f
Protecting Our Wetlands
-------
Jn his book, A Sand County Alniiuiac.
famed naturalist Aldo Leopold ivrole
about a pristine marsh I'D Manitoba
named Clandeboye. He feared that even
Clandeboye would one day vanish, like
(lie wetlands o/lhe United Sidles.
We quote here UK; final, prophetic
passage from Leopold's essay
"Clandeboye":
The marshlands that once sprawled
over the prairie from the Illinois to
the Athabasca are shrinking northward,
Man cannot live by marsli alone,
therefore he must needs live marshless.
Progress cannot abide that farmland and
marshland, wild and tame, exist in
mutual toleration and harmony.
So with dredge and dyke, tile and
torch, we sucked the cornhelt dry, and
now the wheathelt. Blue lake becomes
green bog, green bog becomes caked
mud, caked mud becomes a \vheatfield.
Some day my marsh, dyked and
pumped, will lie forgotten under the
wheat, just as today and yesterday will
lie forgotten under the years. Before the
last mud-minnow makes his last wiggle
in the last pool, the terns will scream
goodbye to Clandeboye, the swans will
circle skyward in snowy dignity, and
the cranes will blow their trumpets in
farewell, a
From A Scinrl C'muih Aliutinut /\nd Skrirhrs Hf.'/'r
ami There bv Alilo l.ropnlit. C:
-------
United States
Environmental Protection
Agency
Office of
Public Affairs (A-107)
Washington DC 20460
Volume 12
Number 1
January/February 1986
x-xEPA JOURNAL
Lee M. Thomas, Administrator
Jennifer Joy Manson, Assistant Administrator for External Affairs
Linda Wilson Reed, Director, Office of Public Affairs
John Heritage, Editor
Susan Tejada, Associate Editor
Jack Lewis, Assistant Editor
Margherita Pryor, Contributing Editor
U.
NCEE
LI
EPA is charged by Congress to pro-
tect the nation's land, air, and
water systems. Under a mandate of
national environmental laws, the
agency strives to formulate and im-
plement actions which lead to a
compatible balance between hu-
man activities and the ability of
natural systems to support and
nurture life.
The EPA Journal is published by
the U.S. Environmental Protection
Agency. The Administrator of EPA
has determined that the publics -
tipn of this periodical is necessary
in the transaction of the public
business required by law of this
agency. Use of funds for printing
this periodical has been approved
by the Director of the Office of
Management and Budget. Views
expressed by authors do not neces-
sarily reflect EPA policy. Contribu-
tions and inquiries should be ad-
dressed to the Editor (A-107),
Waterside Mall. 401 M St.. S.W.,
Washington, D.C. 20460. No per-
mission necessary to reproduce
contents except copyrighted photos
and other materials.
Saving Wetlands:
An Urgent Task
by Jennifer Joy Manson
Wetland Regulation:
Four Viewpoints
on Section 404 3
Fulfilling the Aims
of a Wetlands Program
by Robert K. Dawson (J
Doing a Better Job
of Conserving Wetlands
by John H. Chafee 10
Steps to Strengthen
Wetlands Acquisition
by John Breaux 12
Who Cares
About Wetlands?
by Jay D. Hair 14
Racing Against Time
in the Rainwater Basin
by Felice F. Furst 16
Working to Save
Pennsylvania Peat Bogs
by Jane Offringa and
Karen Wolper 18
Wetlands and Oil:
Coexistence on the Tundra
by James M. Fosey 19
The Amerikanskis
Are Coming
by Fitzhugh Green 21
An Indian Policy
at EPA
by Jack Lewis 23
The Environment from
an Indian Perspective
by A. David Lester 27
Cleanup Strides
at a Gold Mine
by David VVann 29
Update 31
Appointments 32
Cover: Marshes in SI. Augustine,
Flo., arua. Photo by Fredde
Lieberman, Folio. Ini:.
Design (,'reiiils:
Robert Flanagan;
Hon Farnih.
The annual rate for subscribers in
the U.S. for the EPA Journal is
$20.00. The charge to subscribers
in foreign countries is $25.00 a
year. The price of a single copy of
the EPA /ournaJ is $2.00 in this
country and $2,50 if sent to a for-
eign country. Prices include mail
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-------
Saving Wetlands
An Urgent Task
by Jennifer Joy Manson
If asked to describe the kind of
environment that we seek to preserve
for future generations, the values that
would come to mind for many of us are
those that are provided by our nation's
wetlands. These areas—where our land
resources meet our water resources—
vary from tidal marshes to
hardwood swamps to prairie potholes to
bogs, and provide a host of important
ecological and economic services.
A major part of the commercial and
recreational fish catch in the United
States is comprised of species which
use wetlands as a food source or a
habitat. The fishing industry contributes
tens of billions of dollars annually to
the U.S. economy. Wetlands also
provide food and cover for many forms
of wildlife.
Wetland-based recreation, including
hunting, is vitally important to the
economy of many communities
throughout the country. The interaction
of water with soil and vegetation that
occurs in wetlands removes pollution
before; it enters our streams, lakes, and
estuaries.
Wetlands also absorb peak flows
during floods and release the waters
more slowly, reducing damages to
downstream farms and cities. Harvesting
wetland plants, including cranberries,
wild rice, and hardwood trees, generates
other important economic benefits.
While we understand these values
much better today than we did even a
few short years ago, we continue to lose
many kinds of wetlands. Freshwater
marshes along streams and bottomland
hardwood swamps are under strong
development pressures, as are the
isolated wetlands so important to our
migratory waterfowl populations.
Thousands of activities are
undertaken annually in the nation that
eliminate wetlands. While many of
iMimson is KI'A's Assismnl
Administrator lur h'xfrnmJ Af/airs,
-------
Section 4Q4 of the Clean Water Act
gave the Army Corps of Engineers
authority to issue permits /or "the
discharge of dredged or fill material into
the navigable waters [of the United
States] at specified disposal sites."
Section 404 also gave EPA a number of
responsibilities to assure that the
environment would be sufficiently
protected from the adverse impacts of
these discharges.
Prior to 1972, many of the "disposal
sites" for dredged or fill material had
been wetlands. It was common in those
days to equate wetlands with
wastelands. Since 1972, the "404
program" has developed into the most
important federal regulatory program
for the protection of wetlands.
Controversj' has surrounded the
program from its earliest days. Some
have questioned whether Section 404
was intended to provide any protection
for wetlands. Others, choosing to ignore
some very real limitations in the law,
have viewed Section 404 as providing
absolute protection for all wetlands.
Most experts have taken a position
somewhere between these two extremes.
Section 4O4 jurisdiction extends to all
waters of the United States to the
maximum extent permissible under the
Commerce CJause of the Constitution.
This broad judicial interpretation was
re-affirmed in December 1985. The
Supreme Court ruled that developers
seeking to discharge into wetlands
adjacent to other waters of the nation
are regulated under 404. Therefore, all
wetlands in the U.S. are under Section
404 protection, except isolated wetlands
that have no connection to interstate
commerce.
Inland freshwater wetlands comprise
95 percent of the remaining wetland
resource in the United States and 97
percent of the estimated 300,000 acres
of wetlands lost each year to
development. These losses include
isolated wetlands such as the prairie
The "404 program" has
developed into the most
important federal regulatory
program for the protection of
wetlands.
potholes of the north central part of the
country, which have very important
waterfowl habitat value. Many of the
losses involve drainage without a
discharge, which is not regulated under
the 404 program. The 1985 farm bill.
which was recentlv signed into law by
the President, should help to bring this
problem under control by discontinuing
subsidies to farmers who drain and
plant wetlands.
Approximately 11,000 project
applications under Section 404 are
processed each year by the
Corps of Engineers. EPA reviews and
evaluates them using its 404(b)(l)
guidelines, which contain the
environmental criteria for 404 permit
decisions. The Fish and Wildlife Service
and the National Marine Fisheries
Service also influence the 404
permitting process through their review
of applications. After receiving
comments from these agencies, the
states, and other interested parties, (fir
Corps of Engineers makes its permit
decisions.
Before permits arc issued. EPA has an
opportunity to exercise its authority to
prohibit, condition, or restrict the use of
any site if such use is found to "have an
unacceptable adverse effect on
municipal water supplies, shellfish beds
and fishery areas (including spawning
and breeding areas), wildlife, or
recreational areas." However, this action
occurs on only a small fraction of
projects.
As a result of this process, the' Corps
of Engineers annually denies slightly
more than three percent of project
applications. About one-third of the
permits are significantly modified from
their original application, and about 14
percent of the 11,000 annual permit
applications are withdrawn by
applicants.
The Congressional Office of
Technology Assessment bus estimated
that these denials, modifications, and
withdrawals save 50,000 acres of
precious wetlands every year.
The EPA Journal asked key officials
involved in the 404 program at the
Corps of Engineers, EPA, the Fish and
Wildlife Service, and the National
Marine Fisheries Service to comment on
how the program works and what they
are doing to improve it. Their remarks
follow:
JANUARY/FEBRUARY 1986
-------
Wetlands protection involves
some of the most difficult
issues of environmental
regulation.
Allan Hirsch
Director, Office of Federal Activities
Environmental Protection Agency
Wetlands are an important national
resource, and their protection is
one of KPA's top priorities. Under
Section 404 of the Clean Water Act, our
goal is to ensure adequate protection to
wetlands and oilier waters of the United
States within a decision process that is
objective, efficient, and reasonably
predictable.
That goal is easy to state in general
terms; in practice, it faces formidable
obstacles. The term "wetlands" covers a
wide range of ecosystems and
geographic: situations, from Alaska
tundra to the mangrove swamps of the
Southeast. There are many unresolved
scientific and technical questions
concerning how to determine the
significance of a proposed discharge to
specific wetlands, and how to assess the
cumulative impact of wetland loss. We
also lack an established threshold that
represents the line between acceptable
and unacceptable impacts. Without such
information it is often difficult to
quantify the tradeoffs between wetland
losses and the social and economic
benefits of development. Indeed,
wetlands protection involves some of
the most difficult issues of
environmental regulation, often
entailing conflicts between public
values and private property rights.
Further, under the Clean Water Act,
EPA shares responsibilities for wetlands
protection with the Army Corps of
Engineers, which is the authorized
permitting agency. The Fish and
Wildlife Service in the Department of
Interior, and the National Marine
Fisheries Service in the Department of
Commerce also have important advisory
roles. Thus, administering this
legislation is unusually complex and
calls for a high degree of coordination
among agencies whose missions do not
always coincide.
Smooth administration of Section 404
calls for a number of steps.
• A key priority is to continue to
improve federal interagency
coordination. There have been a number
of disagreements among the agencies
responsible for administering the Act,
which require resolution.
Recently, EPA and the Army signed
an agreement which establishes
procedures for resolving disputes
between the two agencies over proposed
permits. This is an important step. We
are also working to strengthen
coordination with other federal agencies
that have wetlands responsibilities.
• EPA must also do a better job of
clarifying its own policies internally.
Much of our activity consists of
reviewing permit applications and
making recommendations to the Corps
of Engineers. We need to make sure that
process is carried out consistently and
effectively, and we are developing more
explicit policy guidance for this
purpose.
• We need to focus more of our
attention on identifying, in cooperation
with the states and other federal
agencies, important wetlands that
require special protection before
applications for 404 permits are
received. We should identify geographic
areas, wetland types and impacts
meriting special attention. This year,
EPA regions began analyzing these
wetlands priorities. We need to use out-
authorities to increase up-front
recognition and protection of such
areas.
• We are also actively increasing our
enforcement efforts, principally against
unpermitted discharges. This increased
emphasis on enforcement should
strengthen compliance with permitting
requirements, as well as reduce
unauthorized wetlands losses.
• Wetlands loss is a national issue, but
it cannot be tackled without appropriate
state involvement and broad public
understanding. We need to help states
improve their technical and
administrative capabilities, we need to
explain the requirements and rationale
of the program to wetland owners and
permit applicants, and we need to
increase public involvement and
awareness.
• Finally, we must strengthen our
scientific and technical foundations.
The lack of data on wetlands increases
the difficulty of decision-making. We
need better methods to assess individual
and cumulative impacts of wetland
conversions as well as effective means
of mitigating impacts. We must also
seek a better understanding of the ways
in which wetlands improve water
quality. EPA has undertaken a wetlands
research initiative in cooperation with
other fedreal agencies to upgrade our
knowledge on these topics.
These steps will help improve our
ongoing wetlands protection activities.
EPA Administrator Lee Thomas also has
asked the agency's policy office to
analyze existing wetlands programs for
the purpose of developing a strategic
view of the entire problem that may
provide additional guidance on how to
build a more effective national wetlands
program for the future.
y
404 Permit Review and Decision Making Process
I
XX
COMMENTS A
ARMY \.
CORPS OF\
ENGINEERSN
K \
Review by government agencies, interest groups, and the publ
•5 p'
<
APPLICATION ) PUBLIC NOTICE J o ppA
V
DECISION J
/ • request higher level review
/ (as can U.S. Fish and Wildlife Service
/ and National Marine Fisheries Service]
^^/ t * restrict use of site for discharges
L DENY PERMIT
L ISSUE PERMIT
L
ISSUE PERMIT
) 7 ' t
V r \ J
AS REQUESTED > J
v r \
WITH CONDITIONS/MODIFICATIONS }
"Where state lias not assumed 4U4 program. To date, only Michigan has assumed.
EPA JOURNAL
-------
Mosf wetland losses in this
country occur outside the
limits of 404.
H. J. Hatch
Major General, U.S. Army
Director of Civil Works
The role of the Army Corps of
Engineers in administering Section
404 of the Clean Water Act (CVVA) is to
decide which of the many competing
interests for the use of waters of the
United States are not contrary to the
public interest. Accordingly, we are
reluctant to make emphatic statements
on what Section 404 is or is not in
terms of wetland protection. Emphatic
statements (in either direction) would
create a "blanket" approach in
evaluating some of our most
troublesome permit applications,
namely, those involving fill in wetlands.
This approach would not, in our
opinion, fulfill the purpose and goals of
the CWA.
In the introductory paragraphs,
Congress declares the objective of the
Act, which is ". . .to restore and
maintain the chemical, physical and
biological integrity of the Nation's
waters." Congress further sets forth the
goals and policies, including
elimination of unpermitted discharges
of pollutants into navigable waters;
attainment, where possible, of water
quality which provides for the
protection and propagation of fish,
shellfish, and wildlife and provides for
recreation in and on the water;
provision of federal assistance to
construct publicly-owned waste
treatment works; development of
area-wide waste treatment management
planning processes to adequately
JANUARY/FEBRUARY 1986
control sources of pollutants in each
state; and launching a major effort to
develop technology for eliminating
discharges of pollutants into navigable
waters, waters of the contiguous zone,
and the oceans.
Though none of the policies or goals
specifically mention "wetlands," in
trying to meet the objectives and goals
of the Act, especially attainment of
water quality suitable for the protection
and propagation of fish, shellfish, and
wildlife and recreation in and on the
water, our regulatory authority under
Section 404 often has the effect of
protecting wetlands.
As considered in both our
implementing regulations (33 CFR
320-330) and more completely in EPA's
404(b)(l) guidelines (40 CFR Fart 230),
wetlands are part of aquatic ecosystems
and can be important in renovating
and/or maintaining water quality in
adjacent rivers and streams.
Also, elimination of wetlands can
have adverse impacts on fish, shellfish,
and wildlife resources, directly through
loss of habitat and food chain
production or indirectly through loss of
wetlands important in restoring water
quality.
However, inherent in both sets of
guidelines (which are binding on our
program) is the fact that not all
wetlands are good fish and wildlife
habitats; not all wetlands provide
important food chain support; and not
ail wetlands restore and maintain water
quality.
Preservation of wetlands without such
functions does nothing to further the
objectives of the Act and can result in
unnecessary loss of socioeconomic
benefits to the public. In addition, the
Act provides for situations where other
public needs would sometimes override
the need for wetlands which do provide
important functions.
The Corps position is that, when
evaluating an application for a project
in a wetland, we should first determine
to the extent possible what functions
the wetland performs; the values of
those functions to the public; and how
the project would affect those values.
These values must be carefully weighed
against the public and private benefits
to be provided by a project. We also
evaluate potential methods for replacing
functions that would be lost if we do
permit the project. This is part of both
our public interest review and the
404(b)(l) guidelines review.
Since it was initiated in the 1960s, the
public interest review has been tested
and upheld in court. It incorporates not
only provisions of the Clean Water Act,
but the National Environmental Policy
Act, the Endangered Species Act. the
Fish and Wildlife Coordination Act. and
a host of other federal statutes which
have a bearing on the actions of federal
officials.
In order to meet all the requirements
of the many laws involved, the Corps
maintains an interdisciplinary staff of
biologists, engineers, economists,
lawyers, environmental scientists, and
professionals from other disciplines to
provide a complete, balanced analysis of
each proposal. The Corps also solicits
advice from other government agencies
with special expertise and from the
public at large. The considerations and
resulting decisions are documented and
available to the public.
As to specific concerns with
protection of wetlands, Section 404
provides for the regulation of discharges
of dredged or fill material only.
Theoretically, a property owner could
dig up a wetland and cart it away, and
the Corps would have no authority to
prevent it.
In practice, it is generally difficult to
perform such an activity without some
associated discharges of dredged or till
material, such as for access roads, etc.
However, it is possible to ditch, tile.
pump, remove vegetation from, and
impound waters on wetlands without
discharging fill or dredged material.
Normal plowing and discing are not
discharges. Pile-supported platforms are
not regulated, nor is the use ot
herbicides.
All of these activities can destroy or
seriously damage wetlands. Obviously,
this limits the effectiveness of Section
404 for those who would use it as a
strict wetland protection statute. Most
wetland losses in this country occur
outside the limits of 404.
When we do issue a permit for an
activity in a wetland, it is because there;
is a need for the project: there are no
practicable alternative sites or methods
for attaining the objectives of the project
that would have less adverse impact on
the environment; ami the project is
designed to prevent or ininimi/.e
adverse impacts to the aquatic
ecosystem, such as through replacement
of fish and wildlife habit,its.
Many times, such permits are issued
only after considerable effort on the part
of the Corps, the resource agencies
(EPA, the U.S. Fish and Wildlife
Service, the National Marine Fisheries
Service, and state fish, wildlife, and
water quality agencies), and the
applicant to work out a project design
that will meet the objectives and the
spirit of the Clean Water Act and other
relevant statutes.
Continued io next pnge
5
-------
While there have been
differences of opinion, this is
only natural when you
consider the differences in the
missions of the involved
agencies.
Harold J. O'Connor
Associate Director, Habitat Resources
U.S. Fish and Wildlife Service
As a professional wildlife biologist
and administrator for the
Department of the Interior's U.S. Fish
and Wildlife; Service, I often find myself
in discussions on the relative value of
wetlands habitat. I've found that people
are surprised by the fact that wetlands
are—in a biological sense—the most
productive wildlife habitat on an
acre-per-acre basis.
Wetlands offer vital nesting and
rearing habitat for millions of waterfowl
and waterbirds. Their shallow waters
serve as nursery areas for a tremendous
diversity of fin and shellfish species
important to both the recreational and
commercial fisherman. But aside from
their rote in the support of wildlife
populations, they have an unseen
economic value because they offer a
natural form of flood control, play a
major role in the recharging of
ground-water supplies, and help to
maintain water quality. Given these
considerations, I think of wetlands as
one of this nation's most valuable
natural resources.
Of course, the U.S. Fish and Wildlife
Service is not the only governmental
agency interested in wetlands
preservation. Others include EPA, the
National Marine Fisheries Service, and
the Army Corps of Engineers.
Central to the varying interests of these
agencies is the so-called "404 process,"
named after Section 404 of the Clean
Water Act. Through passage of this Act,
Congress sought to bring about a degree
of coordination between the various
agencies interested in wetlands-
conservation and to maice sure their
interests were considered in the process
of regulating development in wetland
areas.
The Fish and Wildlife Service also
has a very specific role that comes from
the Fish and Wildlife Coordination Act,
which provides an opportunity for the
Secretary of the Interior to comment on
404 permit applications and recommend
to the regulating agency how to
minimize or offset developmental
impacts. The Secretary of the Interior
can also recommend denial of a permit.
These responsibilities have been
delegated from the Secretary to the U.S.
Fish and Wildlife Service.
Section 404 has been and will
continue to be a key provision in this
nation's efforts to protect, conserve, and
enhance wetlands. For the most part, it
has brought about the kind of
coordination between the agencies that
Congress envisioned. While there have
been differences of opinion on various
projects, this is only natural when you
consider the differences in the missions
of the involved agencies.
One of our mechanisms for working
with the Corps of Engineers under
Section 404 is a Memorandum of
Agreement. This agreement sets out the
procedures that the two agencies will
follow during review of a permit
application. We recently negotiated a
new agreement that should help Service
biologists and Corps personnel at the
field level resolve differences before
issuance of a permit. I am optimistic
that appeals of permits or elevations to
higher administrative levels will become
relatively rare in the future.
In another significant change, the
Corps has accepted the Council of
Environmental Quality's definition of
mitigation for use in its review process.
This definition includes alternatives for
reducing wetlands destruction that
range from avoiding the environmental
loss entirely to, in some way,
compensating for a project's negative
impact. With these and other changes in
the new Memorandum of Agreement, I
think wetlands conservation efforts will
certainly be enhanced in the years to
come.
This nation has already lost over half
of the wetland acres thought to exist
during colonial times. Until recently,
wetlands were areas to drain, dredge, or
otherwise modify. They were
considered a barrier standing in the way
of progress. I think today we are
beginning to see a different attitude; one
espousing the idea that wetlands are
indeed a vital and valuable natural
resource—for people as well as
wildlife.
CORPS DIVISIONS
CORPS DISTRICTS
EPA
FISH AND Wit
It is administratively complicated in rimr out t/x? Section -JO-J pnigrum, «s
illustrated l>v (his nmp slioiviii" the different geographical jurisdictions of tin
lour federal (i.ucncies involved.
6
EPA JOURNAL
-------
Despite the Clean Water Act's
intentions, Section 404
features have caused
uncertainty in the minds of
natural resource managers
and the public.
William G. Gordon
Assistant Administrator for Fisheries
National Marine Fisheries Service
In 1780, the area we now call the
United States had an estimated 11
million acres of coastal wetlands. By
1954, the; total had dropped to about 8.2
million acres and presently only about
half of the original total remains.
Recognizing this depletion of
resources, Congress in 1972 passed what
we know today as the Clean Water Act.
This federal law has an important
feature aimed at protecting wetlands
and the fish, shellfish, and other living
resources found there in abundance.
This feature is Section 404. It asserts a
national interest in controlling disposal
of dredged and fill material (e.g., sand,
mud, grave], construction debris, etc.)
into the nation's waters, including its
wetlands—swamps, bogs, marshes, and
the like.
Valuable as living filters of
waterborne pollutants and thus helping
to protect water quality, wetlands
provide several other essential and
economically valuable services. They
buffer the impact of floods and storms,
serve as ground-water recharge sites,
and, being thickly vegetated, they help
to protect coastal shorelines and beach
areas against erosion. Coastal estuaries
and their fringing wetlands are nursery
and home to almost two-thirds of all the
fish and shellfish caught by Americans.
Last year, the nation's fishery was worth
nearly $15 billion, and a large
proportion of the clams, oysters, shrimp,
crabs, and fish taken by fishermen spent
all or part of their lives in Section 404
territory.
Despite the Clean Water Act's
intentions to upgrade and maintain the
quality of the nation's waters, its
Section 404 features have caused
uncertainty in the minds of natural
resource managers and the public. Why?
Interpreting and administering
Section 404 is a joint responsibility of
the Army Corps of Engineers and
EPA.
The Corps is the agency which
actually issues permits to dredge and
fill. But EPA has authority to deny or
restrict any permits that do not measure
up to its standards of wetlands
protection.
Operating under different federal
laws, the Corps and EPA have different,
and sometimes conflicting, goals
regarding wetland use and protection.
Other players with wetlands
responsibilities include the National
Marine Fisheries Service (NMFS) and
the U.S. Fish and Wildlife Service
(FWS), an agency within the Interior
Department. Both agencies advise the
Corps on how proposed Section 404
permits would affect fish and wildlife
resources for which they are
responsible.
The Corps, however, is not required
to accept the recommendations of these
agencies when it decides to deny or
issue a permit and enforce its special
conditions. Such conditions are often
designed to mitigate or overcome
adverse effects identified by NMFS and
FWS. Nationally, the Corps issues
thousands of individual one-of-a-kind
permits annually, and such
"conditioned" permits may not always
guarantee the kind of resource
protection sought by FWS and NMFS.
In making its decisions, the Corps
must consider several public interest
factors, the most important of which
may be whether a permittee can abide
by protective guidelines established by
EPA under Section 404. A project's
possible effects on fisheries productivity
is fundamental to these guidelines, and
in some Corps districts, the guidelines
have become almost a pass/fail standard.
As with many systems devised to
carry out multiple purposes, the Section
404 permit process has a complicated
set of procedures which are not easily
understood. This complexity may
continue to create problems, particularly
as federal actions interact with
additional and not necessarily
complementary timetables and
jurisdictions found at the state and local
levels.
From the NMFS perspective, however,
both EPA and the Corps are taking
important steps to make their rules
more effective and understandable to
the public. EPA has recently drafted
agency guidance on mitigating and
overcoming damaging effects of projects
which might be placed in wetlands. It is
also completing an identification
manual to help determine federal
wetlands jurisdiction and thus whether
a Corps permit will be required. Also,
EPA is re-examining for clarity a unique
Section 404 procedure to disallow or
limit disposal of dredged and other fill
materials into wetlands.
The Corps has streamlined its
regulatory procedures, increased
enforcement efforts, and issued new
guidance for including mitigation
conditions in permits. Most importantly,
the Corps has signed new Memoranda
of Agreement under Section 404 with
both EPA and the Interior Department.
We expect similar agreement with the
Commerce Department in the near
future and are hopeful that this
agreement will allow NMFS and the
Corps to resolve problems fully at the
regional level.
Improving interagency cooperation in
decisions affecting fisheries production
is a basic objective of the National
Marine Fisheries Service's Habitat
Conservation Policy. Thus, we are
pleased that the administration of the
Section 404 program is improving. As
enthusiastic participants in the 404
process, NMFS believes that these new
steps will help contribute to the
long-term maintenance of the nation's
fisheries and other renewable natural
resources. Q
JANUARY/FEBRUARY 1986
-------
Fulfilling the Aims
of a Wetlands Program
by Robert K. Dawson
The Secretary of the Army is
responsible under Section 404 of tin:
Clean Water Act for administering a
regulatory program which requires
permits for anyone to place dredged or
till material into waters of the United
Stales, including most wetlands, The
Secretary operates this program through
the Army Corps of Engineers.
Since its inception in 1972, this
program has been extremely difficult to
administer and has been beset by
conflict and controversy. On the one
hand, the program establishes high
standards of sensitivity to aquatic areas
and wetlands for their public values of
water purification, flood control, fish
and wildlife habitat, and other features.
The Corps of Engineers
Section 404 program was
identified us one of those most
in need of reform.
On the other hand, it recogni/.es the
need to provide for reasonable use ol
private property arid economic
development.
In 1981, the Presidential Task Force
on Regulatory Relief was formed. The
Task Force put out a general request for
information on overly burdensome,
bureaucratic regulatory programs. The
Corps of Engineers Section 404 program
was identified as one of those most in
need of reform.
Based on recommendations from an
interagency working group comprised of
Army, Justice!, KPA. Interior, Commerce,
Transportation, and Agriculture, the
Presidential Task Force issued
directives in May 1982 to reform the
(Dim-son is Assistant .SrrrrluiT <>| lli
-------
At'ritil view of Chesapeake Bay
ivetlands, beloiv the; Susquehanna River.
1984 to reflect the consent agreement.
However, some environmental groups,
apparently dissatisfied with the
agreement they had made, continued to
criticize the program implementation.
Many vague and subjective accusations
were made, but through four oversight
hearings of the Senate Subcommittee on
Environmental Pollution, no evidence
was brought forward to substantiate the
charges.
In fact, we believe that regulatory
reforms have improved environmental
quality in this program. A reasonable,
rational process promotes voluntary
compliance and allows the Corps to use
its staff in the most effective manner to
achieve statutory goals. We have found
that since regulatory reforms have been
initiated, the number of violations and
the amount of wetlands lost have been
significantly reduced.
Another example of positive effects
the reforms have on the environment
involves general permits. Applicants
will often reduce the overall scope of
their projects to meet the requirements
of a general permit with the knowledge
that they can proceed more quickly.
This reduction in scope often results in
less impact on the environment.
One thing the government owes to its
citizens is a fair hearing and a timely
decision. The Presidential Task Force
on Regulatory Relief set about to fulfill
this responsibility. Through the efforts
of the task force and the Corps
implementation of task force directives,
the permitting process has been
improved while environmental
safeguards have been maintained.
Almost four years after the reforms
were initiated, reform opponents have
failed to produce any substantive
evidence of adverse environmental
effects. The program strikes a reasonable
balance between resource use and
conservation. Implementation in this
manner has strong endorsement from
the Congress and the courts.
Despite the progress toward good
government, the program still has
features which need to be corrected, For
example, the extent of jurisdiction has
been a very difficult issue to resolve. At
my personal insistence, the Department
of Justice appealed to the Supreme
Court a decision of the Sixth Circuit
Court of Appeals in the Riverside
Bayview Homes case. The Sixth Circuit
ruling would have substantially reduced
Clean Water Act jurisdiction over
wetlands adjacent to streams, rivers, and
lakes, and essentially eliminated
jurisdiction over isolated wetlands. The
Supreme Court upheld Corps
implementation of Clean Water Act
jurisdiction over adjacent wetlands. The
court, however, specifically did not rule
on isolated wetlands. The court did
acknowledge that deni.il of a Corps
permit which results in loss of
reasonable economic: use of a property
could represent a taking for which
compensation would be due. We must
be mindful of this ruling as we proceed
with developing policy for the Corps
regulatory program.
In closing, I would note that the
remaining features of unnecessary red
tape and bureaucracy can be reduced or
eliminated without sacrificing
environmental goals or safeguards. This
is a very complex program which is
extremely difficult to administer. The
Army Corps of Engineers as an agency
and the individuals in the Corps who
are responsible for this program have
acquitted themselves extremely well as
professionals of the highest integrity.
Army will continue to provide policy
guidance which maintains all proper
environmental controls and gives the
public more certainty and timely
responses to applicants' proposals.
These are compatible objectives, and
deserve the support of all interested
parties.
I do not contend that our
administration of the program has been
perfect, and we welcome suggestions on
steps to improve our responsiveness to
environmental concerns. The more
specific the concern, the better able we
will be to take corrective action.
Wetlands and water quality are
extremely important aspects of the
overall quality of life in America, and I
pledge to continue to work to see that
the Corps of Engineers carries out the
letter and spirit of the law and
regulations, n
JANUARY/FEBRUARY 1986
-------
Doing a Better Job
of Conserving Wetlands
by John H. Chafee
Everyone talks about the need to
protect wetlands. Apparently, it is a
goal that is widely shared by the
American people and their elected
officials. Over the past decade there has
been an increasing appreciation that
wetlands are essential to our waterfowl,
our fisheries and shellfisheries, our
drinking water supplies, and our
flood-prone areas.
There also is broad recognition of the
crisis facing the nation's wetlands. The
statistics are well-known. Nearly 60
percent of the wetlands in the
coterminous 48 states have been
destroyed, more than nine million acres
from the mid-1950s to the mid-1970s
alone. Various estimates place the
current rate of destruction at somewhere
between 300,000 acres and 500,000
acres per year. Whatever the correct
estimate is, we know that the present
magnitude of destruction is producing
unacceptably high economic and
environmental costs to our nation.
Given this knowledge, it is surprising
that there is no real consensus on what
we should do to conserve these vital
resources. This lack of agreement has
jeopardized existing federal wetland
protection programs and threatens to
prevent meaningful steps from being
taken to enhance such programs in the
future. In recent years, federal wetlands
acquisition has fallen off, a victim of
rising land prices, rising budget deficits,
and generally lower Congressional
appropriations.
To do a better job of conserving our
remaining wetland resources in the
years ahead, we need to have reliable
and consistent funding for state and
federal efforts to protect particularly
valuable areas in perpetuity. We need
(Senator ( ,'|HI('I'C. H-fi.I.. is (.'fuiintiun of
the I '.s Srmili.' Subcommittee on
Environmental Pollution.)
regulatory programs that ensure full and
effective environmental scrutiny of all
activities in our wetlands that have
more than minimal impact either
individually or cumulatively. And we
need to create the incentives that will
encourage wetlands protection and
eliminate those that encourage their
destruction.
Most wetlands are privately owned.
While it is extremely important for
active federal and state acquisition
programs to continue, it is of equal or
greater importance to provide
mechanisms to maintain or restore
private wetlands. This should be done
Nearly 60 percent of the
wetlands in the coterminous
48 states have been destroyed.
through tax incentives for maintaining
wetlands on private property, for
donations of privately-owned wetlands
to government agencies or conservation
organizations, and for restoration or
creation of wetlands. We also should
consider expanding the approaches
taken in the 1982 Coastal Barrier
Resources Act which eliminate tax
incentives and other federal assistance
that encourage wetlands drainage and
conversion.
Another area where we have to do a
better job is in controlling and
mitigating wetlands losses due to
publicly or privately supported
development and wetlands filling. The
Clean Water Act's Section 404
permitting program is without question
the most important federal regulatory
mechanism for curbing wetlands
destruction. Over the past six months,
the Subcommittee on Environmental
Pollution, which I chair, has held four
oversight hearings to improve
implementation of the program. As I
made clear during those hearings, the
full and effective implementation of this
program hinges largely on EPA's
commitment.
Under Section 404(c), EPA has tin;
authority, and I believe the
responsibility, to prohibit or restrict
discharges of dredged or fill material
that would have unacceptable adverse
effects on municipal water supplies,
shellfish beds, or fishery, wildlife, or
recreational areas. Since 1982, EPA has
significantly increased its use of this
authority to protect these resources.
This new emphasis is a significant and
encouraging shift in EPA's role under
Section 404. It is a trend that I hope will
continue. Use of the 404(c) authority to
prevent or restrict harmful filling should
be facilitated. I believe, for instance,
that it would be desirable to delegate
this authority to the Regional
Administrators. Section 404(c) should be
used judiciously, but it should not be
viewed as an extraordinary action or the
equivalent of a nuclear weapon
brandished for its potential rather than
actual use.
The greater promise for wetlands
protection by EPA under Section 404(c),
however, lies in the authority to
designate significant wetland areas
before someone applies for a Section
404 permit. Rather than a decision being
made at the end of the Section 404
permitting process, our wetland and
economic development interests are best
served by early identification, where
possible, of those waters that are off
limits to filling. I am encouraged by the
work that EPA has done recently toward
advanced identification of designated
wetland sites, and 1 hope that EPA will
continue on this course and move as
quickly as possible toward significant
prospective use of its authority under
Section 404(c).
Another area where I believe EPA
needs to become more actively involved
is in making jurisdictional
EPA JOURNAL
-------
A rpfirempn/ romnHinifv , xfends im
Florida sail marsh, iii: . :,mds
(irons under development.
Jonathan S Blair, fc! 1973. Waf'ona' Geographic Society
determinations. The Attorney General
ruled in 1979 that EPA has the ultimate
authority for making such
determinations under Section 404.
Disputes between the U.S. Fish and
Wildlife Service and the Army Corps of
Engineers over whether certain waters
or activities are within the scope of the
permitting program should be resolved
by EPA.
For example, EPA should be less
reluctant to use its authority to resolve
whether certain areas of bottomland
hardwoods or pocosins are waters of the
United States under the Clean Water
Act and, therefore, subject to regulation
under Section 404. Similarly, EPA
should continue to provide the
leadership on the question of Section
404 jurisdiction over so-called
"isolated" wetlands. Whether
conversion of forested wetlands to
upland pine plantations is exempt from
Section 404 regulation as a normal
silvicultural activity is another recurring
jurisdictional question that the agency
should settle. Recent EPA initiatives
with regard to bottomland hardwoods
are a first step in assuming greater
responsibility for jurisdictional
decisions concerning that resource. Hut
there is a pressing need for EPA to
exercise its authority to determine the
scope of Section 404 over other
important classes of waters and
activities.
Yet another problem in administering
Section 404 has been the more than 50
percent reduction in the number ot
enforcement actions taken by the Corps
of Engineers against Section 404
violators since 1981. There is good
reason to believe that this reduction
reflects a drop in enforcement activity
rather than a decrease in violations. It is
/ am encouraged by the work
that EPA has done recently
toward advanced
identification of designated
wetland sites.
increasingly important that EPA
continue expanded use ot its Clean
Water Act enforcement authority against
illegal discharges of dredged or fill
material.
Finally, it is my hope thai EPA will
redouble its efforts to unsure that all
discharges of fill material, regardless of
the purpose of the discharge, are
regulated fully and properly under the
Clean Water Act and that swift
enforcement action is taken against
unpermitted discharges to pn-\vnt
adverse effects to the aquatic
environment.
If EPA stays on its present course ot
assuming a larger role in the
implementation of Section 404, then I
am confident that this led era I regulatory
program will lie strengthened. And if we
are able to combine a strong rugulalnrv
program with an effective program oi
state and federal acquisition and a
proper combination of incentives, then I
believe we will be able to ensure that
future generations of Americans will
continue to derive the many benefits
provided by wetlands. L:
JANUARY/FEBRUARY 1986
-------
Steps to Strengthen
Wetlands Acquisition
by John Breaux
To understand the value of wetlands
one need only look at the sky. This
fall, those of us who are duck hunters or
who like to observe the annual
waterfowl migrations will be seeing
fewer ducks. Mallards and pintails are
down 35 percent and 50 percent
respectively from historical levels, and
other species have declined as well. The
cause of this decline has been a
temporary loss of wetlands caused by
the five-year drought in the waterfowl
breeding areas in Canada and the
United Stales. Biologists believe, and
duck hunters hope, that better weather
conditions will bring back the habitat
and the waterfowl numbers will begin
to rise again, but this temporary loss of
habitat serves as a dramatic
demonstration of what the results would
be if we lost those wetlands
permanently.
Those of us who live near the mouth
of the Mississippi River see other effects
from tin; loss of wetlands. Each spring,
we receive the drainage of 41 percent of
the land mass of the contiguous states.
Each year, as more wetlands are drained
to get the water off farmers' fields in
Minnesota, Iowa, and Arkansas, the
spring floods get higher and higher. The
bogs, sloughs, and bottomlands are no
longer holding the; floodwaters and
releasing them over a period of months;
the water is hurried off the land, pushed
into the tributaries and into the
Mississippi. At the mouth of this great
funnel, however, there is more water
than the river can handle and the
resulting floods damage property and
endanger lives.
Of course, wetlands have other values
as well. They act as buffers to storms,
provide for recharge of underground
aquifers, and absorb pollutants.
[Congressman H remix. D-I.u.. is
(,'(imnii(in i>/ (lie !'.s Mouse Subcommittee
mi Kis/icnes mid U'ildlifc '
ond (/it; K
In the last several decades, we have
developed a variety of mechanisms to
address the loss of wetlands. The
regulatory program under Section 404 of
the Clean Water Act has been an
important, if controversial, tool for
protecting wetlands. Other proposed
mechanisms have included the so-called
"swamp buster" provisions which
would penalize farmers who drain
wetlands by denying them eligibility for
price supports and other agricultural
programs.
Proceeds from the "Duck
Stamp" have been used to
purchase more than three
million acres of wetlands and
upland waterfowl habitat.
Rather than discuss newer
mechanisms, I would like to address the
oldest and most basic tool of wetlands
protection—wetlands acquisition. More
than 50 years ago, in the midst of the
Creat Depression and the drought and
dust storms that characterized the
1930s, a group of remarkable men, led
by a political cartoonist named "Ding"
Darling, put together our nation's first
habitat conservation program and
launched the wildlife conservation
movement in this country.
The particular stimulus of their
concern was the loss of waterfowl
habitat and wetlands. Their solution
was novel and direct. Make hunters
purchase a waterfowl stamp to attach to
their state hunting licenses and use the
proceeds to buy waterfowl habitat. Ding
Darling's brush and ink drawing of a
pair of mallards was featured on the
first stamp, which sold for one dollar.
Since 1934, proceeds from the "Duck
Stamp," which now costs $7.50, have
been used to purchase more than 3
million acres of wetlands and upland
waterfowl habitat.
The areas purchased have not only
benefited hunters; they include areas
such as the Chincoteague National
Wildlife Refuge, one of the most
popular recreation areas on the Eastern
Shore of Maryland. Bird watchers,
naturalists, and millions of other
Americans visit areas purchased with
Duck Stamp funds.
If there is any problem with the
wetland acquisition program, it is that it
has not had enough success. The
U.S. Fish and Wildlife Service has
produced several estimates of how
much land must be acquired and
managed in order to preserve our
migratory waterfowl resource. Its
recently released draft Waterfowl
Management Plan calls for the
protection of 1.9 million acres of
waterfowl habitat in the United States
and an additional 3.6 million acres in
Canada.
I believe that we should do all we can
to meet these goals. Our migratory bird
resource is not only a source of
enjoyment to bird watchers and hunters,
it is also an important treaty obligation.
Perhaps more importantly, migratory
birds are a symbol of the integrity of our
environment. They need the endless
sunlight of the northern prairies in the
summer, the hardwood swamps and
coastal marshes in the winter, and the
sloughs and lakes and other resting
places in the spring and fall. How, then,
can we reach the goals of the waterfowl
plan?
First, we can expand the user fee
system. For 50 years, we have been
using various user fee systems to protect
and improve fish and wildlife habitat
and to run fish and wildlife programs.
This concept has served us well and we
should continue to use it.
12
EPA JOURNAL
-------
Second, we have to spread the
burden. Hunters are contributing their
share. They pay about $16 million per
year for Duck Stamps, approximately
$100 million per year in excise taxes on
arms and ammunition, and millions
more for state hunting licenses and
stamps. Their contributions benefit
everyone. One possible alternative is to
charge entrance fees at National Wildlife
Refuges and use these proceeds to
purchase additional areas. This would
allow more people to participate in the
protection of our natural resources.
7 recognize that the fight to
acquire wetlands will be
difficult in these days of
deficits and budget cutting.
Third, we must protect user fees from
budget cuts. A user fee is, in a sense, a
contract between the person paying the
fee and the government. I have found
that people are willing to pay their
share and contribute to support a
program. If, however, money is diverted
from the program, the contract is
broken. The public becomes rightfully
suspicious and the concept is degraded.
Fourth, we must encourage those
paying the user fees by attempting to
match their contributions. The Land and
Water Conservation Fund (LWCF)
provides for land acquisition for a
variety of purposes. This Fund,
established by Congress in 1964,
provides for acquisition of National
Park, National Forest, and National
Wildlife Refuge areas. Unfortunately,
areas eligible for acquisition with Duck
Stamp funds cannot be purchased
unless specifically authorized by
Congress. Programs supported by user
fees should not be penalized because of
their success. A combination of user
fees and LWCF funding will provide the
most return for the acquisition dollar.
VOIDAFTERJUNE30.I935
,..
U.S Fish & Wildlife Service
I recognize that the fight to acquire
wetlands will be difficult in these days
of deficits and budget cutting. We
should remember, however, that the
wetlands acquisition program began in
the darkest days of the Great
Depression. The people who acted then
have left us not only with a better
environment, but a tradition of concern
for the environment and a willingness
to do what it takes to protect our natural
resources. We can do no less for our
children and those who follow us. a
Issued in l<);t-j. the first duck slump
featured u pair of rnulJdnfs in /light.
Duck Stamp sales help protect ivetknul.s.
JANUARY/FEBRUARY 1986
13
-------
Who Cares
About Wetlands?
by Jay D. Hair
B C Mel ean, Sotf Conservation Sefvtce
Why protect wetlands? That's a
question I'm often asked. Usually I
give the .standard list of reasons why the
National Wildlife Federation works to
prevent wetlands loss. Our nation's
history has been one of trying to
eliminate wetlands. We've described
them as wastelands to be drained or
filled and put to more productive use.
Government policy has reflected this
attitude by providing various subsidies
to landowners and agencies to speed the
conversion of "useless" wetlands to
more clearly valuable drylands.
National policy was directed
primarily to elimination of wetlands
until about the mid-1900s. Large-scale
drainage projects were conceived,
funded, and implemented by the federal
and state governments. Cheap, readily
available labor made the early 1900s a
time of extensive wetlands drainage.
During the 1930s, people began to
recogni/.e the links between wetlands
loss and the disappearance of wetland
products. A special fund was created by
the establishment of a federal waterfowl
hunting permit, the "duck stamp," with
proceeds to be used to purchase
wetlands. Private conservation groups,
such as the National Wildlife
(Hair is K.vf.'riilivr Viet- Prrsiilcnt of (lie
N'dtioiml U'ildlifr
Federation, were formed for the primary
purpose of protecting wildlife habitat,
especially wetlands.
By the 1950s and the 1960s, the
wetlands acquisition programs of federal
and state agencies were well-established
and the broad values of wetlands were
becoming clear. In the 1970s, the values
of wetlands became widely recognized
and documented bv the scientific
Luckily for us, government
policies are beginning to
change to favor retention of
wetlands.
community, and wetlands received
governmental protection at the federal
level and in some states. In spite of
these changes for the better, the loss of
wetlands remains a problem today.
Study after study has indicated that
wetlands are being lost for a variety of
reasons, almost all of which are
man-caused.
Altogether, about 56 percent of the
original wetland acreage of the 48
contiguous states has been lost. The
most comprehensive and scientific
study of wetlands to date was
completed by the U.S. Fish and Wildlife
Service in late 1982. This study shows
average loss of wetlands in the United
States from the 1950s to the 1970s to be
458,000 acres per year. By the 1970s,
only 99 million acres of this valuable
resource remained.
Only 8.2 million acres of these
remaining wetlands are under federal or
state protection. The majority of the
wetlands in the nation are on private
lands, while most of the values of
wetlands accrue to the public at large.
The problem is that the privately
controlled resource provides public
values.
Even in areas known to be productive
of waterfowl or shellfish and other
products, we previously provided heavy
incentives for conversion. Today we
still encourage general development
through various tax incentives, and
price supports and other subsidies for
agricultural products.
These incentives create enormous
pressures to drain and clear wetlands.
As a result the United States is losing
over 450,000 acres of wetlands every
year. That's an area well over half the
size of Rhode Island. In fact, over half of
the country's original 200 million acres
of wetlands have already been
destroyed. Put another way, we have
drained, filled, or otherwise destroyed
wetlands that would cover an area equal
to four times the size of Ohio.
i !
EPA JOURNAL
-------
A marsh nrcu on a \ drill Dakota farm.
preserved us ivildlite huhilut lor ducks
ami musknils. The 1985 Farm Mill slop-.
subsidies to farmers ivho eliminate
iveflanifs to c rente more cropland.
And what have we lost as a result?
My reasoning continues with the
explanation that all of these drained
wetlands once contributed to our
economy and the quality of our lives.
They produced ducks, shellfish, frogs,
cranberries, and wild rice. They filtered
nutrients out of polluted waters and
buffered storm impacts in coastal areas.
They held runoff in place, which helped
to prevent downstream flooding, and
they allowed the recharge of
groundwater. All of these services are
tangible and all are valid arguments for
maintaining our wetlands base. And all
are gone when wetlands are destroyed.
Those are the reasons I usually give
when someone asks me why we should
protect wetlands.
But my most cherished reason is
selfish. It's because I like wetlands.
That may not seem like much of a
reason, but it's one of the best.
Economic arguments can be countered
by "Okay, so I'll pay you for the value
of the services and we'll build our hotel
there anyway." There is no counter for
Visitors (o (he Virginia section nl
A,s.sate
-------
Racing Against Time
in the Rainwater Basin
by Felice F. Furst
The Rainwater Basin of Nebraska is
located within the central flyway for
migratory birds. Waterfowl from the
central United States, the Gulf Coast,
Mexico, and South America converge on
the Rainwater Basin each spring on
their way north to their breeding
grounds. Shore and song birds and the
endangered whooping crane also use
these wetlands when migrating.
Recently, epidemics of fowl cholera
have swept through waterfowl
populations in the Rainwater Basin.
Because of the nature of this disease,
most researchers now believe the drastic
decreases in wetland acreage and
resulting overcrowded conditions have
compounded the problem. In nearly 10
years, 200,000 ducks and geese have
died from cholera in this region. In 1980
alone, five percent of the
mid-continental population of
white-fronted geese died from the
disease. Because wetlands in the
Rainwater Basin are reduced now to the
critical level, water and weather
conditions determine how many
waterfowl die.
Soil survey maps from early in this
century show that Nebraska's Rainwater
Basin contained nearly 4,000 separate
wetland areas. Small-to-large individual
basins formed a patchwork pattern over
parts of 17 counties in south central
Nebraska, a total area of nearly 94,000
acres. Collectively, all these areas
attractive to waterfowl are known as the
Rainwater Basin.
The Rainwater Basin continues to
decrease in size, shrinking to only 685
basins by the late 1960s and now down
to approximately 375 basins. The
remaining wetlands are within a land
area of 20,000 acres. Nine of every 10
(Fursl is Project (,'ooniiiuilor for the
Hm'mvdier Hnsin project advisory
committee.)
Nine of every 10 basins were
destroyed, and only half of the
remaining wetlands are
protected by state or federal
wildlife agencies.
basins were destroyed by draining or
filling, and only half of the remaining
wetlands are protected by state or
federal wildlife agencies.
While the U.S. Fish and Wildlife
Service and Nebraska's Game and Parks
Commission consider wetland
protection a high priority, government
funds are limited for land acquisition
and conservation easements.
Recognizing that the wetlands are
disappearing steadily, EPA Region 7
Administrator Morris Kay decided in
1984 that the region needed to take a
stronger stand against wetland
destruction.
The Clean Water Act under Section
404 requires permits for discharges of
dredged or fill material into waters of
the United States. Under one provision
of EPA's 404 regulations, EPA works
jointly with the Army Corps of
Engineers to identify wetland sites and
designate them either generally suitable
or unsuitable for filling. The goal is to
notify landowners ahead of time
whether discharges into these identified
sites are likely or not to comply with
the environmental requirements of
Section 404.
The first challenge of this advanced
identification process is to correctly
inventory the wetlands. This becomes
complicated because isolated wetlands
are extremely dynamic. One year a
basin may fill with water; the next, it
may have none. Its boundaries change
shape yearly. Variations occur largely
because of changes in weather
conditions. These basins are
characterized by clay particles that
make up subsoils to a thickness of six
inches to six feet. The layers of clay
hardpan trap runoff water and rainwater
and make the characteristics of each
basin wholly dependent on rainfall.
To inventory the remaining Rainwater
Basin wetlands, EPA proposes use of
the National Wetland Inventory (NWI)
maps being compiled by the U.S. Fish
and Wildlife Service. These
state-of-the-art maps, based on 1981
aerial photography, will classify the
wetlands into three categories:
• Semi-permanent—wet most of the
year;
• Seasonal—wet through the middle of
the growing season; and
• Temporary—wet only in the spring.
The maps will be used as the
identification and designation lists for
the process. Sampling of 20 to 30 basins
next spring and summer by the Army
Corps of Engineers, EPA, and the U.S.
Fish and Wildlife Service will provide
additional baseline data on waterfowl
use, vegetation, soils, and hydrology
and will aid in classification efforts.
Although the listing and designation
process is a rather straightforward
procedure, simply publishing a list of
wetland sites does little toward
preventing further destruction of the
basin wetlands. Because draining
without a discharge of dredged or fill
material is not regulated by the Clean
Water Act, appealing to conscience and
raising awareness could be the most
effective way to head off additional loss
Travelling in an airboat through the
marshes of the Rainwater Basin, an
officer of the Nebraska Game and Parks
Commission removes dead birds,
victims of fowl cholera. The birds will
be burned to prevent spread of the
disease.
16
EPA JOURNAL
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A Nebraska economist has
pointed out that, many times,
intensive farming of wetlands
is unprofitable.
of wetlands. EPA has gone a step further
and begun a community relations effort
to encourage local cooperation.
As-Morris Kay said, "Retaining the
wetlands in the Rainwater Basin is an
important goal for the landowners and
the local community. Everyone needs to
be involved in the process." A full-scale
community program seeks to inform the
public of the project; raise awareness of
the problems created when wetlands are
lost; and stress the economic value of
these wetlands and the importance of
retaining them as a matter of
community pride.
A federal and state interagency team
is working together on the project. This
federal team includes EPA, the Corps of
Engineers, the U.S. Fish and Wildlife
Service, and the Soil Conservation
Service of the U.S. Department of
Agriculture. State groups include the
Nebraska Game and Parks Commission,
Department of Environmental Control.
and Natural Resources Commission.
Independent members are Ducks
Unlimited and the Wildlife Management
Institute.
Open communication with local
people and private interest groups is
best achieved through established
contacts, such as natural resources
boards in the Rainwater Basin.
Elected officials and the media have
been briefed on our plans for the
Rainwater Basin wetlands. Private
interest groups such as the Committee
to Save Our Wetlands and the National
Audubon Society have been contacted
for their assistance.
Public workshops have tentatively
been planned for early this winter when
farming is at a minimum, These
workshops are designed to tell the
public what we're doing, to ask for
suggestions, and to stress the values of
these wetlands and the clanger in
destroying the basins. There are other
values, not based upon migratory
waterfowl use. These basins are needed
to absorb and store rainwater runoff to
help control flooding. Also, the
wetlands provide habitat for commercial
fur-bearing animals, such as muskrat,
and for many of the game species,
including pheasant and deer.
A Nebraska economist has pointed
out that many times intensive (.inning
of wetlands is unprofitable.
Uncontrolled flooding, tax easements,
and current market conditions are only
some of the underlying reasons. The
appeal to landowners not to tarm
marginal lands can be very persuasive.
As time runs out for Nebraska's
Rainwater Basin, the trend can be
reversed by farmers, property owners,
private interest groups, and
governmental units working together to
preserve and restore this vital area, u
JANUARY. FEBRUARY 1986
' /
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Working to Save
Pennsylvania Peat Bogs
by Jane Offringa
and Karen Wolper
As thi! chill of winter fades, and the
first spring flowers pop up through
the still-cold earth, eager gardeners head
for nearby drugstores, supermarkets, and
nurseries to buy large sacks of peat
moss to help their gardens grow.
Municipal highway departments and
commercial greenhouses buy peat by the
truckload.
Precisely because peat is so plentiful,
few people realize that it is an
irreplaceable natural resource that has
to be: mined like minerals. Region 3 of
EPA is moving to protect this valuable
resource in the Pocono Mountain area of
northeastern Pennsylvania and
throughout the region where limited
peat deposits provide a unique habitat
for plants and animals.
Peat conies from the dead remains of
mosses, reeds, sedges, shrubs, and trees
which accumulated mainly due; to the
effects of glaciers. Peatlands an;
classified as bogs or fens because they
are constantly saturated with water.
Conditions that made it possible for
peatlands to form can be traced back to
the time when (he, last glacier scoured
its way south from Canada. Great blocks
of ice broke away and were driven into
the earth. Huge loads of rock and gravel
were deposited in the glacial ice,
closing off valleys and trapping streams
to form shallow, ice-cold lakes fed only
by rainwater.
Living things that survived in the
frigid, sterile waters settled to the
bottom when they died. Over many
thousands of years, dead vegetation
continued to accumulate until the lakes
were transformed into bog forests.
In the bog.1: of the Pocono Mountains,
peat deposits are formed at the
extremely slow rate of approximately
one inch per 100 years. Pennsylvania
peatlands, usually no larger than 100
acres, are commemly only about 25 acres
in si/.e, and generally range from one to
•III I eel deep. Half or less of the
Pennsylvania peatlamls are deep enough
to be worth mining.
|Of/im.'.',
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Wetlands and Oil:
Coexistence on the Tundra
by James M. Posey
An AfiC'O drilling and production pad
(if Prudhoe Hay. Alcisku. Pipelines and
utility corridor* are generallr sited
aboveground and routed lor minimal
impact on (he ivetlunds environment.
fPosey is (i manager in tli<; K.xternal
Affairs Department of AHt,'O Alaska,
Inc., (i sulj.sidiarv of Atlantic
Hidifield (,'mnpunv. He has
been involved in (lie ivetland
permitting, kind management, and
regulatory reform effort in Alaska for
the past live years.)
Petroleum development and an
unspoiled arctic environment can
co-exist.
This is the clear conclusion of the
Atlantic Richfield Company (ARCO),
based on more than 15 years' experience
developing the vast oil fields of the
North Slope of Alaska.
Industry has taken a massive quantity
of oil from the North Slope—more than
four billion barrels. But apart from
pipeline and oil-field facilities, the
arctic environment remains preserved in
a virtually pristine state.
Development and preservation: how
have these two seemingly conflicting
goals been achieved?
50 Million Acres
One of the main things to remember
about the North Slope is its size: a huge
50 million acres extending from the
Brooks Range to the Arctic Ocean.
Tundra and shallow lakes and ponds
cover the surface of the Slope.
Permafrost, or frozen ground, lies
beneath the surface. Most of these 50
million acres—about 75 percent—could
be classified as wetlands. Despite
apparent similarities, North Slope
We have succeeded in arctic
Alaska because we have
taken the trouble to find out
about this environment.
wetlands are fundamentally different
from those in temperate areas. The
permafrost and the flat and irregular
profile of the North Slope land limits
the flow of water on the surface and to
ground water.
Nevertheless, the vast expanse of the
North Slope wetlands is extremely
valuable as a wildlife habitat.
In 1968, ARCO discovered the huge
Prudhoe Bay oil field on the North
Slope. At that time, most of the major
federal environmental laws had not yet
been enacted, and very little was known
about the North Slope's environment
and wildlife.
ARCO asked arctic naturalist Angus
Gavin to do three things: to determine
the nature and extent of the
environmental resources of the region,
JANUARY/FEBRUARY 1986
19
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Tiic .Arctic Fox is OIK: of the m-
(ibinu/unt species of wildlife m
-------
The Amerikanskis
Are Coming
by Fitzhugh Green
At Xfoseoiv meeting, FPA Administrator
Lee Thomas, left, receives gift of
miniature samovar from Dr. Yuriiv
IzraeJ, Thomas' counterpart in the
USSR.
(Green is KPA's Associate Administrator
for Internationa] Activities.)
Sixteen Americans led by EPA
Administrator Lee M. Thomas
landed at Moscow airport at dusk in the
cold of November 12, 1985. On hand to
greet the Thomas party were
Academician Yuriiv I/.rael, chief of the
USSR State Committee for
Hydrometeorology and Control of
Natural Environment, and several
members of his delegation.
Izrael and his colleagues led the
Americans into a small welcoming room
where coffee and joviality were offered.
Clearly the Soviets were happy to see
their guests. Six years had passed since
the last high level meeting of the
US/USSR joint Committee on
Cooperation in the Field of
Environmental Protection.
Clearly the Soviets were
happy to see their guests.
Early next morning, Izrael and
Thomas and their supporting casts of
scientists and environmental managers
plunged into a round of plenary
conferences and private huddles which
led to their approving 38 projects on
November 18, the day before the
summit at Geneva. In ,\ sense,
Co-Chairmen Izrael and Thomas of the
US/USSR committee could be described
as bellwethers for the successful
conference of Messrs. Gorbachev and
Reagan. Indeed, their accord was cited
in the communique that was issued at
Geneva the following week.
Major new projects include a study of
the causes and effects of underground
water pollution, collaborative
development of technology for
managing waste and lowering waste
buildup, research on improved handling
of toxic substances, and a schedule of
education and training in environmental
protection.
JANUARY/FEBRUARY 1986
21
-------
Other items to be studied are the
effect of acid rain on forest ecosystems,
impacts of anthropogenic pollution, and
global ocean monitoring.
The November conclave in the USSR
also triggered discussions of non-agenda
items like diversion of major rivers in
the northern USSR; nuclear winter;
verification of underground atomic tests:
and threats to the atmospheric ozone
layer, as well as Sen. Claiborne Pell's
proposed international convention to
require transboundary environmental
impact statements.
A key element of this meeting was
that the Co-Chairmen themselves were
once again taking charge a* the policy
level. Their re-emergence as leaders
gave fresh significance to the work by-
scientists and engineers faithfully
carried out during the past six years.
The joint chairmen showed their
determination to maintain personal
involvement by agreeing to meet again
in the US this fall.
Their work together caps 1 3 years of
mostly fruitful cooperation between the
two nations. The pact that launched
these activities was signed by President
Nixon and Chairman Podgorny in 1972
in Moscow. More than 2,000 scientists,
engineers, and environmental managers
have exchanged visits to the US and the
Soviet Union in carrying out some 200
activities since then.
The environment and allied topics
have proved to be a sacred cow, of sorts,
in US-USSR relations. The Cuban
missile crisis, lor example, did not
prevent a high-seas rendezvous between
three Soviet and three American
oceanographic vessels in the South
Atlantic for an amicable exchange oi
scientific information, at the very time
of the; naval quarantine a few hundred
miles to the north. Neither did six years
of political chill following the invasion
of Afghanistan freeze the US-USSR
environment program.
While in the Soviet Union lust
November, the visiting Americans
toured facilities of the Soviet
environmental protection system.
The Cuban missile crisis did
not prevent a high-seas
rendezvous between three
Soviet and three American
vessels for an amicable
exchange of scientific
information.
Among these were the vast sewage
treatment plant in Moscow, the
enormous automatic solid waste
disposal plant in Leningrad, as well as a
hydromet institute in Leningrad.
In fact, the friendly hosts kept the
Americans busy and/or entertained
throughout their stay. Dr. Israel's own
solicitous attention to Thomas'
entourage never flagged. He even made
it a point to see them off at the airport
on their departure. His attitude bodes
well for the future.
Up to now, the results of the 13-year
US-USSR agreement are many and
positive. For example, the USSR's
environmental legislation has been
patterned on the US National
Environmental Policy Act. A 1981
article in the Journal of the USSR
Academy of Sciences praised the US
practice of environmental impact
statements.
Other articles in the Soviet press have
lauded the US national park system.
Actually, the Soviets have created their
own "recreational zones" along the lines
of American parks.
The EPA logo now gleams in
government offices and laboratories
from Leningrad to Tashkent. Americans
touring the USSR may be surprised to
see EPA's blue, white and green symbol
on lapels and desks, or hanging from
walls. Each one represents one or more
encounters under the environment
agreement that have opened closed
doors.
In 1984, American scientists, after
participating in a six-week Bering Sea
cruise on a Soviet oceanographic: ship,
disembarked at Dutch Harbor. The
500 inhabitants of this small Aleutian
town turned out in force to greet the
voyagers. They prepared a homecoming
feast that featured 150 hot pizzas: one of
the more ambitious take-out orders in
history.
American participants in environment
agreement-sponsored programs have
found their personal lives broadened
and improved, but none more so than
has George Baughman. On his own
initiative this enthusiastic EPA scientist
studied Russian for an hour a day until
he could converse easily with his Soviet
counterparts and read their reports. His
project—on water quality
modeling—was judged one of the best,
thanks in part to his hard-won language
skill.
One dramatic fallout of the
environment agreement began in 1979
when an air pollution specialist from
the University of Washington toiied
several weeks with his Soviet
counterparts in the USSR. There he met
a lady Lithuanian scientist. Their
professional relationship took a personal
turn, and they married. In 1980, she
emigrated to the US, and in 1983 their
firstborn arrived—a true child of
international cooperation. In keeping
with the trouble-free history of the
agreement, these two scientists went to
show their infant son to his Soviet
grandparents and returned to their home
in Seattle without difficulty.
Even the Soviet media seemed to
favor the Committee Meeting last
November. Representatives of
TASS, Pravda, /zvestiya, and Radio
Moscow were on hand to interview
Thomas and Izrael individually between
sessions. Roth on those occasions and at
a joint press conference the questions
were courteous and apolitical.
Their views seem to coincide with a
comment by Thomas on the significance
of the extensive cooperative program
slated for 1986: "It gives us Americans a
fine opportunity to share research on
vital environmental matters.
Additionally, it is a chance for these
Soviet and American experts to
stimulate broader understanding
between our two countries." n
EPA JOURNAL
-------
An Indian Policy
at EPA
by Jack Lewis
Ktting Little Oivl. right, and By ion Had
Bear, ivuter supply operatois (it the
Croiv Reservation's surface tvater
treatment plant near Billings. Mont.,
discuss ivafer turbidity witn Hubert
Hayes of the Indian Health Service, Car
left. The session is part of n training
program co-sponsored by the Service
and EPA.
EPA is the first federal agency to
formulate cm Indian Policy in
accordance with President Reagan's
Federal Indian Policy. In the first of two
articles in this section, Jack Lewis,
Assistant Editor of the Journal, explains
the substance of EPA's policy and the
impact it will have on the
environmental quality of U.S. Indian
reservations. In the second article. A.
David Lester, the Executive Director of
the Council of Energy Resource Tribes,
gives an Indian perspective on
environmental protection.
Few people realize how vast
America's Indian territory is. Across
the United States there are 278 Indian
reservations covering an expanse of land
as big as New England, New Jersey, and
Maryland combined. Approximately
700,000 people—only half of them
Indian—live on those reservations.
The environmental problems of the
Indian reservations—like many of their
other problems—have tended to take a
back seat to those of the 50 states. EPA's
legislative authorities are principally
built on federal-state relationships, so
there has been a tendency for Indian
problems to fall between the cracks.
That is why we can be particularly
proud of the fact that EPA is the first
agency of the federal government to
formulate specific plans for
implementing the President's Indian
Policy.
This policy recognizes the
principle of tribal self-government that
was written into the Constitution, but
long ignored in practice. After decades
of abuse, the concept was reformulated
in the Indian Reorganization Act of
1934, but it failed to gain real
momentum until the 1960s. In 1970,
President Nixon issued a
self-determination policy that reaffirmed
the importance of tribal sovereignty.
President Reagan's Federal Indian
Policy resembles older policies in two
respects: it accords to tribal
governments the same degree of
sovereignty enjoyed by the states, and it
proposes that the federal government
should deal with the tribes on a
government-to-government basis. Those
two tenets are well established.
President Reagan's Indian Policy
extends them by making the most
explicit statement at the Presidential
level of the importance of moving
Indians toward actual self-government.
That goal requires a concerted
approach to strengthening both the
economies and the governments of the
tribes. The new Federal Indian Policy
recognizes that tribal self-government is
meaningless without economic
prosperity. To this end, the President
formed a Presidential Commission on
Indian Reservation Economies, which
has identified ways of strengthening the
economic: life of the reservations
through changes in federal law, private
sector involvement, and other means.
The Federal Indian Policy also calls
for bolstering tribal governments so that
they can move from dependency on
federal funds and expertise into actual
decision-making. To this end, the
President has recommended training to
help tribes develop managerial skills.
He has also recommended action to
clarify the legal privileges of tribal
governments, especially in terms of tax
status.
On November 8, 19«4, HP A
announced its own "Policy for the
Administration of Environmental
Programs on Indian Reservations." EPA
was the first—and, to date, remains the
only—agency of the federal government
that has formulated its own version of
the President's Federal Indian Policy.
EPA stressed that the "keynote" of the
agency's Indian policy, like the
President's, would be "to give special
consideration to tribal interests in
making agency policy and to ensure the
close involvement of tribal governments
JANUARY. FEBRUARY 1986
23
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In front of d suivnn'U, sprinkh'r-
ivuffM- to prevent fungus .yroivlh on cu!
trees. This suivmilJ in Onuik, U'osli.. is
operated by the Coh'ille Confederated
Tribes.
in making decisions and managing
environment programs affecting
reservation lands." In practice, this
would mean continuing the agency's
ongoing efforts at protecting health and
environmental quality on Indian
reservations while gradually increasing
Indian control over such programs.
Fiscal year 1985 was jusl beginning as
EPA's Indian Policy was announced.
The $5.7 million EPA expended on
Indian projects during the year
represented both an ongoing base of
activities plus an increment of newly
committed funds. Those projects were
funded largely on an ad hoc basis by
various EPA program offices (Air,
Water, Pesticides, Solid Waste). EPA's
Office of Federal Activities (OFA),
headed by Allan Hirsch, has been
assigned responsibility for monitoring
their progress. OFA reports to EPA's
Assistant Administrator for External
Affairs, whose new incumbent is
Jennifer Joy Manson.
EPA realized from the outset that
tribal control over environmental
protection would differ fundamentally
from state control. After all, the
environmental problems found on
Indian reservations are far less complex
than those that plague America's urban
and industrial areas. Some reservations
are beginning to feel the encroachment
of pollution problems, especially those
associated with mining and energy
development, but most still enjoy a
relatively pristine natural environment,
marred only by isolated problems, such
as faulty sewage treatment or waste
disposal practices.
EPA has no desire to impose elaborate
environmental programs on tribes that
do not need them. The agency realizes
that grinding poverty and massive
unemployment are emergencies
distracting tribal leaders from
environmental protection. But EPA is
finding that even tribes with the most
pressing economic constraints take a
keen interest in tackling whatever
environmental problems face their
reservations. Reverence for nature is so
deeply ingrained in Indian culture that
EPA does not have to propagandize for
environmental protection. The interest
is there but, all too frequently, the
needed skills and resources are not.
EPA, for its part, is also running up
against frustrating limitations. Almost
all of EPA's statutes lack language
empowering the agency to deal with
Indian tribes in a way analogous to its
dealings with the states. Congress is
now considering amendments to three
of EPA's most important statutes—the
Clean Water Act, the Safe Drinking
Water Act, and the Superfund law.
These amendments will enable the
agency to develop and fund on Indian
reservations programs similar to those
in the states—and eventually to delegate
to the tribes authority over the water
programs.
Progress is also being made along a
number of different fronts. EPA's
regional offices are increasing outreach
and technical assistance efforts on
Indian reservations. The agency is also
gathering much-needed information
about the nature of the problems on the
reservations. With Americans for Indian
Opportunity, EPA is sponsoring a
national survey of Indian tribes. The
results of this survey should be
available next June. In addition, EPA's
Superfund office has completed an
initial survey of hazardous waste
problems on 25 reservations,
preparatory to a broader national
survey.
EPA is also forging ahead with four
pilot projects that will serve as
prototypes to guide the agency in
implementing its version of the Federal
Indian Policy. Problems encountered in
the pilot projects—and solutions
formulated—will be valuable as the
agency charts its course in the months
and years ahead. Project funding comes
from EPA, with additional resources
furnished by the tribes themselves.
The pilot projects now in progress
are:
• Region 5: A project on the
Menominee Indian Reservation in
northern Wisconsin for developing solid
and hazardous waste management
programs as well as surface and
ground-water protection.
The Menominee Reservation consists
of 233,000 heavily wooded acres in
northern Wisconsin. Unlike most other
tribes which were forcibly removed
from their native lands in the
nineteenth century, the Menominee
Tribe has been in continuous possession
of these forests since time immemorial.
With a population of 6,500, the tribe
does not generate a great deal of waste.
The Menominee now have four open
dumps for solid waste, recently
inspected with the help of the
Wisconsin Department of Natural
Resources. The tribe plans to tighten
requirements for future landfills—and if
funds can be found, to upgrade those
that exist.
When it comes to hazardous waste,
the Menominee have decided to be even
more stringent than the Resource
Conservation and Recovery Act requires
them to be. Their draft tribal regulation
would altogether prohibit the disposal
of hazardous waste on the Menominee
Reservation.
The reservation has few sources of
hazardous waste other than a sawmill
and several gas stations. Menominee
leaders hope to have outside collectors
drive in to pick up their hazardous
waste. Commercial collectors could be
put off, however, if the tribe goes ahead
with a proposed "user fee" on
transporters of hazardous waste who use
Menominee roads.
In 1986, the tribe hopes to draft water
quality standards for surface and ground
water. Of particular concern are
inadequate sewage treatment and
leaking underground storage tanks.
However, additional funding may be
required to complete this aspect of the
pilot project, which is now running
behind schedule.
• Region 8: A project on the Fort
Berthold, N.D., reservation of the Three
Affiliated Tribes (Hidatsa, Mandan, and
Arikara) for the purpose of developing
an integrated environmental protection
program addressing problems in all
media (air, water, pesticides, and solid
waste).
24
EPA JOURNAL
-------
The Three Affiliated Tribes live on
980,000 acres of prairie flatlands in
western North Dakota. Aside from light
industry and farm ranching, the
reservation offers few employment
opportunities to its 7,000 residents.
Unemployment hovers at a staggering 80
percent.
Oil, natural gas, and coal have
attracted companies to the region. These
have generated leasing revenue, a few
jobs for Indians, and many pollution
problems. Air pollution is a particular
concern. Hydrogen sulfide, for instance,
emanates from many gas wells on the
reservation.
During fiscal year 1985, the Affiliated
Tribes received grant funds from EPA in
the areas of air and pesticides. The air
grant was used to set up two new
monitoring stations, which have already
gathered a great deal of valuable
meteorological data. The pesticides
funds went toward formulating the first
Indian-drafted pesticides code that
appears likely to receive EPA approval.
Progress was also made in the areas of
water and solid waste. Some of the Fort
Berthold pesticides money was used to
monitor ground-water contamination
from 700 improperly discarded
pesticide containers, which the Tribes
have removed. In addition, an EPA
grant to the Council on Energy Resource
Tribes has helped the Fort Berthold
Tribes to develop a management plan
for solid waste. This grant funded
remedial action at open burning dumps
as well as an inventory of the Tribes'
solid waste facilities.
• Region 9: A project for developing a
tribal implementation program to ensure
visibility standards on the Navajo
Reservation that spreads into New
Mexico, Arizona, Utah, and Colorado.
Ensuring visibility standards is only
the most ambitious aspect of this
multi-faceted air project. By striving for
the highest level of air quality, this
project will also ensure that EPA's
Prevention of Significant Deterioration
(PSD) standards are met.
Concern for air quality on the Navajo
reservation is certainly warranted. With
165,000 residents, it ranks as the most
populous of American Indian
reservations. These people live on a
16.000,000 acre reservation, which is
the site of ambitious coal-mining
operations. In addition, a variety of
power plants—many serving distant
cities—are generating pollution both on
and off the reservation.
The EPA-Navajo pilot project will
gather baseline air quality data and
compile an emissions inventory of all
pollution sources. The compilation of
this data will begin next spring with the
opening of the first of several
monitoring stations. Data from these
stations will be shared with interested
state as well as federal agencies.
The objective is to develop an
approved Tribal Implementation Plan.
This will establish an ongoing air
quality management program for the
tribal government.
• Region 10: A project for
implementing a Water Quality
Management Plan on the reservation of
the Confederated Colville Tribes in the
State of Washington.
The Colville Tribes live on 1,400,000
acres in north central Washington. The
JANUARY/FEBRUARY 1986
25
-------
mountainous terrain of the reservation
fosters a logging economy, but more
than 50 percent of the tribe is
unemployed.
Water Quality Management Plans are
required under Section 208 of the Clean
Water Act. The Colville Confederated
Tribes are the first in the nation to
develop the capability to implement
their own plan.
The Colville Tribes met their financial
commitment to the project, but found
that staffing cutbacks stemming from a
downturn in the timber industry left
them with insufficient personnel to
meet the project schedule.
Supplementary funds from the
Department of the Interior's Bureau of
Indian Affairs are expected to become
available early in 1986. These should
permit the Colville Pilot Project to wrap
up late in 1986.
Substantial progress has already been
made. In January 1985, the Colville
Business Council approved an
important slate of tribal ordinances as
components of its Water Quality
Management Plan. These are very
similar to those already adopted by the
State of Washington, and therefore
should foster harmonious tribal-state
relations.
An Administrative Procedures
Act—also passed in January 1985—has
committed the Colville Tribes to fixed
channels of appeal and judicial review
when any of their Water Quality
Management Plan decisions are
contested. This has allayed the anxiety
of non-Indians on the Colville
Reservation who feared that their views
would not receive a fair hearing.
According to Deborah Gates of EPA
Region 10, the Colville Administrative
Procedures Act is so innovative that it
"can serve as a model for other Tribes in
developing environmental programs."
In August 1985, the Colville Tribes
signed a Cooperative Agreement with
the State of Washington. A comparable
agreement between the Colville Tribes
and EPA is nearing completion. These
agreements mark important milestones
in a federal/state/tribal relationship that
has in the past been marred by
litigation.
These steps toward developing the
capability of four American Indian
tribes to deal with their environmental
problems represent progress. But they
are still a far cry from integrated
environmental programs on 278
reservations nationwide. For the
foreseeable future, EPA will continue to
play a very active role in seeing that
environmental standards are met on the
nation's Indian reservations.
EPA cannot meet such responsibilities
without the vigorous support of all the
agency's various program offices. A
good example of the kind of support the
programs can give is a training and
technical assistance program sponsored
by the Office of Drinking Water (ODW).
In August 1985, ODW awarded
$140,000 to the Foundation of California
State University at Sacramento to train
44 Indian water supply officers from
seven reservations in Montana,
Wyoming, Arizona, and New Mexico.
Over the coming year, three different
methods of training—correspondence
lessons, classroom demonstration, and
on-site demonstration—will be used to
prepare these officers for the Water
Supply Certification Tests in their
various states.
Face-to-face contact is vital to the
success of any project requiring
cooperation with Indian tribes. That is
why the field work of EPA's regional
offices is so crucial. Most EPA regions
have reservations, but Indian-related
activity is most intense in Regions 5, 6,
8,9, and 10.
The administrative tangles can get
very complex. Take the Navajo Nation,
for example. Every decision the Navajo
tribe makes first must pass through a
complex series of legislative and
administrative decisions, just at the
tribal level. Then the encroaching
prerogatives of no fewer than four states
must be considered: Arizona, New
Mexico, Utah, and Colorado. Finally,
the Navajo Division of Resources has to
deal with three different EPA regions:
Region 6 in Dallas, Region 8 in Denver,
and Region 9 in San Francisco.
From this crazy quilt of conflicting
cultures and jurisdictions, orderly
progress does somehow emerge. It takes
a lot of haggling and fine-tuning, and
requires a never-ending interchange of
ideas, skills, and resources. But no one
on the Indian reservations of the United
States would question the value of local
control over local issues, and its
superiority to the paternalistic and
sometimes heartless policies of the past.
The prospects of making the Reagan
Administration's Indian Policy a success
seem particularly promising in the area
of environmental protection. America's
Indians bring to that mission a
commitment to the sanctity of nature
that is fully shared by EPA's staff and
by EPA Administrator Lee M. Thomas.
The transfer of control to tribal
governments will be gradual, both
because of the current atmosphere of
fiscal stringency and the highly
technical nature of EPA's programs. But
the agency has a good start and can
point to areas of real achievement. On
this foundation, EPA will continue
building in the years ahead, with the
ever-increasing participation of
America's tribal governments. Q
26
EPA JOURNAL
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The Environment from
an Indian Perspective
by A. David Lester
A. David
Non-Indians feel that they "own" the
land and can "use" it like any other
resource. American Indians think
differently. We are truly people of the
land. It is we who belong to the land in
a spiritual sense much more than it
belongs to us. in any material sense.
Our lands contain the dust of every
Indian generation that has preceded us
since the dawn of time. And it will hold
the dust of all the future generations of
our tribes who will enjoy the natural
legacy and the cultural values that
spring from our land.
We know that all life, including our
own, is composed of three natural
elements: land, water, and air. The
harmony of these three elements is
crucial to the cultural, spiritual,
aesthetic, physical, and economic health
of the tribes that live on America's
reservations.
(In addition to serving as Kxectifive
Director of the Council of h'nergy
Hesnjrr.r Tribes, Lester has also been
Commissioner of the Administration for
Native Americans in flu: I'.S.
Department o| Hea/lli ami Human
Services and President of the (.'m'ted
Indian Development Associalion.J
Non-Indians are just now awakening
to the importance of a harmonious
relationship with nature. In the past 20
years, the environmental movement has
made great strides in non-Indian
communities. What few people stop to
realize is that Indians have been
advocating environmentalist!! for time
out of mind. We are the original
environmentalists.
It is therefore no surprise that we
welcome the precedent-setting EPA
Indian Policy. A commitment to
protecting natural resources is not
something we have to learn from EPA.
We strongly favor tribal self-government
in this area, and we want to make it a
reality as soon as possible.
We realize there will be technical and
administrative hurdles to clear as the
tribes assume a central role in
implementing EPA's delegated federal
programs and activities. But we also
realize that this is the most simple and
effective way for tribes to ensure that
natural resources are protected and/or
enhanced according to tribal desires.
We have learned that letting others set
our priorities just does not work. Ever
since valuable resources were
discovered on the reservations, the
tribes have been faced with very
difficult decisions concerning how best
to balance the development of natural
resources with the protection of our
environment.
In the past, tribes relied upon
industry or the federal government to
make provisions for protecting precious
environmental resources. In many cases,
the result was improper care or no care
at all.
This practice of letting others attend
to tribal resource decisions led to two
predictable results. First, some tribes
developed a "wait and see" attitude.
They were paralyzed by the prospect of
potential environmental degradation
along with the technical complexity
inherent in very large
resource-development projects. Essential
decisions were simply put on hold.
The second consequence was the
development of jurisdictional confusion.
It became unclear who had authority
over environmental issues on Indian
reservations. This, in turn, caused
uncertainty among industry, the tribes.
and the federal government concerning
the regulatory requirements applicable
to reservation projects. This
jurisdictional void made it very difficult
for proponents of energy development
projects to properly plan proposed work
on Indian lands.
There have been many developers
eyeing Indian resources in recent years.
The irony of the situation is not lost on
the tribes themselves. We remember
how undesirable our lands were thought
to be when the boundaries of most U.S.
reservations were drawn in the
nineteenth century.
America's 278 reservations are lands
that were "reserved" as homelands for
Indian tribes as they ceded, often under
military duress, large tracts of valuable
land in exchange for guaranteed security
of their people, their reserved land, and
their right to continue as self-governed
political and cultural entities. A
common misunderstanding is that
Indian lands of today represent gifts
from the federal government to Indians.
The historical truth is the reverse:
America's Indian reservations are the
land the Indians did not give to the
federal government.
At the time most designations of
reservation lands took place, 150 years
ago, the lands reserved to Indians were
perceived, for the most part, as the least
desirable real estate in the United
States: large sections of what
cartographers then called the "Great
American Desert." Conventional
wisdom in the nineteenth century held
that Indians would become the
"Vanishing Americans," slowly dying
out on their "desert" reservations.
The twentieth century has held some
JANUARY/FEBRUARY 1986
27
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Pollution proMi'ms hiiii'l; existed ivlirn
nrfist (Jrorgc (,'
-------
Cleanup
Strides at
a Gold Mine
by David Wann
As the largest gold mine in the
western hemisphere,
Homestake did have the
financial flexibility to do what
hadio be done.
(J.)(ivid VVunn is n ivrilrr ivitJi fh<; tJ/'licr
O/External Affairs m KP.A's He.gion ti in
Dcnvur. Colo.)
Wild Bill Hickock and Calamity Jane
would have been amazed!
If those legendary figures of the Old
West were alive today in Deadwood,
S.D., the}' would no doubt be surprised
to see the waters of Whitewood Creek
running clear.
For over a century, the stream has
been polluted by municipal wastes from
the Black Hills towns of Deadwood and
Lead, and by cyanide and arsenic from
the Homestake gold mine and its
smaller counterparts.
Even more amazing is the fact that
cleanup of the creek has been
accomplished in large part by the tiniest
of all "varmints," cyanide-eating
bacteria.
Until recently, not even the oldest of
old-timers in this part of South Dakota
could remember when the creek was
anything more than an open sewer. But
in recent months, a few have caught
their limit of trout. South Dakota's
Department of Water and Natural
Resources (DWNR) has found a
population explosion of brown, brook.
and rainbow trout. What's more, the
natural color of the creek is also
returning to what it must have been
more than 110 years ago, before gold
was discovered by members of General
Custer's 1874 expedition.
At one point in the creek's history, an
attorney testified that its waters were
"enriched" like the Nile by silt from the
mines above, but historian Watson
Parker saw it differently:
"The pollution produced by the
Homestake—and indeed by all the
mines—first stained the creek waters
red from the cement ores and placers,
then grey with the slimes from the
mills, and the reek of cyanide hung over
the valleys of Deadwood and the
Whitewood like a curse."
The creek had come to be viewed by
state and federal biologists as "the
disgrace of the whole region." But what
had been tolerable since 1881 became!
illegal with the passage of the federal
Clean Water Act amendments of 1972.
That law, based on updated scientific
information and an increased awareness
of the environment's impact on public
health, required the state of South
Dakota to establish water quality-
standards for the creek and required the
Homestake Mining Company to obtain a
federally enforceable discharge permit.
The state defined Whitewood Creek as
a "marginal cold-water fishery," This
was the clean water goal which people
such as South Dakota DWNR's Duaiu:
Murphy believed the creek should meet.
It didn't happen quickly.
First came a protracted modern
version of the frontier days shootout.
Homestake went to court, challenging
South Dakota's cold-water fishery
determination. The case dragged on
until both sides could see thai a lot of
energy was being wasted: times had
changed and the law with them. By
1977, Homestake was required to meet
federal and state standards or else pav
hundreds of thousands of dollars in
fines.
Homestake agreed to build a huge
tailings pond, behind a dam 280 feet
high and 1220 feet wide. Although the
completed pond won commendations
from the President's Council on
Environmental Quality and the
Environmental Industry Council. EPA
insisted that a waste treatment plant
would be needed in order to resurrect
the creek. Homestake complied, but first
attempts to chemically remove the
pollutants failed. Total cyanide in the
water, as defined by EPA, actually
increased. Try as it would. Homestake
couldn't meet the required .standards.
Meanwhile, the litigation continued
and Whitewood Creek continued its
polluted flow. By 1979. both sides
began to redefine the problem.
According to EPA's Rob U'alline: "From
Homestake's perspective, the litigation
was not successfully providing a basis
for long-term corporate planning and it
wasn't helping its corporate image. And
the company's potential civil liability
penalty was growing each day. From the
EPA and state perspectives, the
litigation wasn't producing tangible
environmental results and was just
delaying efforts to engineer an eilective
water treatment system."
At this point, the
company-government interaction began
centering on technical rather than legal
issues. Because treatment of mine
wastes containing cyanide is different
from treating cyanide by itself, a ue\v
approach was needed.
The agencies and individuals
involved began to pool information.
And, as the largest gold mine in the
western hemisphere, Homestake did
have the financial flexibility to do what
had to be done. There was still a lot of
gold to be mined in the area. The
company decided it was in its best
interest to accept responsibility for the
development of an adequate treatment
process.
A three-party consent decree
permitted Homestake to extend the 1070
deadline for the treatment plant, and
JANUARY/FEBRUARY 1986
-------
c Mining (.'ornpuny's
tri'iitint'iit plant in S
Dakota, ivh ere f)(irten'
-------
Update
A review of recent major EPA activities and developments in the pollution control program areas.
AIR
Response Planning
The agency has released to
the states additional
information and guidance
materials in its program to
help states and communities
respond to emergencies from
the release of toxic: chemicals
into the air.
Included in the new
materials is a list of 402
acutely toxic chemicals,
which, if released
accidentally in sufficient
quantities, could produce
immediate (acute) adverse
health effects to nearby
populations unless
appropriate emergency
response is taken,
Auto Tampering
EPA announced that it is
seeking a $262,500 civil
penalty for violations of the
Clean Air Act from the Atlas
Processing Refinery and A&B
Muffler Shops, both located
in Louisiana.
The agency alleges that
catalytic converters and other
emissions control devices
were removed from 60
company-owned vehicles
used at the refinery, and that
the A&B Muffler Shops were
responsible for illegally
removing at least 45 of the
converters at the request of
Atlas.
Removal of catalytic
converters can cause
increases in emissions of
hydrocarbons, carbon
monoxide, and nitrogen
oxides.
Chrysler Recall
Chrysler Corporation is
recalling about 348,000 1981
model yeaT Dodge and
Plymouth vehicles that are
exceeding the federal
hydrocarbon and carbon
monoxide emission levels.
The cars affected are the
Dodge Omni, 024, and Aries,
and Plymouth Horizon, TC3,
and Reliant models equipped
with 2.2 liter engines.
California vehicles are not
included in the recall.
Chrysler agreed to recall
the cars after EPA tests
determined they exceeded
the clean air tailpipe
standards.
EPA said an air bleed
assembly which will alter the
air/fuel mixture burned by
the engine will be added to
the recalled vehicles to
reduce the excessive exhaust
emissions.
HAZARDOUS WASTE
Land Disposal Compliance
Preliminary EPA figures
indicate that 492 hazardous
waste land disposal facilities
operating under interim
status have certified
compliance with
ground-water monitoring and
financial responsibility
requirements, and have
applied for final operating
permits.
Approximately 1,600 land
disposal facilities were
authorized to operate under
interim status prior to
November 8, 1985. Congress,
under the 1984 amendments
to the Resource Conservation
and Recovery Act (RCRA),
required those facilities that
intended to continue
operations after November 8
to certify compliance. Those
who could not comply were
required to stop receiving
hazardous waste on
November 9, and must close
in accordance with RCRA.
Non-certifying facilities
which fail to stop operations
or submit closure plans are
subject to civil or criminal
enforcement actions,
including penalties.
Approximately 45 interim
status facilities could not
fully certify because they
were unable to obtain
liability insurance, one of the
financial responsibility
requirements.
PESTICIDES
Farmworker Protection
Standards
EPA will propose revisions of
its farmworker protection
standards based on direct
negotiations with those
substantially affected by the
standards.
EPA's 25-member advisory
committee—with members
from farmworker
organizations, user and
grower groups, pesticide
producers and applicators,
and state and federal
agencies—will negotiate the
following key issues: training
and monitoring, re-entry
intervals, notification,
protective equipment, and
enforcement.
The farmworker protection
standard is the second
pesticide project being
explored through face-to-face
negotiations among interested
parties. The first, the
proposed revision the
regulation permitting
emergency uses of pesticides,
was completed and proposed
earlier this year.
Final Pesticide Process
The agency is announcing
final revisions in rules for
initiating and conducting
"special reviews" of pesticide
products which may pose
unreasonable risks to public
health and the environment.
Special review (previously
called the "rebuttable
presumption against
registration" or RPAR) of
pesticides is a risk/benefit
determination process that
begins when the agency
receives "validated tests or
other significant evidence
raising prudent concerns of
unreasonable risks to man or
the environment." The
special review process is
used by the agency in
determining whether to
initiate action to cancel,
deny, or reclassify
registration of a pesticide.
The major changes to the
special review process will:
• Focus agency resources on
pesticides which have
significant potential for
causing unreasonable effects.
• Expand opportunities for
public participation.
• Formally change the name
of RPAR to special review.
The public participation
provisions of both the special
review and registration
standards programs are
elements of a September
1984 settlement agreement
between EPA and the Natural
Resources Defense Council.
TOXICS
Dioxin Testing
EPA is proposing a rule
requiring manufacturers to
analyze 34 commercial
chemicals for contamination
by certain dioxins and
furans, called halogenated
dibenzo-p-dioxins (HDDs)
and dibenzofurans (HDFs).
Companies must report to
EPA if certain levels are
found.
These types of dioxins and
furans may cause a persistent
skin rash called chloracne in
humans, as well as liver
dysfunction, elevated blood
cholesterol, nervousness, and
other health problems. Tests
on laboratory animals
indicate that exposure to
these substances may result
in a rare form of cancer
called soft tissue sarcoma.
If industry officials find
these contaminants above
certain concentrations in a
chemical, they must report
production, process, use,
exposure, and disposal
information to EPA as well as
any relevant unpublished
health and safety information
and records of alleged
adverse health and
environmental effects. These
data will be used by the
agency in assessing the need
for future regulation.
This action is one of
several that have been
initiated under EPA's
two-year-old, $10 million
dioxin investigation program.
Proposed Asbestos Phaseout
As the Journal went to press,
EPA proposed to ban the
manufacture, importation,
and processing of asbestos in
certain consumer products,
and to phase out its use in
other products. Any product
that is not banned would be
labeled as containing
asbestos.
Acting under the Toxic
Substances Control Act,
EPA plans to immediately
prohibit asbestos in five of
the products in which it is
most used: roofing felts,
flooring felts (and felt-backed
sheet flooring), vinyl-asbestos
floor tile, asbestos cement
pipe and fittings, and
clothing.
JANUARY/FEBRUARY 1986
31
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In addition, all remaining
domestic mining and
importation of asbestos
would be phased out over a
ten-year period. The ten-year
phaseout affecting other
products would be
accomplished via a permit
system, under which EPA
would allocate permission to
mine or import a specific
volume of asbestos per year.
WATER
Appointments
Research Burn Permit
EPA has made a tentative
decision to issue a research
burn permit to Chemical
Waste Management of Oak
Brook, 111., to incinerate
chemical wastes at sea.
The research burn would
provide more data on the
technical and operational
issues related to ocean
incineration, as well as
respond to the interest and
questions about this
technology from the scientific
community and the general
public.
The permit would
authorize incineration
research activities at the
proposed North Atlantic
incineration site, located 140
nautical miles east of
Delaware Bay.
The proposed incineration
will have minimal impact
upon the marine
environment, according to
EPA. The agency said
burning PCB wastes at the
destruction efficiency of
99.9999 percent will release a
maximum of .013 gallons of
waste residue per day to the
environment.
The permit would be
effective for six months and
would authorize the
applicant to implement a
research program designed by
EVA.. Liquid wastes
containing 10 to 30 percent
PCBs could be incinerated
under terms of the permit. A
maximum of 708,958 gallons
of PCB waste would be
incinerated. This amount of
waste will allow EPA and the
applicant to conduct an
extensive set of tests using a
single incinerator over a
19-day period. D
/. Craig Poff«r
J. Craig Potter has been nominated to be
Assistant Administrator for EPA's Office
of Air and Radiation. The position
includes responsibility for setting and
enforcing standards for national ambient
air quality, hazardous air pollutants,
new source performance standards, and
those for the prevention of significant
deterioration of air quality. Potter will
also administer standards for mobile
sources and establish and enforce
national radiation standards.
From 1981 until July of this year.
Potter served with the Department of
Interior, first as a special assistant to the
Assistant Secretary for Fish and Wildlife
and Parks, then for two years as the
Principal Deputy Assistant Secretary, and
finally as the Acting Assistant Secretary
for Fish and Wildlife and Parks. Since
July, he has been the Acting Executive
Secretary of the National Fish and
Wildlife Foundation.
Potter is a graduate of the University
of Illinois and the University of
Wyoming College of Law. Potter has
served on the staff of the Senate Post
Office and Civil Service Committee, the
Senate Government Affairs Committee,
and from January 1978 to March 1981
with the Senate Appropriations
Committee.
Linda Wilson Reed
Linda Wilson Reed has been appointed
Director of EPA's Office of Public
Affairs. She will be responsible for the
agency's press office, publications,
audiovisual services, and community
involvement program.
Reed comes to EPA with extensive
experience in management.
From 1981 to 1985, she held public
affairs policy positions with the
Department of Education, the Science
and Education Administration at the
Department of Agriculture, the Federal
Highway Administration, and the Office
of Federal Contract Compliance at the
Department of Labor.
Reed received a B.A. in distributive
education in 1977 from the University
of South Carolina and is active; in the
University's alumni association, D
32
EPA JOURNAL
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A straw hat shades (lie eyes of ti
contented fisherman on ci Mississippi
bayou.
US
NCtl- -)NOM
LIBRARY
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