the Meadowlands District would not fulfill the ‘basic
project purpose’ of 40i.(b)(1) [ sic] of the Permit program.” The
IR-2 site is an area designated by the Hackensack Meadowlands
Development Commission’s (HMDC) master plan as “Island Residential”
housing. Hartz acquired ownership to 194 acres of the 238 acre
site in 1979. Based on concerns of the District, Hartz ultimately
modified the project purpose to expand the potential project area
to New Jersey Housing Region 1 (Hudson, Passaic and Bergen
Counties). However. Hartz asserts that its purpose remains the
construction of a larQe scale (3.301 units) housing development .
While it appears that the District made a conscious effort to view
the project from a more basic purpose perspective, this was not the
approach talen by Hartz in evaluating potential alternative sites
[ 404(b)(1) evaluation page 5]. This was verified by Dr. Harvey
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Moskowitz, Community Planner and consultant for the applicant, who
conducted the analysis of alternative sites. This approach
seriously flaws the validity of the alternatives analysis and is
inconsistent with the Guidelines. Limiting project sites to those
that can facilitate a 3,301 unit development may preclude the
evaluation of otherwise practicable alternatives. Acceptance of
this very restrictive alternatives analysis negates all attempts
to otherwise more generically define basic project purpose. In
this case, in the ‘Summary Discussion of the Availability of
Practicab:Ie Alternatives” [ 404(b)(1) evaluation page 13) the
District states that “There are no practicable alternative sites
that are reasonably available to the applicant for the proposed
construction activities within the Northeastern New Jersey Region
which would meet the applicant’s project purpose and the stated
need for- the project” (emphasis added).
The Guidelines alternatives analysis must use the “basic
project purpose”, which cannot be defined narrowly by the applicant
to preclude the existence ol practicable alternatives. On the
other hand, the Corps has some discretion in defining the “basic
project purpose” for each Section 404 permit application in a
manner which seems reasonable and equitable for that particular
case. It is recognized that this particular case may be unusual,
because it involves unique issues of zoning and land use planning
by the HMDC and the apparent scarcity of undeveloped land in the
Region 1 area. However, federal concerns over the environment,
health and/or safety will often result in decisions that are
inconsistent with local land use approvals. In this respect, the
Corps should not give undue deference to HMDC or any other zoning
body.
At the request of the District, Hartz conducted a search for
potential alternative sites in Region 1. Ultimately, 43 sites were
identified and evaluated by Hartz’s consultant, Dr. Moskowitz.
Each site was evaluated based on a set of criteria developed by
Hartz. The District reviewed the criteria and concluded that they
were “appropriate for reviewing sites for practicability with
regard to the Section 404(b)(1) Guidelines.” While this approach
may be an acceptable method for evaluating alternative sites, we
are concerned that some of the criteria were biased to the extent
that only sites that meet the applicant’s purpose were considered.
For example, alternative sites less than 50 acres were not
considered practicable because they i ’ ould not facilitate a 3,301
unit development and therefore “achieve the applicant’s stated
project goals” [ 404(b)(1) evaluation page 8). On this subject the
District states:
“Based on the applicants goal’s for a profit, it must be
presumed that the size of a potential alternative site
is of primary importance. A smaller parcel of land could
be considered a practicable alternative for a residential
housing project although it could not accommodate a
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project nearly the size that is the subject of the
present permit application.” [ 404(b)(1) evaluation
page 7]
In this case the District’s administrative record gives the
appearance of having given too much deference to the applicant’s
narrowly defined project purpose. This may have very well resulted
in the exclusion of otherwise practicable alternatives.
The District goes to great length to explain the criteria
utilized by the applicant and the justification for each [ 404(b)(1)
evaluation page 8]. However, no information is provided in the
decision documents on the specific sites, the ratings they
received, or why they failed as practicable alternatives. At a
minimum, a table of the sites listing this information should have
been included in the 404(b)(1) evaluation. In regard to the actual
evaluation of the 43 potential sites, we observed at least a few
discrepancies in the data submitted by the applicant. For example,
two adjacent sites (4 and 5) were given different ratings on
accessibility to public transportation. Of more significanceis
the fact that the IR—2 site was not evaluated against the criteria
used for the other sites. Our estimates indicate that the site may
in fact not pass as a practicable alternative based on the
applicant’s own system for analyzing alternatives. Failing to
evaluate the project site when using this type of evaluation system
is inappropriate and indicates that the applicant has not rebutted
the presumption against the discharge of fill material into special
aquatic sites.
Throughout the decision documents the District mentions the
need for housing in the Region and references New Jersey Council
on ffordable Housing (COAH) information [ Statement of Findings
(SOF) page 14, 404(b)(1) evaluation page 11, Environmental
Assessment (EA) page 2]. While the need for all types of housing
in the Region may be very real, we are concerned that the
administrative record does not clearly demonstrate the existence
of such a need. The COAH information focuses on the need for low
to moderate income housing and this portion of the housing need is
not questioned. However, it appears that the District relied on
the COAH data to substantiate the need for housing above the
moderate income level. Admittedly the COAH information translates
an actual need of 42,534 low/moderate units to an overall figure
of 213,000 housing units. This is based on the number of market
rate units that may be required to support the actual low/moderate
housing needs. Use of this information to justify an overall
housing need may not be appropriate. Further, reference to a COAH
letter on page 11 of the 404(b)(1) evaluation is misleading if not
inaccurate. The District states:
“The 27 September 1988 correspondence from the State of New
Jersey’s Council on Affordable Housing (COAH) substantiates
the applicant’s showing that no reasonably available
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practicable alternative sites to the proposed development
exist by focusing on the ‘compelling need’ ‘for locating the
housing in Secaucus at the Mill Creek site, at the densities
mandated by the Hackensack Meadowlands Development Commission
zoning regulations.
What the referenced COAH letter really states is that there is a
need for 42,534 low to moderate income units and that it may take
four market units per low/moderate unit to support such housing.
In regard to the “compelling need” at the Mill Creek site (IR—2),
the CO H letter states:
“The CO H supports the development of affordable housing units
at the Mill Creek site as a meaningful step toward addressing
the compelling need for such housing in Secaucus and Region
1.” (emphasis added) -
The proposed project will provide a maximum of 330 (1OY. of total)
low to moderate income units at the IR-2 site. The administrative
record and discussions with the applicant indicate that it ‘is
likely that only one half of the 330 units will actually be built
at the IR-2 site. The decision documents consistently state that
107. to 20% of the project will be dedicated to low to moderate
housing. This is clearly not the case and the record should
reflect such. Further 1 the need for housing of any type and the
zoning requirements o’f HMDC cannot override the Guideline’s
requirement to select the least damaging practicable alternative .
CONCLUSIONS:
1. For purposes of this case only, the basic project purpose
should be defined as “construction of a large scale, high density
housing project in the Region 1 area.” That does not necessarily
mean a project of 3,301 units in one contiguous location as
proposed by Hartz. The District should determine the minimum
‘ feasible size 1 circumstances 1 etc., which characterize a viable
large scale, high density housing project . The District may
require the applicant to provide information that facilitates
completion of this determination. Clearly Hartz has previously
determined that a development of 2,748 units would be feasible.
It may very well be that a smaller development (i.e., < 2,748
units) would also be viable. The permit decision documents should
be corrected to reflect the project purpose noted above (i.e.,
references to satisfying the applicant’s project purpose should be
deleted).
2. Once the minimum feasible size, etc. has been determined
in accordance with (1.) above, a revised alternative analysis
should be completed by Hartz. The District must carefully evaluate
the criteria used to compare alternative sites. The alternatives
analysis must be objective and balanced, and not be used to provide
a rationalization for the applicant’s preferred result (i.e., that
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no practicable alternative exists). The IR—2 site must be included
in the alternatives evaluation and added to the administrative
record.
3. The alternative site data should be made part of the
decision documents. This should include a listing of all sites,
their evaluation scores and a summary of the final determination
of practicability.
4. Information on the need for housing must be accurately
cited in the decision documents and additional information on the
overall housing need (i.e., above moderate level) should be
provided.
III. MITIGATION 1
As previously discussed, the Guidelines establish the
substantive environmental criteria to be applied in the evaluat.ion
of potential impacts associated with discharges of dredged or fill
material into waters of the United States. In addition to the
“practicable alternative” test in 230.10(a), the Guidelines state
that a discharge cannot be approved, except as provided under
404(b)(2), if it results in significant degradation of waters of
the United States and, unless all appropriate and practicable steps
have been taken to minimize potential adverse impacts on the
aquatic ecosystem [ 230.10 (c) and (d)3. These form an important
part of the current approach of requiring mitigation in the 404
regulatory program. Mitigation is also a required consideration
under the Corps’ Public Interest Review [ 33 CFR 320.4(r)).
As a general rule, once the least damaging practicable
alternative has been selected, appropriate and practicable steps
must be taken to mitigate the project impacts. Determining the
amount and type of mitigation is often difficult at best. In
particular, compensatory mitigation for wetlands loss engenders a
considerable amount of controversy and discussion among regulatory
and resource agencies and the development community. In order to
improve consistency, Army and EPA are currently working on a 404
mitigation policy.
Pending the promulgation of the joint mitigation policy, the
Corps should require mitigation measures which will provide
compensation, to the maximum extent practicable, for all values
and functions that are lost or adversely impacted as a result of
‘The discussion of mitigation that follows, and any subsequent
requirements, have no bearing on the previous discussion and
requirements concerning the availability of practicable
al ternatives.
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a proposed development in waters of the United States. As with
other permit specific Guidelines and public interest decisions, a
determination of mitigation requirements will be made by the Corps.
Such decisions should be made after appropriate consultation with
Federal and state resource agencies. The Corps decision must be
made in a manner that recognizes the ecological functions of
special aquatic sites, in this case wetlands.
4 prerequisite to developing a wetlands compensatory
mitigation plan is the establishment of values and functions of
the e iisting wetland system. Without the benefit of baseline
information, the permit decision—maker cannot determine an
appropriate mitigation level to find compliance with the
Guidelines. As a matter of policy , the Corps should not make
permit decisions before obtaining the necessary and appropriate
information on the value of the specific resource that would be
lost to a proposed discharge of dredoed or fill material if the
permit is granted . This information may be obtained from the
applicant, in—house studies, technical assistance from experts at
the Corps Waterways Experiment Station (WEB) or universities and
previously published reports to mention only a few sources. It is
incumbent upon the Corps to review the data carefully to ensure
that the information is scientifically sound and can be supported
if challenged.
In the Hartz Mountain case an extensive mitigation “concept”
was proposed by the applicant. The District relied heavily on the
potential success of this concept in reaching a decision to issue
the permit. The basic premise of the Hartz mitigation concept was
that the e’cisting wetland system was highly degraded and of very
low value. In this regard, Hartz maintained that they could
enhance low value wetlands both on—site and at two oft—site
locations) to a point where they could compensate for the direct
loss of 97.41 acres. This assumption is based on a presumed
‘successful” mitigation project currently under way by Hartz on
another part of the IR—2 site. This 63 acre mitigation project was
required as part of a 1983 Department of the Army Permit to fill
127 acres of wetlands for commercial and industrial development.
To date, no comprehensive evaluations have been completed to
substantiate the claims of success on this mitigation project in
terms of overall wetland values. For the current project, Hartz
determined, using the FWS Habitat Evaluation Procedure (HEP), that
they would have to enhance 93.74 acres of wetland and create 22.12
acres of open water canals to compensate for the loss of 97.41
acres. In addition, Hartz proposed 8.94 acres of “raised islands”
for upland habitat and 9.40 acres of wetlands preservation.
Throughout the District s review of this case there as been
significant disagreement between Hartz and the resource agencies
on the actual value of the phz., jteg dominated wetlands within the
project area. The applicants HEP, which was modified several
times, concluded that the area has “ relatively low existing fish
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and wildlife and ecological value ” (emphasis added) (EA page 6).
An Advanced Identification field team from the District, EPA, FWS,
NMFS, New Jersey Department of Environmental Protection and HMDC
conducted a analysis of the Hackensack area using the Corps Wetland
Evaluation Technique (WET). According to the District, the “draft
WET documents have shown that the general regions encompassing the
proposed development site and mitigation areas have high value
potential for fish and wildlife 1 as well as the potential for
having moderate to high general ecological value ...“ (emphasis
added) (EA page 6). The District has indicated that the WET
analysis was not specific to the project area and was more of a
‘windshield” survey. EPA and FWS requests for permit elevation
were based, in part, on the lack of definitive data on the values
of the project and mitigation sites. FWS continues to question the
validity of the applicant’s application of the HEP (a FWS
methodology) process.
Based on the decision documents for this application, it
appears that the District generally concurred with Hartz on the
low wetland value of the project area. Their position was ba’ed
on the HEP evaluation and other environmental data collected by
the applicant. However, the addition of Special Conditions (A.)
and (D.) seem to indicate that their support was somewhat tacit
and that questions on the wetland values remained. Condition (A.)
requires Hartz to perform a site specific WET using environmental
data from other agencies and the HEP generated information. This
information is to be used to “confirm that the proposed wetland
mitigation values compensate for the aggregate value of the wetland
functions lost to the filling activities...” Special Condition
(D.) requires Hartz to undertake a comprehensive sampling and data
collection program which includes the establishment of baseline
information for the project area. While Hartz has provided
biological, chemical and physical data in the form of various
surveys and studies conducted over the years, an updated
comprehensive scientific report on the existing conditions does not
exist in the administrative record. From a policy perspective 1 we
believe that a valid Guidelines determination cannot be made
without the benefit of an appropriate assessment of the pre—project
values of the impacted resource . This information is equally
important in making the Corps public interest determination.
Further 1 this assessment should be completed before a final permit
decision is reached . The level and sophistication of information
required will vary from application to application depending on the
size and nature of the project. It is recognized that in a small
number o’f cases (e.g., unauthorized fill), baseline information may
not be readily obtainable and best professional iudgement must
prevail. However, the piecemeal approach of assessing current
wetland values and the reliance on such information as an “April
1986 comprehensive, natural resources survey of the subject parcels
and the Hackensack River” are causes for concern.
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According to Hartz, completing the proposed mitigation would
result in a 20”/. net increase in overall estuarine value in the
project area. For purposes of the mitigation discussion the
project area is defined as the 231.51 acre universe of the IR—2
site and the two off—site mitigation areas. The existing estuarine
value of the project area was estimated at 38/. of its potential.
A 207. increase would result in a project area that functions at 467.
of its potential estuarine value. When the 97.41 acres of project
fill, 8.84 acres of “islands” and the 9.40 acres of preservation
are removed from the project area 2 , 115.86 acres remain for marsh
enhancement and open water. In order to obtain their estimated 207.
overall increase Hartz will have to enhance the 115.86 acres to 917.
of their potential estuarine value. In this respect, we are
concerned about Hartz’s, or anyones, ability to increase values to
such a level. If the open water is subtracted, the remaining 93.74
acres of wetland would have to be enhanced to 1137. of its potential
estuarine value. Clearly, this would not be possible. In either
case additional acreage may be required to achieve the 207. net
increase in values required.
Another issue that is of concern is the inclusion of “fringe”
wetlands and open water in the mitigation plan. Over 33 acres of
the mitigation credit consist of a series of canals and adjacent
narrow strips (fringe) of intertidal plantings among 3,301 housing
units. The overall wetland value of this part of the mitigation
should be documented. The HEP evaluation looked at this area as
one 33.85 acre tract and not as one that was dissected by a large
residential development. The applicant’s main purpose for this
part of the plan may very well be aesthetics.
An issue that w s initially discussed in the HQUSACE permit
elevation recommendations to ASA(CW), was the proposed issuance of
the Hart: permit prior to receipt of a detailed mitigation plan.
In this case, permit conditioning appears sufficient to ensure that
a detailed plan will be submitted for District approval prior to
the discharge of fill material. However, at a minimum, the permit
plans should have provided enough information to accurately reflect
the work proposed (e.g., typical cross sections, etc.).
CONCLUSIONS:
1. Hartz should be required to complete a comprehensive
baseline study of the IR-2 site, off—site mitigation areas, and the
previous 63 acre mitigation site before a final permit decision is
made. The District, in consultation with FWS, EPA and NMFS will
determine the scope of the study and the methods used. The ‘final
call on the study will be the District’s.
2 Correctly, these areas were not counted by the applicant or
th District in determining the amount of marsh enhancement
required.
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2. The District, not Hartz, should complete a site specific
WET evaluation before making a permit decision. We strongly
encourage the District to utilize experts from WES to undertake
this task. Funding for work of this nature has previously been
provided to WES by HOUSACE and initial discussions have confirmed
the availability of the appropriate WES staff.
3. The wetland replacement value of the fringe wetlands and
open water at the IR—2 site should be reevaluated. Documentation
of its value should be included in the record.
4. Once information is obtained from the studies noted in
paragraphs one through three above, a determination of the value
of the existing Fhr g jtes marsh and, as appropriate, the amount of
compensatory mitigation required to compensate for the lost
resource should be completed. Based on those determinations, a
final permit decision should be made.
5. After completion of the above, if a decision is made to
issue the permit, Hartz should be required to submit more detailed
permit plans. While we do not expect final drawings, basic
information such as access between islands at the IR—2 site and
typical pre and post project cross sections at all mitigation sites
should be included.
IV. GENERAL CONCLUSIONS
A review of the voluminous administrative record reveals the
extensive amount of effort on the part of the District to evaluate
this application. Severely understaffed and working in a difficult
geographic area, they should be commended for their overall
accomplishments in the regulatory program.
From the guidance presented in this document, the general
conclusion should be drawn that the Army Corps of Engineers is
serious about protecting waters-of the United States, including
wetlands, from unnecessary and avoidable loss. The Corps districts
should interpret and implement the Guidelines in a manner that
recognizes this. Further, the Corps should inform developers that
special aquatic sites are not preferred sites for development and
that non—water dependent activities will generally be discouraged
in accordance with the Guidelines. When unavoidable impacts do
occur, the Corps will ensure that all appropriate and practicable
action is required to mitigate such impacts. The mitigation must
be properly planned with stringent permit conditions to ensure that
it accomplishes stated objectives. Compliance monitoring by Corps
districts must be an integral part of this process.
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TABI
NON-REGULATORY WETLANDS ACTIVITIES
IINTRODUCT1ON
In 1985 Administrator Thomas initiated a Strategic Policy Initiative on Wetlands.
This fundamental review of EPA ’s wetlands program concluded that EPA should
expand its program beyond traditional Section 404 permit review and
enforcement to take advantage of other opportunities to protect wetlands. New
or expanded efforts were recommended:
• Influence federal agency policies and programs
• Develop State, Indian and local programs
• Public information and education
• International activities
• Integrate consideration of wetlands into EPA programs
• Wetlands Strategies - national directions
- ecosystem strategies
- wetlands planning
• Improve the scientific information base
The Office of Wetlands Protection was formed in 1986, and the Wetland
Strategies and State Programs Division was charged with carrying out the new
initiatives. One additional recommendation resulted from the Strategic Policy
Initiative - increase the use of Advance Identification in the Section 404
Program. This was integrated with EPA’s traditional Section 404 responsibilities
in the Regulatory Activities Division.
Office of Wetlands Protection March 23, i990
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FEDERAL AGENCY POLICIES AND PROGRAMS
Objective: To encourage and assist other federal agencies to manage programs to
avoid adverse impacts on wetlands and to take advantage of opportunities to
contribute in a positive way to the protection of wetlands
Priotr
• Floodplain Management-- In past years federal floodplain management
programs have emphasized approaches to reducing flood losses that have been
detrimental to sensitive natural resources located in the floodplain. The majority
of the Nation’s wetlands are located in floodp lains. Floodplain management
policies need to be amended to address flood loss reduction in a manner that
better protects the natural values of floodplains. Key activities:
- EPA, OWP, as a member of the Interagency Floodplain Management
Task Force, is participating in an intensive multi-year review of the federal
floodplain management program. The results are expected to establish
program directions for the next decade. OWP has been an increasingly -
active member of the task force, and other task force members (e.g. COE,
FEMA, SCS, TVA) are increasingly responsive to the need for responsibly
addressing ecological issues (specifically wetlands) in the program review.
EPA, OWP, at the Taskforce’s request, is leading a project to hold a
prototype workshop in Knoxville, Tennessee bringing various state and
federal agencies together to identify ways to protect natural values of the
floodplain while reducing flood losses. Region IV staff have indicated an
interest in participating in workshop planning and implementation.
- Working through the same Taskforce and with the National Park
Service, EPA is providing information and assistance for local river
corridor management approaches. We have sponsored three conferences
on river corridor management planning over the past two years:
Washington, DC; Colorado Springs, CC; and Knoxville, TN, and a fourth
is planned for April 25-28 1990 in Portland, OR. We also supported a
series of public meetings around the country in January 1989 to gather
public input to assist Congress in drafting legislation (Headquarters and
Region I in New England). The resulting bill, HR 4250 “The State and
Local Multi-Objective River Corridor Assistance Act of 1990”, was
introduced in March. We are conducting a pilot river corridor project
(emphasizing wetlands in the watershed) with the National Park Service to
link the Park Service’s Delaware River Program and OMEP’s National
Estuary Program on Delaware Bay. Region III is involved in this effort.
Office of Weilands Pntecuon March 23, 1990
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Federal Agency Policies and Programs Page 2
• Wetlands Management on Public Lands-- Many wetlands are in public
ownership and policies that better address wetland protection and restoration
need to be developed. Current policies of various public land management
agencies may conflict with or ignore wetlands protection. The no net loss goal
needs to become an integral piece of public land management policy and the
agencies appear receptive at the staff level. Key activities:
- OWP has initiated efforts with key federal land management agencies
to encourage and coordinate wetlands protection activities. These
agencies include Forest Service, Bureau of Land Management, Bureau of
Reclamation, Soil Conservation Service, Corps of Engineers, and National
Park Service. OWP and the Forest Service have also encouraged dialogue
at the regional level by sponsoring joint meetings between headquarters
and regional staff to discuss issues of regional concern in Regions V and
V III.
- EPA sponsored a wetlands and land management workshop in October
1990, in Harpers Ferry, West Virginia. At the workshop nine federal
agencies developed a set of recommendations identifying future
cooperative activities. An informal group, called the Interagency Wetlands
Coordinating Body began meeting regularly following the workshop to
begin carrying out the recommendations. The federal land management
agencies are interested in setting an example for the country on how to
implement the President’s no net loss goal.
Agricultural policy-- perhaps the most promising arena for advancing
protection of wetlands. Key activities:
- OWP is an active member of the EPA Agriculture Policy Committee
and we are working with OPPE, USDA, FWS and outside agricultural and
environmental interests on conservation provisions for the 1990
reauthorization of the Farm Bill.
- During the fall of 1989, OWP participated on a USDA Wetland Analysis
Team to develop recommendations for the Conservation Title of the 1990
Farm Bill. In February 1990 OWP began participating on an internal SCS
committee to develop a wetlands restoration initiative.
- We are engaged in ongoing discussions with USDA concerning programs
and policies, and public outreach to the agricultural community on
wetlands.
Ollice of Wetlands Protection March 23, 1990
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Federal Agency Policies and Programs Page 3
Isrues:
After many years of budget pressures on federal domestic agencies,
many feel squeezed in carrying out their current programs. It will be
difficult to persuade them to divert resources to new initiatives for
wetlands protection, and 0MB may resist any budget requests from the
agencies for increased funding for wetlands protection.
• Strong leadership from the Domestic Policy Council to re-direct agency
priorities is important, but it remains to be seen if it will be forthcoming.
Regional Opportunities:
• The 404 Program cannot, even under the best of circumstances, achieve
the President’s no net loss goal by itself. OWP has identified a great deal
of additional progress that can be accomplished working with federal
agencies in areas unrelated to the 404 Program. The federal agencies
have expressed substantial interest in working with EPA to accomplish this
at headquarters, and we would like to extend these growing cooperative
relationships to the Regional level. Headquarters staff will work with
interested Regions to identify strategies for initiating and implementing
these activities. Examples include:
- Work with S S to encourage enrollment of wetlands into the
Conservation Reserve Program.
- Encourage wetlands restoration on private lands in cooperation with SCS
and FWS.
- Hold a regional workshop on wetlands on Federal lands to develop an
agenda for regional cooperation similar to the Harper’s Ferry Workshop.
- Meet with the Forest Service and/or BLM to discuss land exchange
policies, riparian restoration initiatives, and any other issues of concern
identified.
- Work with flood loss reduction program staff within COE, FEMA, SCS
and other Federal agencies to identify ways to achieve flood loss reduction
while protecting the natural values of the floodplain, including wetlands.
- Hold a regional conference on multiobjective river corridor management
focussing on innovative methods for restoring rivers and wetlands.
Office of Wetlands Protection March 23, 1990
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STATE, LOCAL, AND TRIBAL WETLANDS PROGRAMS
Objective: To provide encouragement, guidance and assistance to other levels of
government to develop programs and improve protection of wetlands within their
jur isdiction
Priorifte :
• Serve as clearinghouse to provide useful information on State programs. Key
activities:
- We are working with the Conference of State Legislatures to produce a
brochure on the values of wetlands (why protect wetlands) and various
options available to protect wetlands.
- We have a contractor working on a State wetlands protection funding
study. This study will show what States are doing to finance their
wetlands protection programs. States will have a range of options
available for them to consider within their State.
- We are working with the Association of Wetlands Managers to simplify
and update the State wetlands data files. These files describe what each
State is doing to protect their wetlands resources. They will include a
summary of statutory and regulatory authorities, scope of jurisdiction,
definition of wetlands, activities regulated, permit processing procedures,
environmental review guidelines, program contact, and any other pertinent
information.
Provide regulations, guidance and assistance on State and Tribal programs.
- We have published proposed regulations on treating Indian Tribes as
States for the purpose of assuming the Section 404 permit program. Final
regulations are expected in the fall of 1990.
- We have published joint guidance with Office of Water Regulations and
Standards (OWRS) on developing water quality standards for wetlands.
This will help States strengthen their Section 401 water quality
certification programs. This is especially useful in those States that do not
have specific statutory authority to develop a wetlands protection program.
- We have developed joint guidance with OWRS for linking the wetlands
protection program with the non-point source program.
0 ( 1 1cc of Wetlands Protection March 23, 1990
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State, Local, and Tnbal Wetlands Programs Page 2
- We have initiated our new grant program to support development of
new State programs or enhancement of existing programs. The reaction
to the first year of the grant program (over 30 States applied) was
encouraging and should help get the additional funding (total of $5
million) requested in the Administration’s budget request.
- We have developed an Indian Tribe wetlands program implementation
strategy. OWP will work to include Indian Tribes in the partnership
(FederallState/’local) to protect our national wetlands resources.
- ‘We will encourage States to become more involved in the Section 404
regulatory program by encouraging joint permit processing, development
of appropriate State program general permits, and other means that will
encourage direct involvement of States in the program.
- We initiated a local government outreach program to encourage local
wetlands protection programs.
- We are developing a wetlands educational strategy for local
governments through the University of New Orleans. This Will include a
guidance strategy to be used by States or Regions to help local
governments develop wetlands protection programs, and a handbook for
the local government to use.
- We are preparing detailed case studies of 3 local programs for
distribution to interested local governments.
- We will work with Slates as they try to implement the goal of no net
loss either by enacting new or revised legislation or regulations, or as they
develop and implement their existing wetlands protection programs
- We will continue to monitor State activity in regard to wetlands
protection efforts. There is considerable activity at the State level:
-1 State has assumed the 404 program (MI)
-1 State is preparing assumption documents (NJ)
-4 States are studying assumption (WI, AL, IDE, NH)
Office of Wetlands Protection March 23, 99O
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State, Local, and Tnba Wetlands Programs Page 3
-15 States have comprehensive wetlands protection programs (CN,
FL, ME, MD, MA, MI, NH, NJ, NY, OR, PA, RI, VT, WA, WI)
-24 States have limited wetlands protection programs (mostly
coastal States)
-7 States are working on wetlands legislation (DE, IL, NC, NY, PA,
SC, VT)
-7 States are working to build on or improve existing wetlands
protection programs (AZ, DE, ME, MD, MO, NY, PA,
-5 States are improving their 401 water quality certification process
(OH, MI, NC, SC, VA)
Issues:
• States are becoming more interested and involved in the wetlands
protection program. Fiscal constraints and interest group backlash are
problems that face the States as they develop and implement their
wetlands protection programs.
• Wetlands protection is not just a Federal program. State, Tribal, and
local governments must join with the Federal government to effectively
protect the resource. Each level of government has an array of tools
available to it; working together increases the protection of the resource.
Regional Oppommitie
• Advocate the new State wetland grant authority to enhance State
wetlands programs. We have received strong applications from many
States -- Regional efforts to make sure grant money is spent on time and
productively will assist in gaining future funding.
• Some regions are working closely with the Corps and the States to
integrate the Section 404 program with existing and developing State
regulatory programs. This is an opportunity to protect wetlands better,
reduce burdens on the regulated public and deflect some of the negative
views of the more active Section 404 program at the Federal level.
Office of Wetlands Protection March 23, 1990
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Sta%e, Local, and Tnbal Wetlands Programs Page 4
Many Regions are actively working with States as the States develop
wetlands protection programs. Some States seem receptive to establishing
no net loss goals and regulatory programs that cover a broader range of
activities than the Section 404 program. This is an opportunity to fill
some of the regulatory gaps in the Section 404 program, especially the
limitation in coverage only to discharges of dredged and fill material.
• There is considerable interest among local governments in some areas
to enhance their protection of natural resources, including wetlands. This
is an opportunity that Regions can take advantage of. Such programs
would not take the place of either Federal or State programs, rather they
can be another link in the total patchwork of wetlands protection. If
strong local programs exist, Regions should work with the Corps to
integrate them into the existing programs.
Office of Wetlands Protection March 23, 1990
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PUBLIC INFORMATION AND EDUCATION
Objective: to improve the public’s understanding of what wetlands are, their
functions and values, ways to protect them, and EPA ‘s role in wetlands protection
Ptiorities:
• Over the past few years we have prepared a variety of materials for use in
our public outreach program: a wetlands booklet (Vital Link); a bibliography;
slide shows; a mailing list; fact sheets; a wetlands display; Public Service
Announcements, and an update of the Golden Guide Series book “Pond Life” to
better address wetlands (to be published in 1990).
• While there is certainly a heightened awareness of the value and importance
of wetlands, we believe that continued focus is needed to educate the general
public. Many of our activities will be targeted towards youth, for example,
through educational curricula and adopt-a-wetland programs.
Regional Opportunities:
• Regions have been active in distributing existing information such as Vital
Link and the Wetlands are Wonderlands poster to the public and we encourage
that this effort continue. Many Regions have also been involved in developing
and distributing regional public information products. One particularly important
area of outreach in the immediate future is to get accurate information out on
the Section 404 program. There is considerable misinformation on this program
that has many constituencies, such as agriculture, concerned about problems that
may not exist or may not be as serious as perceived. We suggest a broad
dissemination of the brochure “Highlights of Section 404” that we provided to
each Region in January of this year.
• Encouraging communities or other groups to ‘ t adopt a wetland or encouraging
States to establish an adopt a wetland program is another opportunity. We will
distribute copies of the brochure on adopt a wetland that we are developing for
Earth Day 1990 to each Region in the near future.
Office of Weilands Prolethon March 23, 1990
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INTERNATIONAL ACFWITIES
Objective: To provide assi$tance to other nations and multi-national initiatives to
protect wetlands, and to use internatiinal agreements effectively to improve
protection of U.S. wetlands
F iorities:
• Over the last year we have identified opportunities for EPA to participate
effectively in the international arena. Key activities:
- we are promoting the concept of ecotourism as a way to allow local
economic development in a way that protects sensitive natural resources.
We have developed Guidelines for public participation in ecotourism
projects and participated in the Ecotourism Conference in Yucatan,
Mexico, April 1989.
- we are developing links with the Convention on Wetlands of
International Importance Especially as Waterfowl Habitats (Ramsar
Convention) and are working with other agencies in developing a Ramsar
Interagency Task Force and U.S. National Ramsar Committee for Non-
Government Organizations (NGO’s). We plan to reinforce our
participation with a small grant.
- we are establishing small grants with the Asian Wetland Bureau and the
International Union for Conservation of Nature and Natural Resources.
OWP plans to seek opportunities to influence the kinds of projects that are
planned in developing countries to avoid the massive wetlands destruction that
has sometimes occurred in the past. Key activities:
- try to influence multilateral development banks on their environmental
policies and the projects that they fund
- serve as a clearinghouse for technical expertise for environmental
analysis of wetland impacts of development projects
- promote the concept of sustainable use of natural resources
Office of Wetlands Protection March 23, 1990
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INTERNAL EPA PROGRAMS
Objective: to make EPA a model federal agency for avoiding adverse impacts to
wetlands and for using our programs creatively and effectively to adtance the cause
of wetlands protection
• To integrate wetlands into the water quality management program that has in
the past emphasized open waters and point source controls. We are working to
bring wetlands into the mainstream of the water program. Key Activities:
- we are extending State water quality standards (WQS) to wetlands.
OWP and OWRS are coordinating on several related activities, including
(1) the revision of the WOS regulation to require the inclusion of
wetlands in the definition of ‘State waters” and the application of the
minimum requirements, (2) the development of national guidance on
WQS for wetlands to be included in the FY 91 Operating Guidance, (3)
inclusion of wetland standards in the WQS Framework, (4) direct support
to selected pilot states (WA, LA, NC) and (5) regional workshops.
- We are encouraging States to extend monitoring programs to wetlands.
Consistent nationwide monitoring of wetland quality and quantity
(acreage) can provide the basis for a wide range of regulatory and non-
regulatory activities. One priority is to develop a system to track progress
in meeting the “no net loss goal.” OWP and OWRS are working to
address wetlands in the Section 305(b) reporting process, both through the
1988 report and the Guidelines for the 1990 reports. OWP and 0MB ?
are coordinating to apply the Waterbody System (OWRS’s computerized
system for tracking waters for 305(b)) to wetlands and estuaries.
To integrate wetlands protection into water program activities which share a
landscape/watershed approach to protection. Key Activities:
- OWP and OWRS are developing national guidance on the coordination
of the wetlands and nonpoint source (NPS) control programs. Many
wetlands provide water quality benefits. Within the landscape, the
protection and restoration of wetlands can help us to achieve our NPS
control objectives. In return, information on those wetlands that provide
water quality functions can then be used by wetland programs (Federal
404 and State programs) as the basis for taking regulatory actions.
- OW? and 0MB ? are incorporating wetland considerations more
Office of Wetlands Protection March 23, 1990
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laternal EPA Programs Page 2
effectively into National Estuary Program (NEP) conferences and Near
Coastal Water (NCW) programs. Activities include review and additions
to the NEP primer, review of NEP nominations, review of NCW
demonstration project proposals and a series of OMEP I OW? brown
bags to raise awareness of habitat issues in the coastal zone.
o To work with the RCRA and CERCLA programs to address the ecological
effects of waste sites on wetlands in addition to traditional human health
concerns. Key Activities:
- With funding from Superfund and ORD, we are developing a data base
that will identify the ecosystem type found in and around all sites on the
National Priority List (NPL). The database will identify whether the site
is in a wetland, deepwater habitat, or upland ecosystem. It will also
identify the type of wetland. The National Wetlands Inventory maps
developed by the U.S. Fish and Wildlife Service are the primary source of
information. The data will be available on computer and hard copy
provided to HO and the Regions. The information will help both
programs conduct screening to determine whether sites have a high
potential for impacting wildlife.
- We review and comment on Superfund and RCRA regulations, policies
and guidance regarding the treatment of ecological issues.
- We are working with OPPE to encourage the use of wetlands
mitigation banking to offset the impacts of wetland losses at Superfund
sites.
Issues:
• There is very limited wetlands staffing available in the Regions for
participating in non-404 related activities. We have to rely on other program
staffs to implement many activities.
• Current Superfund legislation severely limits any use of the Fund to remediate
the ecological damages from hazardous waste discharges to wetlands.
o There are institutional barriers that hinder coordination between programs at
the Federal and State levels. For example, wetland programs are often within a
different regional division or State agency than water quality management or
hazardous waste programs.
Office of Wettands Protection March 23, 1990
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t nernat EPA Programs Page 3
Regional Opportunities:
There is potentially a high payoff from even a minimal involvement of
Regional wetlands staff in other EPA programs, for example, in coastal activities
such as the NEP and NCW programs. Some of the NEP conferences would
benefit substantially from some general direction on aquatic habitat protection
and restoration. One avenue for protecting wetlands is through Action
demonstration projects that can be funded. For example, the San Francisco Bay
NEP has funded eight wetland restoration sites. In addition, considerable
funding is available for demonstration projects under the NCW program.
Regions could suggest or review projects from States which incorporate an
aquatic habitat component. Examples of past projects funded include:
restoration techniques for coastal Louisiana wetlands and constructed wetlands
for wastewater and stormwater treatment.
Of ce of Wedands Protection March 23, 1990
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WETLAND STRATEGIC INITIATIVES
Objective: to influence national policies and laws to improve wetlands protection
and restoration; and to develop and implement new approaches to provide more
comprehensive protection of wetlands.
Ptiorities:
• Assist in the development of national policies and laws to increase protection
and restoration of wetlands. Key activities:
- Most of our effort in this area over the last several years has been
through the National Wetlands Policy Forum and in follow-up activity to
implement recommendations in the Forum report and subsequent papers
on legislation, administrative action, and state programs. Our first step in
this regard was issuing a short-term “Wetlands Action Plan” in January
1989 which adopts the Forum’s wetland goals and begins work on many of
the actions. To the extent that it remains a viable effort, we will
participate in the Domestic Policy Council’s wetlands task force to work
on revisions to the Wetlands Executive Order 11990.
- Congress is reauthorizing existing laws and considering many new bills
which impact wetlands. We look for opportunities to impact wetlands
through upcoming legislative decisions and work with other offices and
agencies to develop EPA and Administration positions on legislative
proposals for presentation to Congress. Key legislative reauthorizations
coming up are Coastal Zone Management Act, Farm Bill, Coastal Barriers
Resources Act, and Federal Flood Insurance Act. In addition, new
legislation affecting wetlands has been proposed in areas such as coastal
Louisiana wetlands, general coastal legislation, and tax and other
incentives to protect wetlands.
Work with the Regions to develop ecosystem strategies for geographical areas
where wetland losses are particularly high and resistant to traditional approaches
for solving the problem. Key activities:
Coastal Louisiana has unique coastal wetlands loss problems resulting
from past Corps of Engineers projects to control the Mississippi;
navigation and oil and gas activity; and sea level rise. We are working
with Region VIto develop an EPA strategy for coastal Louisiana.
Of(ice of Wetlands Protection March 23, 1989
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Wetland Strategic initiattv Page 2
Western riparian habitat is environmentally important, scarce and highly
threatened. We are contributing to initiatives to address this problem by
providing guidance on grazing management, developing a technique to
evaluate the functions of riparian habitat, and co-sponsoring a workshop
on the problem.
Encourage better environmental planning for wetland resources by providing
information, guidance, and technical assistance for such approaches. Planning is
a potential tool to get ahead of permit by permit decisions, to address wetlands
as pieces of larger functioning ecosystems, and to link and target various
protection and restoration programs. Key activities:
- We are conducting case studies of local planning approaches involving
wetlands with the Urban Land Institute and the Environmental Law
Institute.
- We are examining the concept of State Wetland Conservation Plans
(SWCP) put forward by the Wetlands Forum. We will be conducting an
initial workshop to further develop the Forum’s model for SWCP’s, and to
identify key components, technical information needs, and similar planning
approaches which could be applied. We plan to develop a guidance
document to highlight successful approaches and provide techniques which
states can use in developing a SWCP.
- We developed through the Conservation Foundation a training
curriculum for federal and State staff on negotiation skills and effective
participation in wetlands planning.
- We participate in the Urban Land Institute’s Federal Permits
Workgroup, which examines the use of environmental planning to resolve
development! environment conflicts.
Issues:
It will be a challenge to carry forward with the consensus on directions in
wetlands policy that was achieved by the National Wetlands Policy Forum. As
we get to the nuts and bolts of implementation, it is difficult to maintain
agreement among the interests represented by Forum members, and the views of
parties that were not members of the Forum also come into play. The progress
Office of Weilands Protection March 23, 1989
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Wetland Strategic 1nitiativ Page 3
of the Domestic Policy Council’s wetlands task force is very uncertain as a
vehicle for implementing some of the Forum’s recommendations.
• A major problem impeding the effectiveness of wetlands protection in the
U.S. is lack of sound environmental planning that addresses wetlands as an
integral component of the landscape. Land use and natural resource planning
have not been well accepted in many parts of the U.S., where rugged
individualism and unrestrained private development are an ingrained part of our
culture. Because of negative perceptions of federal land use planning, it is
important to work with and encourage involvement of the state and local
governments.
We should also avoid promoting planning as an end in itself, but rather
emphasize the need to incorporate implementation agreements and provisions
for plan updates as an integral part of a planning process. We should be wary
of the pitfalls of expensive and time consuming planning processes which do not
achieve results.
Regional Opporiunities:
• A first step in considering the need for ecosystem strategies is to identify
wetland areas experiencing high loss or degradation which require a broader or
different approach than that provided by individual permit review. One
consideration is identifying areas where Advance Identification can mesh with
other federal, state, local planning mechanisms to help ensure that AD1D studies
are linked to concrete actions such as full or partial title purchases, zoning
restriction, state and local permit decisions, and incentive programs.
Headquarters can provide assistance to Regions developing ecosystem strategies
in areas that cut across regional boundaries, that have national significance, or to
demonstrate new approaches. A good example of recent progress at the
Regional level is Region Viii’s prairie pothole initiative.
Office of Wetlands Protection March 23, 1989
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WETLANDS SCIENCE
Objective: To improve the scientific basis for EPA wetland decisions and to
promote the development of national policies and approaches that are scientifically
sound
P iotities:
• Successfully execute EPA’s wetlands research program to meet the most
pressing needs for scientific information in the areas of wetland restoration and
creation, cumulative impacts asessment, and wetlands/water quality, and to
transfer this information to the field for practical application in EPA and State
wetland programs. ORD’s wetlands program manager is in the Corvallis,
Laboratory, and the research is conducted primarily at the Corvallis and Duluth
Labs. An important component of the program is transferring the results for
application by EPA’s Regional wetlands staff. The Regions have established a
program position at Corvallis exclusively for technology transfer activities.
Attachment A describes EPA’s wetlands research program.
• Develop technical tools for improving implementation of the Section 404
Program, such as the Federal Manual for Identifying and Delineating
Jurisdictional Wetlands. On January 10, 1989, the Environmental Protection
Agency (EPA), Corps of Engineers (Corps), Soil Conservation Service (SCS) and
U.S. Fish and Wildlife Service (FWS) adopted the “Federal Manual for
Identifying arid Delineating Jurisdictional Wetlands” (Federal Manual). The
Federal Manual, which went into effect for 404 Program purposes on March 20,
1989, supersedes independent methods previously used by different Federal
agencies. It clarifies that these four agencies agree on what constitutes vegetated
wetlands under the Federal Manual. The Federal Manual presents specific
mandatory criteria for hydrophytic vegetation, hydric soils and wetlands
hydrology. It also presents field indicators for these criteria, along with
consistent, yet flexible, sampling procedures. Many years of technical experience
gained from developing earlier agency-specific wetland delineation manuals went
into the development of the Federal Manual.
The Interagency Committee for Wetland Delineation (ICWD) that
developed the Federal Manual initiated a training program for their technical
personnel in 1990. Personnel from each of the agencies participated in a
training program for trainers in Houston, Texas on the Federal Manual. They
will subsequently train additional personnel at six locations around the country.
Additional Federal training is also planned for 1991 and training for the States is
planned for the fall of 1990.
office of Wetlands Protection March 23, i990
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Weikands Science Page 2
Another scientific tool currently being developed is a technical reference
document on water supply alternatives. Water supply impoundments can have
serious adverse impacts on wetlands and special aquatic resources.
Impoundments may inundate upstream wetlands, dewater downstream wetlands,
or divert critical wetland water sources. EPA initiated vetoes under authority of
Section 404(c) of the Clean Water Act for impoundments impacting wetlands
and special aquatic resources in Big River, Rhode island; Pamo Dam, California;
Two Forks, Colorado; and Ware Creek, Virginia. Because impoundment
projects sometimes impact large acreages of wetlands, EPA recognizes the
potential for additional conflicts with the goal of no net loss of America’s
wetlands, especially in the arid southwest and in rapidly growing coastal areas.
EPA., in cooperation with the Environmental and Energy Study Institute and
the Keystone Center held a workshop February 14-16, 1990, to evaluate water
supply options, such as conservation, efficient management, and alternative
supplies. There were over eighty participants including state and local water
supply managers; experts in economics, demography, hydrology, engineering, law,
and ecology; conservation groups; and federal agencies (the Institute for Watel
Resources of the Army Corps of Engineers, the Bureau of Reclamation, Soil
Conservation Service, the Forest Service, The U.S. Fish and Wildlife Service, the
U.S. Geological Survey, and the Bureau of Reclamation).
Papers, a transcript of discussions, and the technical reference document
will be prepared for use in evaluating alternatives to traditional water supply
impoundments.
We are also developing lists of fauna that rely upon wetlands habitat. A
computer database of wetland mammals, birds, fish, reptiles and amphibians was
generated from Nature Conservancy and state heritage program files. It will be
used to evaluate 404 permits and for citizen monitoring efforts. it includes
broad wetland categories (marine, estuaririe, riverine, lacustrine, palustrine) with
bare substrate, herbaceous, shrub, or wooded vegetation as well as isolated
wetland ecosystems (playa lakes, salt flats, headwaters streams, temporary pools,
bogs, and lens).
The database will facilitate better assessments of non-game species and
biotic diversity than has been characteristic in federal efforts to date. Three
groups (birds, fish and amphibians) are especially significant for assessing wetland
habitat losses and water quality impacts. Fish are acutely sensitive to water
quality, especially nonpoint sources hard to measure by traditional chemical
specific approaches. Amphibians are very sensitive to the loss of small wetland
habitats, and migratory birds to overall losses of wetland habitat. Birds have
Office of Wetlands Protection March 23. 1990
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Vctkands Science Page 3
been one of the first indicators of bioaccumulation of toxic substances in
wetlands.
The first application of our wetlands species data will be by the Florida
Audubon Society to develop a citizen’s monitoring program.
Issues:
Although ORD and OW have invested considerable time and energy in a
workplan for developing water quality criteria for wetlands, we need to secure
the funding for ORD to implement it. Budget initiatives are proposed for Fiscal
Years 91 and 92.
Opposition to the unified federal method for identifying and delineating
jurisdictional wetlands has developed in the regulated community. We need to
ensure factual information about the method and its scientific basis is broadly
communicated. Perhaps the biggest issue is the perceived expansion of
jurisdiction. The use of the Federal Manual will, in the great majority of
instances, result in jurisdictional determinations similar to those that would have
been obtained with the proper application of either the previous Corps of
Engineers or EPA method. However, changes in the extent of jurisdiction are
occurring as a result of the Manual, mostly because use of the Federal Manual is
now mandatory. Previously, field units had the flexibility to either use the Corps
and EPA manuals, or substitute their own approach. There was wide variation
in the methods used - for example, one field office would not recognize any area
dominated by trees as a wetland; another in the same agency would not
recognize any area as a wetland unless it were dominated by trees. In areas
where field units were previously using methods that resulted in narrowed scope
of jurisdiction, the Manual has resulted in changes, some of them substantial.
However, this is necessary to ensure consistent and equitable application of the
regulatory definition of wetlands nationwide. The joint manual is a significant
step forward as it will further assure consistency and repeatability in wetland
jurisdictional decisionmaking, which the regulated sector has sought for a long
time.
Another concern relates to the misconception that any area with hydric soils
is considered wetlands. A related issue is the impact of the Federal Manual in
general on agricultural interests. The Federal Manual does consider agricultural
fields that have hydric soils and wetland hydrology to be wetlands, if under
normal circumstances, they would support hydrophytic vegetation. These are
commonly referred to as farmed wetlands. The Soil Conservation Service also
acknowledges the existence of farmed wetlands under the Swampbuster
Office of Wetlands Protection March 23, 1990
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provisions of the Food Securities Act of 1985. In the absence of tilling, such
areas would revert to wetland vegetation since they have hydric soils and wetland
hydrology. A very important thing to keep in mind is that wetland hydrology still
must exist for a disturbed site to be considered wetlands. Thus, not all areas
with hydric soils are wedands .
• The water supply impoundments issue is controversial and politically charged.
While it is important that we develop our technical guidance within a short
timeframe, we need to be thorough and careful, as it Will be subject to close
scrutiny.
Offlce of WeUanth PmteeLto March 23, 1990
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Attachment A
EPA’S WETLAND RESEARCH PLAN
BACKGROUND : In 1985, Administrator Lee Thomas requested that the agency
develop a strategic framework for wetlands protection. A conclusion of the Strategic
Planning Initiative, conducted by OPPE, was that serious deficiencies in scientific
understanding of wetlands were impeding sound management of these resources. A
major outgrowth of this was the development of EPA ’s Wetlands Research Plan
(November, 1985).
The effort to develop the 1985 plan was guided by ORD with extensive input
from EPA Headquarters and Regional Offices, other Federal agencies, the scientific
literature, and individual scientists with wetland expertise. Three priority research
topics were chosen:
• Wetlands mitigation (i.e., creation, restoration, enhancement).
• Cumulative impact assessment.
• Water quality functions of wetlands.
ORD’s wetlands program manager is in the Corvallis Laboratory, and the research
is conducted primarily at the Corvallis and Duluth labs.
CURRENT RESEARCH ACTIVITIES : A number of products have resulted from the
1985 wetland research plan. Other efforts are still ongoing and some new research
topics have been added since the original plan was produced. The topics currently
emphasized include:
• Characterizing and evaluating the mitigation of wetland losses.
• Determining the water quality functions of wetlands.
• Establishing the technical foundation for water quality standards necessary to
protect wetland function.
• Characterizing the ecological statul and trends of inland wetlands.
• Developing and testing methods for assessing the cumulative effects of wetland
loss and degradation.
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• Transferring wetlands research results to program clients.
• Analyzing wetland functions on a variety of scales, including individual wetlands,
regions, and landscapes.
MAJOR AREAS OF EMPHASIS :
1. Characterization and Evaluation of Wetland Mitigation Efforts.
This research is timely in light of the fact that EPA recently adopted a “no net
loss” policy for the nation’s remaining wetland base, and has vowed to initiate projects
to restore and create wetlands to increase the quality and quantity of the nation’s
resources. The steps involved in the mitigation research include: 1) initiation of a
literature search to consolidate the current knowledge on created and restored wetlands,
2) analysis and evaluation of 404 permit databases for the states of OR, WA, TX, AR,
LA, MS, and AL for trends in wetlands loss, 3) developing a method for comparing -
functions of created/restored wetlands with natural wetlands and 4) comparison of field
data for naturally occurring and created wetlands.
2. Water Quality Functions of Wetlands.
The Wetlands Research Team developed a comprehensive Water Quality plan
entitled Wetlands and Water Quality: EPA’s Research and Monitoring Implementation
Plan for the Years 1989-1994 . The plan addresses EPA’s concern that existing surface
water quality criteria may be inadequate for protecting the chemical, hydrological, and
biological integrity of the wetland resource. The Plan specifically proposes to address
the Wetlands Forum’s recommendation that “EPA and the state water pollution control
agencies review the implementation of the Water Quality programs to ensure that they
are offering adequate protection to the chemical integrity of wetlands.”
Despite the fact that hundreds of studies have examined the ability of wetlands
to process various anthropogenic substances, knowledge does not exist to answer some
important questions such as “What are safe loading rates for wetlands?” Research
designed by the Wetlands Research Team will address such issues.
A newly initiated research project also examines the ecological status of
wetlands--The Inland Wetlands component of EMAP--an environmental monitoring and
assessment program. The goal of EMAP is to monitor the health and status of the
nation’s ecological resources. The objectives of inland wetlands EMAP is to monitor
the health and status of the nation’s inland wetlands. The Wetlands Research Team, m
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collaboration with Environmental Photo Interpretation Center, is currently evaluating
sampling schemes and bioindicators for the long term monitoring scheme.
In addition, research designed by the Wetlands Research Team will address the
ability of wetlands to process pollutants.
3. Cumulative Effects Research.
This Research addresses the following objectives:
a) develop methods to assess the cumulative impacts of wetland loss on landscape
functions, b) document the cumulative impacts of wetland loss on landscape function, c)
determine the role of wetlands in landscape function, and d) provide technical support
or planning approaches to protect wetland resources. A hierarchy of assessment
methods is under development to rank the sensitivity of watersheds to cumulative
impacts of wetland loss, including a Synoptic Approach to cumulative effects. The
Synoptic Approach is a rapid assessment method which can be used to help 404
personnel evaluate applications to alter wetlands in the context of the landscape. It is
an innovative approach to wetlands planning and is currently being tested in a pilot
project for Louisiana. It was developed by the Wetland Research Team for the
purpose of quickly and cheaply assessing the landscape sensitivity to cumulative effects
using national databases.
Another project involved a detailed landscape analysis study in illinois, which ranks
the sensitivity of watersheds to cumulative impacts of wetlands. The objectives of the
Illinois study are fourfold: 1) detect cumulative impacts, 2) determine the significance
of wetlands to landscape function, 3) determine the value of information in a
cumulative impact assessment, and 4) test a standardized methodology for cumulative
impact assessment that can be used by state and regional offices for wetland decision
making.
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