U.S. Environmental Protection Agency
Region IV
ANALYSIS OF THE SECTION 404 PROGRAM
Charles R. Jeter
Regional Administrator
February 8, 1985
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U.S. Environmental Protection Agency
Region IV
ANALYSIS OF THE SECTION 404 PROGRAM
Charles R. Jeter
Regional Administrator
February 8, 1985
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TABLE OF CONTENTS
1. Summary of the Legislative and Judicial History of
the Section 404 Program
A. Pre-404 Permitting Concerns 1-1
B. Enactment of Section 404 1-2
C. Judicial Delineation of Section 404 Jurisdiction 1-4
D. The Clean Water Act of 1977 1-6
E. Corps Regulatory Reform 1-8
F. Current Legal Question: The Taking Issue 1-10
2. Importance of Wetland Regulation
A. Historic Wetland Losses 2-1
B. Continuing Wetland Losses 2-2
C. Limitations of the Section 404 Program 2-3
D. Functions of Wetlands 2-4
3. EPA's Role in the Section 404 Permit Program
A. Development of 404(b) Guidelines 3-1
B. Application of 404(b) Guidelines 3-2
C. Jurisdiction of the 404 Program 3-5
D. State 404 Programs 3-7
E. Enforcement 3-7
F. Use of 404(c) 3-9
4. Corps' Role in the Section 404 Permit Program
A. Public Notices 4-1
B. Public Interest Review 4-1
C. Jurisdictional Determination 4-2
D. Regulated Activities 4-2
E. Permit Volume 4-2
F. Corps Projects 4-3
5. Corps/EPA Interaction
A. Resolution of Conflicts 5-1
B. Memorandum of Agreement - 404.(q) 5-1
C. Section 404(c) 5-2
6. Role of Other Federal Agencies in Permitting
A. U.S. Fish and Wildlife Service 6-1
1. Permit Review... 6-1
2. Mitigation Policy 6-1
B. National Marine Fisheries Service 6-2
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7. 404(c) Actions
A. General 7-1
B. Specific Cases 7-2
1. Nunisport . 7-2
2. Norden 7-3
3. Reeves 7-4
4. Maybank 7-4
8. Role of States in Permitting
A. State General Permits 8-1
B. Coastal Area Management Act 8-2
C. Coastal Zone Management Act 8-3
D. Special Management Areas 8-4
E. 401 Certification 8-4
F. State Dredge and Fill Program 8-5
9. State Assumption of the Section 404 Program 9-1
10. Relationship of Section 404 with other EPA Programs
A. NEPA 10-1
B. NPDES 10-2
C. Superfund 10-3
11. The Role of Conservation Organizations in the
Section 404 Program
A. Representatives of Local Issues 11-1
B. Shaping National Policy 11-1
C. Suit over Revised Corps Regulations 11-2
12. Problem Areas
A. Policy Issues * 12-1
1. Compliance with Section 404(b)(1) Guidelines 12-1
2. Solid Waste Discharge into Waters of the
United States 12-2
3. Mitigation Policy 12-3
4. Wetlands Protection Bill 12-6
B. Resource Issues 12-7
1. Bottomland Hardwood Wetlands 12-7
2. Lack of Section 404 Regulation of Civil
Works Projects 12-10
3. Lack of Suitable Disposal Sites for Dredged
Material 12-11
4. Impacts of Surface Mining in Wetlands 12-13
5. Rockplowing 12-14
6. Cumulative Loss of Wetlands Through Filling
Activities 12-15
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13. Regional Program Summary
A. General Program Evaluation 13-2
B. External Coordination 13-3
C. Internal Coordination 13-3
D. Bottomland Hardwoods 13-4
E. 404(c) Implementation 13-5
F. Long Range Goals 13-6
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A SUMMARY OF THE LEGISLATIVE AND JUDICIAL HISTORY
OF THE SECTION 404 PROGRAM
A. Pre-404 Permitting Concerns
Although federal regulation of activities affecting the
nation's waters began in the nineteenth century, its
sole purpose up until the last decade was to protect
navigability. Acting under authority of the commerce
clause of the Constitution, Congress early sought to
insure unobstructed navigation on interstate waters by
enacting the Rivers and Harbors Appropriation Act of
1899 (RHA), now codified at 33 U.S.C. §401-413 (1976).
Under Section 10 of the RHA, projects involving excava-
tion or filling activities in navigable waters must be
approved by the Corps of Engineers.
Itself historically the sponsor of many such projects,
the Corps has long limited "navigable water" jurisdiction
under Section 10 to the mean high water mark (MHW) in
tidal areas and to the ordinary high water mark (OHW)
in freshwater areas. Although these jurisdictional
boundaries (taken from common law demarcations of public
and private ownership) have been adequate for the
purpose of protecting navigability, they have provided
scant protection to wetland areas, which usually are
partly or wholly above MHW/OHW. Navigability, however,
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remained the sole concern of the Section 10 program
until 1968, when Corps regulations were revised to
provide that permitting would include consideration of
environmental and other "public interest" factors in
addition to navigability. This new Corps policy (applied
only to areas below MHW/OHW) was approved by the Fifth
Circuit Court of Appeals, which held federal regulation
of estuarine wetlands based on ecological concerns to
be authorized by the commerce clause and within the
scope of the RHA [Zabel v. Tabb, 430 F.2d 199 (5th
Cir. 1970)].
B. Enactment of Section 404
Section 404 was enacted as part of Public Law 92-500,
the Federal Water Pollution Control Act Amendments of
1972. Initially, Section 404 had only three sub-
sections: 404(a), authorizing the Corps to issue
permits for discharges of dredged or fill material into
navigable waters at specified disposal sites; 404(b),
providing that sites must be specified through application
of EPA guidelines, unless an economic impact on navigation
or anchorage exists; and 404(c), authorizing EPA to
restrict or prohibit disposal in any area (including
one previously specified for disposal) if EPA determines
that discharges of dredged or fill materials there
would have an unacceptable adverse effect on municipal
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water supplies, shellfish beds and fishery areas,
wildlife, or recreational areas. By Section 301(a) of
this statute, unpermitted discharges of dredged or fill
material were made unlawful, and the Administrator was
granted enforcement powers under Section 309.
While the legislative history bearing on Section 404's
enactment is not extensive, it is clear that the
division of responsibility for the program between EPA
and the Corps resulted from a Conference Committee
compromise between the Senate bill (which designated
EPA as the permit-issuing authority) and the House
version (which designated the Corps). This legislative
history also sheds some light on Congress* intent in
defining "navigable waters" as "the waters of the United
States, including the territorial seas" in Section
502(7) of the statute. The House-Senate Conference
Report expresses the intent that "navigable waters"
should be "given the broadest possible constitutional
interpretation unencumbered by Agency interpretations
which have been made...". In presenting the Conference
version to the House, one of the conferees explained:
...the Conference bill defined the term
'navigable waters' broadly for water quality
purposes. It means 'all the waters of the
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United States' in a geographic sense. It
does not mean 'navigable waters of the
United States' in the technical sense as we
sometimes see in some laws...
...Thus, this new definition clearly
encompasses all water bodies, including
main streams and their tributaries, for
water quality purposes. No longer are
the old, narrow definitions of navigability,
as determined by the Corps of Engineers,
going to govern matters covered by this bill.
[118 Congressional Record 33756-57 (1972)].
During the first years following 404*s enactment, how-
ever, the Corps continued to regard the geographical
limits of the new program's jurisdiction as identical
to those "navigable water" limits of MHW/OHW governing
permitting under the RHA. Under this jurisdictional
interpretation, opposed by EPA and others, the majority
of the nation's wetlands remained unregulated.
C. Judicial Delineation of Section 404 Jurisdiction
The geographic reach of Section 404 was ultimately
determined by the courts. Among the earliest cases
addressing the question of whether the traditional
definition of "navigable waters" limits 404 permitting
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authority was United States v. Holland, [373 F. Supp.
665 (M.D. Fla. 1974)], a case initiated by EPA to halt
the filling of some Florida mangrove wetlands above
MHW. The Holland court analyzed the legislative intent
of the Federal Water Pollution Control Act Amendments
of 1972 (FWPCA), contrasting its objective "to restore
and maintain the chemical, physical and biological
integrity of the Nation's waters" [Section 101(a)] with
the RHA's purpose of keeping navigable waters free of
physical impediments. After noting Congressional
sensitivity to the value of the coastal wetlands, the
Court cited scientific evidence that the effects of
pollution are not confined to the traditional boundaries
of navigability and concluded that the MHW boundary
line has no rational connection to the aquatic ecosystems
which the FWPCA was intended to protect. Therefore,
the Court upheld EPA's assertion that 404 jurisdiction
extended into wetlands above MHW.
Shortly after the Holland decision, however, the Corps
published regulations retaining the MHW/OHW limits on
404 jurisdiction, [39 Fed. Reg. 12115, 12119 (April 3,
1974)]. These regulatory restrictions on jurisdiction
were promptly challanged in court by a private
environmental organization, and in N.R.D.C. v. Calloway,
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[392 F. Supp. 685 (D.D.C. 1975)], the Corps was ordered
to adopt regulations asserting full 404 jurisdication.
In compliance with this order, the Corps issued regula-
tions, after consultation with EPA, which phased in 404
regulatory authority over wetlands adjacent to tradi-
tionally "navigable waters" ("Phase I Waters," effective
in 1975); tributaries, lakes greater than five acres,
and their adjacent wetlands ("Phase II Waters," effective
in 1976); and other waters up to headwaters of 5 cfs
("Phase III Waters," effective in 1977) [40 Fed. Reg.
31310 et seq. (July 25, 1975)]. This broad assertion
of 404 geographical jurisdiction is substantially the
same as that now in effect.
D. The Clean Water Act of 1977
Seventeen new sub-sections were added to Section 404 by
Public Law 95-217, the Clean Water Act of 1977 (CWA).
Among the more significant of these CWA additions are
provisions establishing procedures for transferring
permitting authority to the states over all waters
(except "navigable" waters below MHW/OHW and "Phase I"
wetlands adjacent thereto), at the option of the states
and upon the Administrator's approval [402(g)—(1)];
provisions exempting discharges related to certain
activities such as "normal farming, silviculture, and
ranching" from 404 regulation and authorizing Corps
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issuance of general permits for any category of activities
having minimal adverse effects on the environment
[404(e) & (f)]; and a requirement for agreements between
the Corps and other agencies, including EPA, directed
toward minimizing duplication, paperwork and delays in
permit issuance [404(q)]•
Perhaps the most significant aspect of these CWA
amendments, however, is the fact that they made no
substantive changes in the three original sub-sections
of 404. In particular, Congress took no action to
restrict the judicially-determined breadth of jurisdiction
over "waters of the United States". This issue was
extensively debated, however, and a bill eliminating
404 jurisdiction,over "Phase II" and "Phase III" waters,
which include as much as 85 per cent of the nation's
wetlands, passed in the house and was defeated in the
Sepate by only a narrow margin. The fact that Congress
gave plenary consideration in CWA debates to jurisdiction
without changing it provides a strong legal argument
that 404's current jurisdictional breadth is consistent
with the intent of Congress.
Post-CWA judicial decisions addressing the scope of
activities exempted from regulation under Section 404(f)
have tended to limit the exemptions strictly.
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In Avoyelles Sportsmen's League, Inc. v. Marsh. [715 F.
2d 897 (5th Cir. 1983)], the Fifth Circuit Court of
Appeals upheld a lower court determination that the
"normal" farming activities exemption is limited to
"established" farming, and does not preclude 404 regulation
of activities converting wetlands to farmland. The
Avoyelles court upheld the Corps/EPA interpretation of
the current regulatory definition of "wetlands":
those areas that are inundated or saturated by
surface or ground water at a frequency and duration
sufficient to support, and that under normal circum-
stances do support, a prevalence of vegetation
typically adapted for life in saturated soil conditions.
Wetlands generally include swamps, marshes, bogs,
and similar areas [33 C.F.R. §323.2(c)(1982)].
This court also acknowledged Attorney General
Civiletti's September 5, 1979, opinion that EPA has
ultimate administrative authority for determining
both 404 geographical jurisdiction and the limits of
404(f) exemptions.
E. Corps Regulatory Reform
The most recent administrative action having the
potential to eliminate large portions of the nation's
wetlands from the 404 permitting process was the Corps'
issuance of 1982 amendments to its 404 regulations [47
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Fed. Reg. 31794 et seq. (July 22, 1982)]. In response
to suggestions by the Reagan Administration's Task
Force on Regulatory Relief, the 1982 regulations, among
other things, greatly expanded the coverage of general
permits under 404(e). Among the 27 general nationwide
permits issued in 1982 were two permits generally
allowing discharges into particular categories of waters
[47 Fed. Reg. 31821 (July 22, 1982)]. The "headwaters
general permit" authorized discharges into nontidal
rivers, streams, and their lakes and impoundments,
including adjacent wetlands, located above headwaters.
The "isolated waters general permit" authorized dis-
charges into other nontidal waters not part of a surface
tributary system. These permits eliminated 10-acre
size limitations contained in similar general permits
included in the 1977 Corps regulations, and were
estimated to exempt several millions of acres of wetlands
from individual permitting.
These and other 1982 regulatory revisions were challenged
in a lawsuit brought by fifteen private environmental
organizations, (National Wildlife Federation v. Marsh
[Civ. Action 82-3632, filed Dec. 22, 1982 (D.C. Dist.)].
The parties elected to settle this suit on terms
generally favorable to the environmentalists' position
in February 1984. As part of this settlement, the Corps
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adopted new regulations [49 Fed. Reg. 39478 et. seq.
(October 5, 1984)] limiting the "headwaters" and
"isolated waters" general permits to discharges not
causing "the loss or substantial adverse modification
of 10 acres or more of waters of the United States,
including wetlands". Among other concessions flowing
from the settlement, the Corps abandoned its earlier
position that EPA's 404(b)(1) "guidelines" were merely
advisory, and amended its regulations to provide that no
404 permit would be issued without compliance with these
"guidelines". [33 C.F.R. 320.4(a)(1)(1984)]
F. Current Legal Question: The "Taking" Issue
As the reach of federal 404 jurisdiction over "waters
of the United States" has expanded beyond the MHW/OHW
lines of traditional "navigability", regulation has
extended to areas beyond the historical boundaries of
the public's "navigable servitude" into areas long held
to be subject to private ownership. In addition to the
political opposition this expansion has generated, a
substantial legal issue has arisen over whether such
404 regulation constitutes a "taking" of private
property, unconstitutional under the Fifth Amendment
unless the government pays the landowner.
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Thus far, leading cases addressing the issue have
held that 404 permit denials for particular wetland
development projects did not constitute a "taking"
sufficient to require compensation [e.g., Deltona v.
United States, 657 F. 2d 1184 (Ct. Claims, 1981)].
In Deltona, the court found it to be significant that
the complaining corporation owned some upland property
and had earlier been permitted to fill some of its
wetlands. The court ruled that its property, taken as
a whole retained "economically viable use", notwith-
standing the fact that the 404 permit was denied for
one portion of the property. In another Florida case
now pending before the Court of Claims, Florida Rock
Industries, Inc. v. United States [No. 266-821], the
judge has orally indicated that he intends to rule that
denial of a 404 permit for the mining of limerock on
Everglades wetlands acquired solely for that purpose
constitutes a compensible "taking." When such a written
decision is finally entered, Justice Department attorneys
have indicated that they intend to appeal it. Ultimately,
this issue of "taking" will no doubt have to be decided
by the Supreme Court.
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2. IMPORTANCE OF WETLAND REGULATION
A. Historic Wetland Losses
Approximately 215 million acres of wetlands existed in the
lower 48 states at the time of the Nation's settlement. In
the mid-1970's, only 99 million acres remained/ leaving just
46% of our original wetland acreage (Fig. 2-1). These wetlands
consisted of 93.7 million acres of palustrine wetlands (non-tidal
marsh, swamp, bog, fen, and prairie) and 5.2 million acres of
estuarine wetlands. (Fig. 2-2).
Between the mid-1950's and mid-1970's, approximately 11 million
acres of wetlands were lost and approximately 2 million acres
of wetlands were created. The net loss of 9 million acres
during this period of rapid development equates to an area
about twice the size of New Jersey (Fig. 2-3).
Annual wetland losses averaged 458,000 acres during this period,
including 440,000 acres of palustrine losses and 18,000 acres
of estuarine wetland losses. Agricultural development was
responsible for 87% of these recent national wetland losses.
Urban development and other development caused approximately 8%
and 5% of the losses respectively. Major causes of wetland
losses and degradation are given in Table 1.
(
The most extensive wetland losses occurrred in Louisiana,
Mississippi, Arkansas, North Carolina, North Dakota, South
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Dakota, Nebraska, Florida and Texas. Greatest losses of for-
ested wetlands occurred in the lower Mississippi Valley through
conversion of bottomland hardwood forests to farmland. Shrub
wetlands were the major type destroyed in North Carolina where
pocosin wetlands were converted to cropland or pine plantations,
or mined for peat. Inland marsh drainage for agricultural use
was severe in the Prairie Pothole Region of the Dakotas and
Minnesota, Nebraska's Sandhills and Rainwater Basin, and the
Florida Everglades.
Between the mid-1950's and mid-1970's, estuarine wetland losses
were heaviest in the Gulf states, Louisiana, Florida and Texas.
Most of Louisiana's coastal marsh losses were attributed to
submergence by coastal waters. In other areas, urban development
was the major cause of coastal wetland loss. Dredge and fill
residential development in coastal areas was most significant
in Florida, Texas, New Jersey, New York and California.
B. Continuing Wetland Losses
In the Southeast, agricultural drainage is continuing in large
tracts, especially in the Lower Mississippi Delta, Florida, and
along the coastal plain of North Carolina. Bottomlands are
being clearcut for timber, and then cleared and drained for
crop production, chiefly soybeans. Pocosin wetlands are
similarly being converted, as well as being mined for peat.
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Many inland wetlands are being converted to pine plantations
throughout the Southeast. Phosphate mining in Florida and
North Carolina is destroying considerable wetland acreage.
New reclamation rules require an attempt to replace these
communities, but do not guarantee success. While coastal
wetland destruction has slowed in most states with the passage
of wetland regulations, many enforcement problems continue. A
summary of recent losses is given in Table 2.
While wetland losses and degradation continue throughout the
country, there are several areas where wetlands are in greatest
jeopardy. These include: (1) estuarine wetlands of the coastal
zone, (2) Louisiana's coastal marshes, (3) Chesapeake Bay's
submerged aquatic beds, (4) South Florida's palustrine wetlands,
(5) Prairie potholes, (6) wetlands of Nebraska's Sandhills
and Rainwater Basin, (7) forested wetlands of the Lower
Mississippi Alluvial Plain, (8) North Carolina pocosins, and
(9) western riparian wetlands. Most of these regions are under
intense pressure from agricultural interests, while the effect
of urbanization and industrial development is more localized.
C. Limitations of the Section 404 Program
The major effects of the 404 program are the reduction of
wetland conversions through permit denials, modification of
permits to reduce the number of wetland acres affected, and con-
ditions attached to permits that lessen the impact of activities
on wetlands.
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Only a small percentage of Section 10/404 permit applications
are denied: 291 of 10,718 applications received nationwide in
1981 (2.7%). A much greater percentage (31% nationwide) are
modified in the permit process.
According to Corps statistics for 1980 and 1981, its districts
(excluding Alaska) processed permits for filling approximately
100,000 wetland acres per year. The Corps authorized projects
resulting in approximately 50,000 acres of wetland destruction,
a 50% reduction achieved through modifications, withdrawals and
denials of 404 permits.
D. Functions of Wetlands
Although wetlands were historically used for hunting, trapping
and fishing, they were largely considered wastelands which
could be improved through "reclamation projects," such as
drainage for agriculture and filling for industrial and res-
idential sites. Today, it is widely recognized that wetlands
in their natural state provide a wealth of values to society
(Table 3). Wetland benefits can be divided into three basic
categories: (1) fish and wildlife values, (2) environmental
quality values, and (3) socio-economic values. A detailed
discussion of all these values is given in Tiner (1984).
Corps of Engineers Regulations (July 22, 1982) define wetland
functions as follows:
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Wetlands considered to perform functions important to the
public interest include:
(i) Wetlands which serve significant natural biological
functions, including food chain production, general
habitat, and nesting, spawning, rearing and resting
sites for aquatic or land species;
(ii) Wetlands set aside for study of the aquatic environ-
ment or as sanctuaries or refuges;
(iii) Wetlands the destruction or alteration of which would
affect detrimentally natural drainage characteristics,
sedimentation patterns, salinity distribution, flushing
characteristics, current patterns, or other environmen-
tal characteristics;
(iv) Wetlands which are significant in shielding other areas
from wave action, erosion, or storm damage. Such wet-
lands are often associated with barrier beaches,
islands, reefs and bars;
(v) Wetlands which serve as valuable storage areas for storm
and flood waters;
(vi) Wetlands which are prime natural recharge areas. Prime
recharge areas are locations where surface and ground
water are directly interconnected; and
(vii) Wetlands which through natural water filtration processes
serve significant and necessary water purification
functions.
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215 MILLION ORIGINAL ACRES
54% LOST;
-ii££v
6% REMAINED1
IN THE
MID-1970's •
(99 million acres)
Figure 2-1. Original and remaining wetlands in the
conterminous U.S.
Estimates of original wetland acreage present at the
time of this country's settlement vary. However,
a reliable account places this acreage at 215 million acres
(Roe and Ayres, 1954).
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MILLIONS OF ACRES
5 10 15 20 25 30 35 40 45 50
ESTUARINE INTERTIDAL FLATS
ESTUARINE EMERGENT WETLANDS
ESTUARINE FORESTED AND
SCRUB—SHRUB WETLANDS
PALUSTRINE EMERGENT WETLANDS
PALUSTRINE SCRUB-
SHRUB WETLANDS
PALUSTRINE FORESTED WETLANDS
OTHER PALUSTRINE WETLANDS
0.75
3.9
0.57
10.6
49.7
I _ .I Hill III,
IMIiiaiM
5.0
Figure 2-2. Extent of wetlands in the conterminous
U.S. in the mid-1970's.
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WETLANDS GAINS
LEGEND
[H] PALUSTRINE OPEN WATER
B PALUSTRINE FLAT
[2] ESTUARINE WETLAND
ED PALUSTRINE EMERGENT WETLAND
PALUSTRINE SCRUB-SHRUB WETLAND
[3 PALUSTRINE FORESTED WETLAND
Figure 2-3. Net losses and gains in wetland types in
the conterminous U.S. between the mid-50's and
mid-70's.
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Table 2-1. Major causes of wetland loss and
degradation.
Human Threats
Direct:
1. Drainage lor crop production, timber production
and mosquito control.
2. Dredging and stream channelization for naviga-
tion channels. Hood protection, coastal housing
developments, and reservoir maintenance.
3. Killing for dredged spoil and other solid waste
disposal, roads and highways, and commercial,
residential and industrial development.
4. Construction of dikes, dams, levees and seawalls
Tor flood control, water supply, irrigation and
storm protection.
5. Discharges of materials (e.g., pesticides, herbi-
cides, other pollutants, nutrient loading from do-
mestic sewage and agricultural runoff, and
sediments from dredging and filling, agricultural
and other land development) into waters and
wetlands.
6. Mining of wetland soils for peat, coal, sand,
gravel, phosphate and other materials.
Indirect:
1. Sediment diversion by dams, deep channels and
other structures.
2. llydrologic alterations by canals, spoil banks,
roads and other structures.
3. Subsidence due to extraction of groundwater,
oil, gas, sulphur, and other minerals.
Natural Threats:
1. Subsidence (including natural rise of sea level)
2. Droughts
3. Hurricanes and other storms
«1. l-rosion
5. Miotic effects, e.g., muskrat, nutria and goose
"cat-outs."
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Table 2-2. Examples of recent wetland losses.
State or Region
Lower Mississippi Alluvia! Plain
Louisiana's Forested Wetlands
North Carolina's I'ocosins
Prairie Pothole Region
Louisiana's Coastal Marshes
Great Lakes Basin
Wisconsin
Michigan
Kentucky
New Jersey's Coastal Marshes
Palm Beach County, Florida
Maryland's Coastal Wetlands
¦ New York's Estuarine Marshes
Delaware's Coastal Marshes
• Loss rale jfu-f passage nf Male roaMa) wclbml jmiicciion laww.
Law Rate
(ctrrcx/yrar) Source
165.000 MacDonald, et nl. (1979)
87,200 Turner and Cr.iig (1980)
45,50(1 Rictuulson, cl al. < I OK!)
33,000 Haddock and DcBaics (19691
25,000 Fruge (1982)
20,000 Great Liikes River Basin Comm.
(1981)
20,000 Wisconsin Department of Natural
Resources (1976)
6,500
3,600
3.084
50*
3,055
1,000
20*
740
444
20*
Wcllcr (1981)
Kentucky Dcpanment of Fish &
Wildlife Resources (1983)
Ferrigno, ct al. (1973)
MCA Corporation (1982)
U.S. Fish and Wildlife Service
(1982)
Rcdclfs (1983)
O'Connor and Terry (1972)
Hardisfcy and Klcmas (1983)
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Table 2—3. List of major wetland values.
FISH AND WILDLIFE VALUES
• Fish and Shellfish llnbitnt
• Waterfowl and Other Bird Habitat
• Furbcarer and Other Wildlife Habitat
ENVIRONMENTAL QUALITY VALUES
• Water Quality Maintenance
• Pollution Filter
• Sediment Removal
• Oxygen Production
• Nutrient Recycling
• Chemical and Nutrient Absorption
• Aquatic Productivity
• Microclimate Regulator
• World Climate (Ozone layer)
SOCIO-ECONOMIC VALUES
• Flood Control
• Wave Damage Protection
• lirosion Control
• Groundwater Recharge and Water Supply
• Timber and Other Natural Products
• lincrgy Source (Peat)
• Livestock Grazing
• Fishing and .Shclllishing
• I hinting and Trapping
• Recreation
• Aesthetics
• l-ilucation anil Scientific Research
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3. EPA'S ROLE IN THE SECTION 404 PERMIT PROGRAM
EPA has the responsibility to:
1) develop the Section 404(b)(1) Guidelines in conjunction
with the Corps;
2) review permit applications and provide comments to the
permitting authority;
3) make jurisdictional calls when necessary;
4) approve and oversee State 404 programs;
5) enforce violations under Section 309;
6) prohibit any defined area's specification as a discharge
site, or restrict its use, by following procedures given
in Section 404(c) whenever certain unacceptable adverse
environmental effects would be caused by discharges
In addition, EPA supplies technical assistance to the Corps,
other Federal or State agencies, or local governments concerning
issues of water quality, fish and wildlife resources, and
aquatic ecosystem structure and functions.
A. Development of 404(b) Guidelines
Section 404(b) of the Clean Water Act states that each disposal
site should be specified for each permit by the Secretary of
the Army through application of Guidelines developed by the
Administrator of EPA in conjunction with the Secretary of
the Army. EPA first published interim final guidelines on
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September 5, 1975, for the purpose of providing guidance to be
applied in evaluating proposed discharges of dredged or fill
material into navigable waters. The Guidelines were revised
and published on December 24, 1980, and now appear at 40 C.F.R.
230.
B. Application of 404(b) Guidelines
Final Guidelines apply to all 404 permit decisions made after
March 23, 1981. In the case of civil works projects of the
Corps of Engineers involving the discharge of dredged or fill
material for which there is no permit application as such, the
Guidelines apply to all projects for which construction or
dredging contracts are issued, or for which dredging is ini-
tiated for Corps operations not performed under contract, after
October 1, 1981. In the case of Federal construction projects
meeting the criteria of Section 404(r), the Guidelines apply to
all projects for which a final environmental impact statement
is filed with EPA after April 1, 1981.
Fundamental to the Guidelines is the precept that dredged or
fill material should not be discharged into the aquatic eco-
system unless it can be demonstrated that the discharge will
not have an unacceptable adverse impact, either individually
or in combination with known and/or probable impacts of other
activities affecting the ecosystem. The guiding principle of
the application of the Guidelines is that degradation or
3-2
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destruction of special aquatic sites (sanctuaries and refuges,
wetlands, mud flats, vegetated shallows, coral reefs, and
riffle and pool complexes) may represent an irreversible loss
of valuable aquatic resources.
General step-by-step procedures to be followed in applying the
Guidelines are given in 230.5(a-l). The permitting authority
must address all relevant provisions of the Guidelines before
reaching a Finding of Compliance in an individual case. These
procedures are illustrated in a flow chart shown in Figure 3-1.
The following is a summary of the basic Guideline precepts:
1) No discharge shall be permitted if there is a practicable
alternative to the proposed discharge which would have
less adverse impact on the aquatic ecosystem.
2) Where the activity associated with a discharge does not
require access or proximity to a special aquatic site to
fulfill its basic function (i.e., is not water dependent),
practicable alternatives are presumed to be available,
unless clearly demonstrated otherwise.
3) No discharge of dredged or fill material shall be per-
mitted if it:
a) causes or contributes to violations of any applicable
State water quality standard;
b) violates any toxic effluent standard;
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c) jeopardizes the continued existence of an endangered
or threatened species;
d) violates requirements to protect a marine sanctuary;
or
e) causes or contributes to significant degradation of
waters of the United States. Significant degradations
include adverse effects on life stages of aquatic life
and other water dependent wildlife, ecosystem diversity,
productivity and stability, recreational, aesthetic and
economic values.
4) No discharge of dredged or fill material shall be per-
mitted unless appropriate and practicable steps have
been taken to minimize potential adverse impacts on the
aquatic ecosystem.
The Corps, during recent regulatory reform review, questioned
whether EPA Guidelines were mandatory or advisory to the Corps
administration of the 404 permitting program. The Office of
Management and Budget reviewed this issue and concluded that
EPA Guidelines should be treated as mandatory within certain
limits (June 14, 1983). The Corps acknowledged this ruling
and included appropriate language recognizing the mandatory
nature of the Guidelines in their revised regulations dated
October 5, 1984, which were prepared in response to the
settlement agreement for the NWF v. Marsh suit. OMB also
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found that the current guidelines mandate much more than they
should and should be substantially revised and simplified to
restore a proper division of labor between EPA and the Corps.
Regardless of any shortcoming of current guidelines, they are
the basis for specification for disposal sites, and must be
used by permitting and review agencies alike. The Corps'
October 1984 Regulations state that compliance with the
Guidelines is mandatory for all permit actions. The Corps
performs their public interest review only in those cases
where compliance with the Guidelines has first been determined.
In fact, however, there frequently are still major disagreements
between resource agencies and the Corps districts regarding
conformance with the Guidelines. Many permits are being
issued that do not in the opinion of EPA. However, the Corps
has the responsibility for determining "conformance".
C. Jurisdiction of the 404 Program
There has been a continuing controversy concerning which
agency has the ultimate authority in determining the scope of
jurisdiction of the 404 program. Official opinion on this
controversy was given by U.S. Attorney General Benjamin
Civiletti in his letter to Clifford L. Alexander, Jr. dated
September 5, 1979. He stated that Congress intended to
confer upon the Administrator of EPA the final administrative
3-5
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authority to make these determinations. The Attorney General
said that it is the Administrator who interprets "navigable
waters" in carrying out pollution control responsibilities under
sections of the CWA apart from Section 404, and found no sup-
port in the statute or its legislative history for a conclusion
that a water body would have one set of boundaries for purposes
of dredged and fill permits under Section 404 and a different
set for purposes of other pollution control measures of the Act.
Since EPA lacks the staff to make routine field jurisdictional
determinations for all dredge and fill applications, and since
it is the Secretary of the Army's responsibility to administer
the Federal permit program under Section 404, EPA and the
Corps signed a Memorandum of Understanding regarding the juris-
diction of the Section 404 program on April 23, 1980.
It was agreed that District Engineers are authorized to make
final jurisdictional determinations for pre-application in-
quiries, permit situations, and enforcement situations with-
out consultation with EPA. EPA has the authority to identify
Special Cases, where the environmental consequences of juris-
diction are significant. EPA has published a list of special
cases in the Federal Register and has the authority to deter-
mine the jurisdictional scope of the program in those desig-
nated areas. At present, the list of Special Cases is limited
to 73 counties in the Mississippi River floodplain where
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bottomland hardwood wetlands predominate (48 in Mississippi,
7 in Kentucky, and 18 in Tennessee).
D. State 404 Programs
Section 404(g) outlines the procedures a state may initiate
to assume the Section 404 program for waters of the United
States within the State, except those waters used for inter-
state or foreign commerce shoreward to their ordinary high
water mark, including all tidal waters shoreward to their
mean high water mark and adjacent wetlands. Those interstate,
or foreign commerce, waters must remain under Federal juris-
diction.
Draft Final Regulations governing the State assumption of the
program were published in the Federal Register in October 1984.
E. Enforcement
Discharge of a pollutant into waters of the United States
m
without a permit is unlawful. Section 404(s) gives the
Secretary of the Army the authority to enforce permit viola-
tions including commencement of civil actions, temporary or
permanent injunctions, and fines. Regulations governing
Corps enforcement are given in 33 CFR 326. The District
Engineer should, in appropriate cases, depending upon the
potential impacts of the illegal work, solicit the views of
the Regional Administrator of the EPA, the Regional Director
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of the U.S. Fish and Wildlife Service, and the Regional
Director of the National Marine Fisheries Service# and other
Federal, state and local agencies.
The Corps may accept an after-the-fact permit application in
lieu of immediately commencing an enforcement action. Such
after-the-fact permits may be issued only if they comply with
the 404(b) Guidelines as well as other requirements set out
in Corps' regulations. EPA provides written comments when
appropriate to the Corps on Cease and Desist Orders and/or
after-the-fact permit applications.
EPA technical personnel are available to assist the Corps in
evaluating effects of violations on water quality, fish and
wildlife habitat, and ecosystem dynamics. Regional Office
personnel routinely gather field data and testify at federal
trials as expert witnesses for the Government.
EPA enforcement options for Section 404 are given in Section
309 of the CWA. If a state with an approved permit program is
not actively pursuing enforcement action, EPA may issue an
order requiring compliance or bring civil action (federally
assumed enforcement). EPA may issue an Administrative Order
under Section 309 for any unpermitted discharge of pollutants
into waters of the United States which is a violation of Section
301 of the CWA. Early in the 404 program, EPA took this action
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in cases where the Corps failed to issue Cease and Desist Orders
for work in areas where the Corps felt its jurisdiction did not
apply. More recently, issuance of Administrative Orders has
been confined to serious violations when the Corps is either
slow to act, or when EPA wishes to take the lead in requiring
restoration or civil penalties. Section 404(k) provides that
nothing in Section 404 should be construed to limit the
Administrator's Section 309 authority.
F. Use of 404(c)
The Corps may issue a permit, even if EPA comments adversely,
after consultation takes place. In the case of state programs,
the State director may not issue a permit over EPA's unresolved
objection. Under either a Federal or State program, the
Administrator may prohibit the specification of a discharge
site, or restrict its use, by following procedures given in
Section 404(c) of the CWA. Such action may be initiated if
the Administrator determines that the discharge would have an
unacceptable adverse effect on fish and shellfish areas, munici-
pal water supplies, and for wildlife or recreation areas. He
may do so in advance of a planned discharge or while a permit
application is being evaluated, or even after the issuance of a
permit.
If the Administrator uses 404(c), he may block issuance of
a permit by the Corps or a State 404 program. His action may
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not be overridden under Section 404(b)(2) which allows the
Corps to make some permit decisions based on the economic
impact of the site on navigation and anchorage.
The fact that EPA has 404(c) authority does not lessen EPA's
responsibility for developing 404(b) Guidelines for use by the
permitting authority. Indeed, if the Guidelines are properly
applied, EPA will rarely have to use its 404(c) veto. Its use
in Region IV is discussed in Section 7 of this report.
3-10
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Figure 3-1. Flow chart summarizing application of
Section 404(b)(1) Guidelines.
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CORPS' ROLE IN THE SECTION 404 PERMIT PROGRAM
In Section 404, Congress clearly placed the permit issuance
responsibility with the Corps of Engineers. Logistically,
the Corps was well suited for such role since their in-place
District/Divisional organizational structure geographically
covered the United States. As an example, within Region IV
there are eleven Districts and five Divisions administering
the 404 permit issuance program.
A. Public Notices
The Corps regulations require all Districts to issue Public
Notices of applications received for 404 permits. Time
limits and a central point of contact for comments are
established. Individual permits are not required for
certain activities having only minor environmental impacts.
These are covered under General Permits.
B. Public Interest Review
Unlike other federal or state agencies commenting on pro-
posed projects within a fairly narrow perspective (such
as the U.S. Fish and Wildlife Service), the Corps* review
process must include a broad range of affected interests
in order to determine whether issuance of a permit would
be in the public interest. A flow chart summarizing the
steps in the permitting process is given in Figure 4-1.
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C. Jurisdictional Determinations
Through a Memorandum of Understanding, EPA and the Corps
have agreed that unless EPA identifies "special cases,"
the Corps determines the limits of wetlands covered under
404 permits. EPA has the final call for "special cases";
however, resource limitations have severly restricted
EPA's role in making such calls.
D. Regulated Activities
The Corps also has identified various activities that are
not subject to 404 permitting. This has led to major
problems, especially in bottomland hardwood situations,
since EPA does not agree with the Corps in some instances.
Generally, the Corps' calls are satisfactory to EPA and
close cooperation has been effective. Typical landclearing
operations in jurisdictional wetland areas, however, have
usually not been regulated by the Corps. EPA believes
they should be regulated since much wetland destruction
is occurring without control. This fundamental difference
of opinion is a major impediment to an effective program,
and can only be resolved at the Washington level.
E. Permit Volume
The volume of public notices received from all Corps
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Districts within Region IV was between 3000-4000 per year
following the Corps' expanded program in 1975. Subse-
quently, with the advent of General Permits and reces-
sionary trends of the national economy during the late
70's, the volume stabilized around 2100-2200. The latest
figures indicate that a rising level of nearly 3000 will
be received in FY*85. (Figure 4-2) In comparison to
similar figures from other Regions, Region IV continues
to process one of the heaviest permit application work-
loads in the country (Figure 4-3)
F. Corps Projects
In addition to processing 404 permits, the Corps responsi-
bilities also include navigational dredging and civil works
projects that constitute major wetland impacts, surpassing
by far those impacts resulting from issued permits. Au-
thority of EPA to prevent spoiling in wetlands in associa-
tion with such projects is limited. Civil works projects,
such as the Tennessee-Tombigbee Waterway, the Cross
Florida Barge Canal, and the Kissimmee River channeliza-
tion projects, frequently adversely impact wetland resources.
If EPA objects to such projects, we immediately are
branded as "obstructionists." Rarely do mitigation ef-
forts efforts result in resource parity for these large
scale projects. Rather, net losses of wetland resources
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generally occur. Of particular significance is the
historical method of disposing of dredged material from
navigational projects (both maintenance and channel
deepening) in wetlands or on productive, shallow estuarine
bottoms. For several years EPA Region IV has attempted,
unsuccessfully, to require the Corps to dispose of such
material in the ocean or Gulf where minimal environ-
mental damage would result.
4-4
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Figure 4-1. Flow chart summarizing Corps of Engineers
Section 404 permitting process.
CORPS OF ENGINEERS PERMITTING PROCESS
Corps of Engineers Permitting Process.
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REGION IV PERMIT LOAD
3000
v.
"Z
o
t-i
Eh
5 2000
IH
•J
cu
p-
«t
fe.
o
cc
u:
DC
5 1000
81 82 83 8*1 85 (projected)
FISCAL YEAR
Figure 4-2. Region IV permit load, FY 1981-1985 (projected).
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3000 "
FY 83 PERMIT APPLICATIONS
J
fr. 2000
<
1000
R
E
G
R
E
G
R
E
G
R
E
G
R
E
G
R
E
G
R
E
G
R
E
G
R
E
G
R
E
G
10
Figure 4-3. Comparison of Section 10/404 permit applications of EPA Regions, FY 1983.
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CORPS/EPA INTERACTION
In view of the large number of permit applications proc-
essed and permits issued each year, the Section 404 pro-
gram has demonstrated that it is functioning, procedurally.
Its effectiveness in preserving wetlands, however, is
marginal at best. In spite of significant differences
between EPA and the Corps, there has been a generally
good interaction and relationship with the various Corps
Districts and Divisions.
A. Resolution of Conflicts
Many Districts frequently hold interagency meetings where
information is shared among the several local, state, and
federal agency personnel. Many decisions affecting poten-
tially significant project proposals are made at such
meetings, often involving mitigation measures, plan modifi-
cations, or, in some instances, alternate locations. For
those few projects having major wetland impacts that cannot
be resolved through interagency/applicant negotiations,
additional efforts are required.
B. Memorandum of Agreement - 404(g)
In accordance with the 1977 Clean Water Act Amendments,
the Corps entered into an MOA with EPA. This agreement
set time limits for decisions relating to permit applica-
-------
tions and established a protocol for resolving differing
viewpoints. From EPA's perspective, this MOA generally
proved to be misguided since it clearly gave ultimate
authority to the Secretary of the Army (Corps) and seldom
allowed an environmental review of significant adverse
actions pertaining to a permit application. Mr. Ruckelshaus
terminated the agreement last year. Efforts to renegotiate
the agreement have not been successful to date. This is a
major problem area for the Regions because significant
conflicts can now be resolved only through initiation of
EPA's veto authority under Section 404(c).
C. Section 404(c)
Under this section, EPA can veto the issuance of a Corps
permit. To date, there have only been two such actions
completed. Two more are in process in Region IV. Since
well over 100,000 permit applications have been processed
by the Corps since enactment of the Clean Water Act, it
is clear that EPA has been judicious in execution of this
authority. Only rarely, when policy matters or very
significant adverse impacts are anticipated from a proposed
project, has this authority been employed. Given the
current situation of strained relationships between EPA
and the Corps relative to review procedures, it is likely
that EPA may be forced to resort to increasing use of
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404(c) if it desires to remain effective in protecting
important wetlands.
Additional information regarding specific application of
this procedure is provided Section 7 of this document.
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6. ROLE OF OTHER FEDERAL AGENCIES IN PERMITTING
A. Fish and Wildlife Service
1. Permit Review
Based on the Fish and Wildlife Coordination Act of 1956,
opportunity must be given to the U.S. Fish and Wildlife
Service (FWS) for review of any federal activity which may
result in impacts to fish and wildlife resources. Any Corps
dredge/fill project, or an individual activity requiring a
Corps permit, is subject to the FWS's review under this
Act. The FWS evaluates such projects and offers recommenda-
tions to the Corps on how to adequately protect fish and
wildlife resources.
A Memorandum of Agreement (MOA) exists between the FWS and
the Corps, much the same as EPA's 404(q) MOA with the Corps,
providing the opportunity for the FWS to request elevation
of any Corps district-level 404 permit decision where signifi-
cant, unresolved differences remain between the FWS and the
Corps. Projects for which an EIS has been prepared may be
referred to CEQ by the FWS should it feel that resources have
not been adequately considered.
2. Mitigation Policy
As published on January 23, 1981, the FWS's mitigation
policy provides guidance at the federal level for protection,
6-1
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preservation, enhancement/ and compensation of fish and
wildlife resources. This policy is designed to enable other
government agencies and private developers to anticipate the
FWS's recommendations early in the initial phases of construc-
tion projects. Usually the FWS recommends a mitigation plan
during the early stages of agency consultation, based on
potential changes in the project site's biological value to
fish and wildlife. The policy provides for habitat valuation.
Four value categories are identified in the policy ranging
from the highest category of unique and irreplaceable habitat
of high value to the fourth and lowest level consisting of
minimal to low value habitat. Mitigation strategies are
specified for each of these categories and provisions are
identified for avoiding losses and replacing or compensating
for unavoidable losses.
B. National Marine Fisheries Service
The National Marine Fisheries Service also provides comments
to the Corps on proposed permits, based on the Fish and
Wildlife Coordination Act. In addition, the Service also has
responsibilities under the Marine Protection, Research and
Sanctuaries Act of 1972 to provide evaluation and input on
projects which may impact the marine environment. That
i
agency, like EPA and the FWS, may refer/elevate conflict
cases to CEQ/Corps higher authority through provisions of
NEPA and an MOA with the Corps.
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7. 404(c) ACTIONS
A. General
Under Section 404(c) of the Clean Water Act (CWA), the
Administrator of the Environmental Protection Agency (EPA)
is authorized to prohibit the specification (including the
withdrawal of specification) of any defined area as a disposal
site, and he is authorized to deny or restrict the use of any
defined area for specification (including the withdrawal of
specification) as a disposal site. The decision can be made
whenever the Administrator determines, after notice and
opportunity for public hearings, that the discharge of such
materials into such area will have an unacceptable adverse
effect on municipal water supplies, shellfish beds and fishery
areas (including spawning and breeding areas), wildlife, or
recreational areas. Before making such a determination, the
Administrator shall consult with the Chief of Engineers, the
landowner, and the applicant, if any.
Authority granted under Section 404(c) has been viewed by EPA
as a "last ditch" effort to protect the resource, invoked only
after all other administrative options for resolving EPA/Corps
decision conflicts are exhausted (intensive coordination, CEQ
referral, elevation under the 404(q) MOA, etc.).
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B. Specific Cases
Since the passage of the Clean Water Act in 1972, and promul-
gation of EPA's 404(b)(1) Guidelines in 1975, it is estimated
that more than 100,000 applications for permits to perform
dredge and/or fill activities in wetlands have been received
nationwide by the Corps of Engineers. Of this number, EPA
has denied the use of only two wetland sites for disposal
under the 404(c) authority (Munisport and Norden). EPA has
invoked the 404(c) authority at two additional wetland sites
within Region IV. The evaluation and decision procedures
provided under the 404(c) regulations are underway at this
time for these two cases (Reeves and Maybank).
Following are brief descriptions of each of these cases.
1. Munisport
On January 19, 1981, EPA Administrator Douglas Costle withdrew
specification of a 70-acre Miami, Florida, tidal wetland for
use as a disposal site. The Corps of Engineers had issued a
Section 10/404 permit for disposal in wetlands, failing to
acknowledge that disposed material would be solid waste.
Literally, the valuable tidal swamp was to be used as a
garbage disposal site. After water quality data were obtained,
EPA determined that use of the area as a landfill would result
in gross contamination from leachates reaching the adjacent
aquatic resources, and would thereby result in an unacceptable
adverse effect on shellfish and fishery areas, wildlife and
recreational areas.
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2. Norden
On June 15, 1984, EPA Administrator William Ruckelshaus made
the decision to prohibit the deposition of fill materials in
a 25-acre tidal wetland in Mobile, Alabama, under the authority
granted to him by Section 404(c) of the Clean Water Act (CWA).
This was the second such use of the 404(c) authority since the
passage of the Clean Water Act.
A 25-acre tidal swamp had been proposed for development for
a non-water dependent business within the City of Mobile,
Alabama. After consideration of the record in this case,
which included public comments, the public hearing record, a
Special Task Force Report, and comments from the Office of
the Chief of Engineers, and after consultation with the M.A.
Norden Company's representatives, EPA determined that the
discharge of the fill materials into the site proposed by the
M.A. Norden Company would have had an unacceptable adverse
effect on shellfish beds^fishery areas, and wildlife areas.
In this case, EPA conducted an alternatives survey in the
Mobile area designed to determine the availability of non-wet-
land sites suitable for the proposed Norden facility. Several
sites were found which met all criteria, including comparable
costs. Mr. Ruckelshaus based his decision to prohibit the
site as a disposal area on this alternatives survey and the
extensive ecological data which were collected. EPA received
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strong support from the environmental community for taking
this decisive action.
3. Reeves
Mr. Graham Reeves proposed to impound approximately 550 acres
of wetlands on Minim Creek near the Intracoastal Waterway in
South Carolina. The primary purpose of the project is for a
private waterfowl shooting impoundment. After thorough
evaluation of the proposal, Region IV determined that the
project would have a severe impact on water quality and
fisheries resources. Region IV initiated a 404(c) action on
April 18, 1984. A public hearing was held in Charleston,
South Carolina, on September 5, 1984.
The applicant has recently proposed that the project be used
as a site for a major study of the environmental effects of
impoundments, and the public hearing record will be open until
March 11, 1985, to consider the merits of that proposal.
The Reeves' proposal has received support from a number of
impoundment owners in the Georgetown area. EPA has received
strong support from the environmental community and the South
Carolina Attorney General.
4. Maybank
Mr. Jack Maybank proposed to impound approximately 900 acres of
wetlands on Jehossee Island adjacent to the South Edisto River
7-4
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in South Carolina. The primary purpose of the project is for a
waterfowl shooting impoundment. The project would have a
severe impact on water quality and fisheries resources. Region
IV initiated a 404(c) action on April 18, 1984. A public
hearing was held in Charleston, South Carolina, on September 6,
1984. On January 18, 1985, a Recommended Determination was
sent to the EPA Assistant Administrator for External Affairs
for final action.
The Maybank project has some support among local impoundment
owners; however, EPA has received strong support from the
environmental community.
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8. ROLE OF STATES IN PERMITTING
A. State General Permits
Several Corps Districts in Region IV are contemplating the
use of a State General Permit to further streamline the
Section 404 permitting process. Under this plan. State
Dredge and Pill Programs would administer issuance of a
dredge and fill permit for certain specified activities.
This Region has three major concerns over the issuance of
such general permits. It appears that this program conflicts
with the State Assumption Program of EPA because it promotes
state assumption in a piecemeal fashion. This apparent
conflict between the Corps and EPA over the mechanism of the
State's assumption of the program must be resolved.
Our second concern is that the CWA and EPA guidelines require
that activities which qualify for permitting under a
general permit be of a similar nature and have minimal
individual and cumulative adverse impacts. Although we
support the concept of general permits when they are properly
developed, delegation of the permit function for many activi-
ties to the state under a general permit may not meet these
criteria.
Finally, our third concern with the Corps' general permit is
the exclusion of federal agency concerns in the review pro-
cess. The Wilmington District, which has a State General
8-1
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Permit Program, has alleviated this concern by including a
"kick-out" clause in the permits process. This procedure
allows federal review agencies to comment on permit appli-
cations. In cases where there is an unresolved objection
from a federal agency, the permit application is withdrawn
from the process and a Corps of Engineers individual public
notice is published for comment.
It is our hope that all Corps Districts contemplating a
state-wide general permit program will incorporate a similar
"kick-out" clause. This would allow states to take advantage
of federal expertise on environmental problems in protecting
their resources.
B. North Carolina Coastal Area Management Act (CAMA)
In 1982, the Wilmington Corps District and the State of North
Carolina instituted use of a single application form and
joint permit processing for those applications in which both
state and federal permits are required within an "Area of
Environmental Concern." This area was defined in the
State's Coastal Area Management Act (CAMA).
The Corps issued a General Permit in 1981 for activities
in 20 coastal counties comprising the area of environmental
concern. The North Carolina Office of Coastal Management (OCM)
-------
publishes public notices for CAMA permits, and distributes
them to State review agencies. The Corps sends these public
notices to federal review agencies.
If a CAMA permit is denied by OCM, there is no need for any
federal action. However, the Corps retains the authority to
withdraw any permit application from the joint review process
if requested by a federal review agency or the Corps itself.
Such a project would receive individual public notice review.
This program works well, and field reports supplied by the
State inspection agencies are available and very useful.
C. Coastal Zone Management Act (CZMA)
The goal of the Federal CZMA is to provide for comprehensive
and balanced management of coastal resources. The original act
was passed in 1972, was amended in 1980, and is up for reau-
thorization in 1985. The Act applies to coastal states, states
bordering the Great Lakes, and the U.S. Territories.
The basic operating mechanism is the development of a feder-
ally approved state program. Participation is voluntary. Once
a program is approved, the states qualify for federal funds for
program implementation. Generally, the federal government
provides 80% of the funds and the states provide 20%. For the
states that have an approved CZM program, the state issues a
consistency determination for each COE Section 10/404 dredge
8-3,
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and fill permit application. The consistency determination
states whether the permit, if issued, would be consistent with
the goals of the state CZMA program. The Corps will not issue
a 404 permit for a project inconsistent with these goals.
D. Special Management Areas
A section of the Coastal Zone Management Act provides for the
delineation of Special Management Areas (SMA). The purpose
of the SMA program is to provide long range planning and
dredge and fill projects for a certain time period (10 years
or more) are evaluated at one time. The environmental impacts
are analyzed and mitigation plans are prepared. The concept
has received the widest application for the development of
port expansion plans along the coast of Alabama and Mississippi.
A "task force" approach is used and all concerned local,
state and federal agencies are involved in the development of
the management plans.
E. 401 Certification
Under Section 401 of the Clean Water Act, each state must
certify that a Section 10/404 permit issued by the COE will
not violate the Water Quality Standards. If the certification
is denied, the COE can not issue the permit.
balanced development in a discrete area
8-4
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F. State Dredge and Fill Programs
Some states have dredge and fill programs that regulate
activities in waters of the United States. The jurisdictional
limits of the state programs vary widely. Some states only
have jurisdiction below the plane of mean high water, while
others have jurisdiction over all coastal waters and wetlands.
Others regulate all coastal wetlands and all freshwater
wetlands. The quality of the programs also varies widely.
Aerial surveillance for enforcement of unauthorized activities
is a key element of successful state programs.
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9. STATE ASSUMPTION OF THE SECTION 404 PROGRAM
The 1977 amendments to the Clean Water Act included provisions
for State assumption of the 404 program. This revision was
intended to allay fears that the Federal Government was en-
croaching on state authority, resulting in duplication and
delays, while retaining the 404 program as an important
aspect of the nationwide effort to improve water quality and
protect valuable water resources.
Section 404(g) of the Clean Water Act presents the rationale
and criteria for assumption of Phases II and III of the Section
404 program by the states. State program regulations were
first promulgated in May 1980 (consolidated permit regulations).
These regulations were criticized for many reasons including
rigid mandatory requirements, excessive paperwork, and lack
of flexibility. The 404(g) regulations were removed from the
consolidated permit regulations in April 1983 and reformated.
Proposed revisions to the 404(g) regulations were published
in October 1984. The revisions should -aoouago^ost of the
concerns about the 404(g) regulations. All states are con-
cerned, however, with the lack of federal funding for the
state assumption program. Some states are also concerned
that under the existing legislation they can only assume
Phases II and III.
A major responsibility of EPA's 404 program is to ensure that
the 404 program is an effective national water quality and
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wetlands protection program. New state 404 programs, in con-
junction with the Corps of Engineers' regulatory program, may
better control the indiscriminate discharge of dredge or fill
materials, and thereby protect wetland resources. To further
this goal, EPA is assisting interested states with the develop-
ment of state 404 programs. State programs are essentially to
mirror the federal program, and, like the federal program,
must ensure that all activities will comply with the technical
standards contained in the environmental guidelines issued by
EPA, in conjunction with the Corps, under Section 404(b)(1).
Michigan is the only state that has assumed the 404 program.
In Region IV, the States of South Carolina, North Carolina,
and Tennessee have received grants to investigate the possi-
bility of state assumption. Kentucky has expressed strong
interest and has been sent a similar grant application. The
lack of substantive federal funding will probably continue to
be a serious hindrance to state assumption.
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10. RELATIONSHIP OF SECTION 404 WITH OTHER EPA PROGRAMS
A. NEPA
Approximately 75% of all NEPA documents received by Region IV
are initiated because of the need for Section 10/404 permits.
This figure is approximately 100% for water resource projects
where Section 10/404 permitting is almost always the major
federal action.
There are many similarities between the NEPA review process
and the 404 review process, the goals of which are to minimize
damage to important resources. Staff personnel interact daily
in Region IV. Review of NEPA documents and 404 applications
requires a comprehensive knowledge of the resource which will
be impacted. Technical understanding of system processes and
functions are necessary to recognize potential impacts and to
recommend alternative designs and locations which would result
in less environmental impacts. Both review processes require
active, interagency coordination with the same federal offices.
Thus, there is an element of continuity of concerns which can
be recognized and anticipated. There is also a need to coordi-
nate both review processes within the Agency and involve the
CZM coordinator, groundwater and surface water hydrologists,
and other technical staff to achieve optimum review.
In addition, for those special studies and EIS's conducted by
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Region IV's NEPA EIS preparation staff, expertise on 404 mat-
ters is readily available since all personnel share one
office. The fact that both NEPA and 404 staffs report to the
same supervisor results in a consistency of review of water
resource and wetland projects which might not be possible to
achieve with a different organizational structure.
B. NPDES
Most states within Region IV have assumed the NPDES program.
Thus, these issues rarely trigger NEPA documents or involve
404 review, with several important exceptions. Florida has
chosen not to assume the NPDES program. A major industry in
that state is phospate mining which occurs over vast areas
containing many wetlands. For new source NPDES permits
requiring an EIS, EPA is the lead agency in preparing the
document. These documents contain a wetland evaluation of
the proposed mine site and a recommended mining plan to
minimize wetland losses and preserve regionally important
wetlands from mining. In addition, the EIS for mining will
detail specific reclamation plans to provide for a diversity
of aquatic habitat after mining. Incorporation of wetland
preservation, impact minimization, and restoration of wet-
lands in the EIS does not preclude the requirement for a
Section 404 permit from the Corps. EPA 404 personnel must
coordinate closely with the EIS writers, Corps personnel and
other federal and state agencies to assure consistency of
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project goals and design. Coordination is maximized in Region
IV by having EIS preparation staff and 404 program staff
under the same Branch Chief.
Other areas which require interaction are siting of waste
treatment facilities and fish farming operations. Receipt of
approval from EPA to site, construct, and implement a treatment
facility does not preclude the requirement for a Section
10/404 permit if the facility, or discharge structure, is
located in waters of the United States. Commercial fish
farms may require both a 404 permit to build the structure
(dikes, ponds, etc.) and a 402 permit to release effluent.
Close coordination is again required to assure an environmen-
tally acceptable project. Excellent relationships between
the 404 staff and Water Division has resulted in effective
review of these facilities.
C. Superfund
There are limited occasions when EPA's own Superfund activities
can create administrative problems for the Section 404 program.
While emergency response activities in wetlands may be handled
under Nationwide Permit No. 20 of the Corps' permit regulations,
there is no formal protocol for remedial measures addressing
chronic problems. We believe that close intra-agency coor-
dination among the principals and between EPA and the Corps
is necessary. We anticipate that as the number of remedial
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activities increases throughout the nation, the number of
sites involving wetlands will increase, requiring the adoption
of procedural agreements to avoid administrative delays in
effecting the remedial cleanup measures.
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11. THE ROLE OF CONSERVATION ORGANIZATIONS IN THE
SECTION 404 PROGRAM
A. Representatives of Local Issues
Conservation organizations represent local, state, or national
special interest groups in areas dealing with resource manage-
ment, conservation, and wildlife and account for a very signifi-
cant constituency in Region IV. Opinions of these groups can
be very influential in permitting decisions, especially on the
local and State level. Routinely, a special group of conserva-
tion group representatives from each of the eight states
within the Region meet with the RA and senior staff personnel
to discuss significant environmental issues. Invariably, 404
issues are raised. This forum allows an excellent exchange
of information and assures close coordination with major
interest groups.
Interested conservation organizations are on the mailing list
to receive Corps public notices and routinely provide written
comments. Because these groups have many dedicated people with
detailed knowledge in their area of expertise and in the local
ecology, their comments can be very beneficial to the permit
review process and Corps decisions on public interest.
B. Shaping National Policy
Several conservation agencies have been extremely effective
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in shaping the jurisdiction and scope of the 404 program by
bringing suit in federal court. For example, the suit NRDC
v. Callaway resulted in expanded coverage of the Corps'
wetland program and Avoyelles Sportsmen's League v» Marsh
resulted in formalization of the three parameter approach to
deciding wetlands jurisdiction, namely vegetation, soils and
hydrology.
C. Suit over Revised Corps Regulations
On July 22, 1982, the Corps published Interim Final Regulations
which replaced their July 19, 1977, regulations. Major changes
of the regulations are in reduction of processing time and
expansion of the nationwide permit program. Both of these
areas were goals of regulatory reform to streamline the per-
mitting process.
On December 22, 1982, fifteen environmental organizations filed
suit against the Department of Army and EPA (National Wildlife
Federation v. Marsh) over several provisions of the Interim
Final Regulations. The suit contended that six of the 27
nationwide permits granted by the regulaton expanded the
scope of the general permit program beyond the bounds set by
Section 404. The "headwaters general permit" and the "isolated
waters general permit" were challenged in part because they
are for "categories of water", while 404(e) authorizes general
permits only for activities that are "similar in nature."
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The surface mining general permit and the categorical exclu-
sions general permit were claimed likely to cause far more
than the "minimal individual or cumulative impacts" permitted
by Section 404(e). Furthermore, no EIS was prepared and the
environmental assessment failed to provide sufficient data to
adequately determine the impacts of the general permits, in
violation of the National Environmental Policy Act.
NWF also challenged several definitions contained in the new
regulations. Section 404(f) exempts certain dredge and fill
activities from the requirements of Section 404, including
discharges for the "...construction or maintenance of farm or
stock ponds or irrigation ditches, or the maintenance (but not
construction) of drainage ditches". However, the regulations
expanded the exemption beyond the statute to include discharges
associated with any irrigation facility. "Fill material" is
defined to exclude the regulation of discharge of material that
in fact "fills" an aquatic area if such filling is not the
primary purpose of the discharge. This definition was alleged
by plaintiffs to be inconsistent with EPA regulations.
On February 10, 1984, the court approved a settlement agreement
whereby the Army agreed to publish regulations proposing several
policy and procedural changes and modifications to certain
nationwide permits. This agreement was endorsed by the Army,
EPA, Department of Justice and the environmental organizations,
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and resulted in changes in Corps Regulations published October 5,
1984.
It is important to note that the settlement does not address
all EPA's concerns, but rather only those issues raised by the
environmental groups in their lawsuit. EPA will continue
discussion with the Army on the remaining issues.
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12. PROBLEM AREAS
A. Policy Issues
1. Compliance With Section 404(b)(1) Guidelines
The Corps has interpreted Section 404(b) of the Clean Water
Act to give the Corps authority to determine compliance with
the 404(b)(1) Guidelines. EPA has authority to review and
comment on permit applications, and routinely prepares comments
based on applicability of the proposed action to the 404(b)(1)
Guidelines. The Assistant Secretary of the Army has directed
Corps offices (Regulatory Guidance Letter 84-6, March 24,
1984) to give full consideration to the views of EPA with
respect to the environmental effects of Corps permit applica-
tions. However, the Corps has concluded that EPA determina-
tions of compliance are to be considered advisory only. In
addition, the Corps concludes that since application of the
Guidelines involves technical and factual determinations and
does not involve unresolved issues requiring national policy
review, District Engineers will consider invalid any recom-
mendations for permit denial and request for elevation under
the Section 404(q) MOA based on EPA or any other agency
determination of non-compliance with the Section 404(b)(1)
Guidelines.
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This decision by the Corps diminishes the important role of
EPA in the permit process, i.e., to supply meaningful inde-
pendent review of compliance of applications with the Guide-
lines. The Corps may ignore EPA's views.on compliance, with
no possibility of elevation. The Corps' attitude, coupled
with the restricted scope of the MOA between the two Agencies,
may well require increased use of 404(c) vetos by EPA. There
is no other current mechanism to resolve major differences of
opinion between the two agencies.
2. Solid Waste Discharges Into Waters of the United States
Although EPA has authority under Section 402 of the CWA to
regulate discharges of solid waste into waters of the United
States, it has been expedient to rely upon the Corps to find
and take enforcement action on 402 violations as part of
their 404 enforcement supervision and inspection. Recently,
however, the Corps has indicated that violations involving
building wastes and other waste materials are not subject to
their Section 404 enforcement procedures, since such discharges
do not meet their primary purpose test. The Corps defines
"fill material" as any material used for the primary purpose
of replacing an aquatic area with dry land or of changing the
bottom elevation of a waterbody. The term does not include
any pollutant discharged into the water primarily to dispose
of waste, as that activity is regulated under Section 402 of
the Clean Water Act.
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Substantial staff time will be required if EPA has to take
legal and corrective actions on all minor fill violations
resulting from the deposit of refuse into waters of the
United States. We must continue to rely on Corps field
offices for discovering the violations and on local Corps
districts for effecting restoration. Continuing discussion
of this matter at the Washington level is required for a
resolution. We suggest that the Corps discard the primary
purpose test for minor fill violations and use their Section
404 enforcement procedures to restore the aquatic resource.
3. Mitigation Policy
Subpart H of the Section 404(b)(1) Guidelines discusses
actions which can be undertaken to minimize the adverse
effects of discharges of dredged or fill material. Some
of the ways to accomplish this are:
1) Locating and confining the discharge to minimize
smothering of organisms;
2) Designing the discharge to avoid disruption of periodic
water inundation patterns;
3) Selecting a disposal site that has previously been
used for dredged material discharge;
4) Selecting a disposal site where the substrate is
composed of material similar to that being discharged;
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5) Selecting a disposal site, the discharge point, and the
method of discharge to minimize the extent of any plume;
and
6) Designing the discharge of dredged or fill material
to minimize or prevent the creation of standing
bodies of waters in areas of normally fluctuating
water levels, and minimize or prevent the drainage
of areas subject to such fluctuations.
Although the word "mitigation" does not appear in the Corps
Regulations, mitigation has become an important part of Corps
permits. Federal commenting agencies have routinely requested
replacement of wetlands to be destroyed through the permitting
process. This has become so commonplace since regulatory re-
form measures have been imposed that wetlands creation has
become synonomous with mitigation.
In many instances the Corps has issued permits for projects
which review agencies feel do not conform to the Section 404(b)
Guidelines because there are practicable, less environmentally
damaging alternatives. Because elevation of disputes under the
current MOA's has proven futile (since reasons for elevation
are restrictive and the Corps makes the final determination
on whether if the elevation will be heard, and at what level)
and 404(c) is labor intensive and reserved for disagreements
over major projects, requiring wetland replacement has become
a practicable way to attempt to replace the environmental
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impacts of wetland losses. However, many such projects with
proposed mitigation should not receive permits, and successful
replacement through planting is risky and may result in the
destruction of functional upland habitats to replace filled
wetland acreage.
Thus, there is a growing need for a uniform, national mitigation
policy, especially if there is no practicable recourse for
disputing poor permitting decisions. A suggested mitigation
policy follows.
Only after the following three conditions are met should a
permit be issued. (This is merely strict application of the
Corps public interest review and basic Guideline precepts.)
1) The public benefits of a project must exceed the loss of
benefits normally accrued by the specific wetland area
involved.
2) The project must be located in a wetland to fulfil its
basic function.
3) There are no practicable alternatives available that
involve uplands or wetlands that function to a lesser
degree.
On-site mitigation measures should be considered first and
may include alternate construction or disposal techniques or
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creating wetlands from uplands. Off-site mitigation should be
considered only when on-site mitigation is impossible or in-
adequate.
Off-site mitigation generally involves creation of equivalent
wetlands. They should be created on a greater than 1:1 ratio
to offset functional losses experienced during the period
required to create fully functional wetlands and because of
the uncertainty of success.
The concept of mitigation banks requires discussion at the
Washington level to assure uniformity of Agency policy concerning
this issue. Mitigation banking should be considered only if a
project meets the three-pronged test given above.
Up-front mitigation should be encouraged since project permitting
can be contingent upon successful replacement of wetland values
and functions before destruction of existing resources.
4. Wetlands Protection Bill
The Section 404 program is a wetlands regulation which permits
wetland destruction. Given the historic wetland losses, and
continuing losses under the current permitting program (see
Section 2 of this document), it is appropriate to consider a
legislative mechanism to eliminate further losses of important
public resources. We are rapidly approaching the point where
this issue must be addressed. How many more acres of important
wetlands can we continue to lose through the permitting process
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and maintain commercial and sport fisheries, water quality and
other essential wetland functions? What is the minimum, or
optimum, quantity of wetlands necessary to provide these essential
functions? It is probable that the nation is currently well
below optimum acreage of many wetland types.
B. Resource Issues
1. Bottomland Hardwood Wetlands
The conversion of floodplain forests (usually known as bottom-
land hardwoods) to agricultural use by draining, leveeing,
clearing and leveling has resulted in a catastrophic loss of
this natural resource, particularly in the Lower Mississippi
River Valley. These once extensive forests, which occupied
essentially the entire floodplains of most southeastern rivers,
have been reduced from an estimated 23 million original acres
to approximately 5 million acres at present. Projections
indicate that an additional 1 million acres will be lost by
1995. Much of the bottomland hardwoods exist in isolated
tracts surrounded by agricultural lands which were once flood-
plain forests.
These floodplain forests are permanently or periodically
inundated by floodwaters and/or rainwater. Because of the
unique hydrologic regime they are subjected to, a significant
portion of the remaining bottomland hardwoods (60-80%) may be
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considered regulatory wetlands as defined in the Section 404
program (Avoyelles v. Marsh). These wetlands contain a rich
diversity of plant and animal life, provide habitat crucial
in the life cycles of both aquatic and terrestrial organisms,
enhance water quality by purifying floodwaters and agricul-
tural runoff waters, function as floodwater storage and flood
buffering areas where not extensively leveed, and supply
forest products and recreational opportunities.
A number of problems, both environmental and socio-economic,
have resulted from this floodplain development and include:
loss of valuable wetland habitat and wetland water quality
benefits; erosion of rich topsoils; increased stream turbidity
and siltation; pesticides and nutrient contamination of
receiving streams; expensive flood management problems that
result in the requirements for further alteration of natural
systems to provide flood protection; and, coincidentally,
lowering of farm commodity prices. Historically, the process
of draining forested swampland and converting it for agriculture
has gone unchecked. However, due to the array of problems,
the public sector, as well as the involved federal and state
agencies, is faced with unacceptable environmental conditions,
eroding and/or flooded farmland, and enormously expensive
levee and channel maintenance requirements.
Section 404 of the Clean Water Act is not being used effectively
to curtail bottomland hardwood wetland losses. Two main
forces limit the effective use of Section 404 in this regard.
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First, although the Avoyelles decision made clear that
mechanized landclearing (clearing with a "V" blade bulldozer,
and other means which disrupt significant amounts of the
substrate) in wetlands constitutes a dredge and fill activity
subject to regulation under Section 404, thus far the Corps
has not commenced enforcement of dredge and fill regulations
on land-clearing activities except in extremely limited
areas of the judicial district where the Avoyelles decision
was rendered.
Second, geographic jurisdictional determination in bottomland
hardwood wetlands is complicated. The Corps' interpretation
of the wetlands definition and their interpretation of
vegetation, soils and hydrological data typically lead to
a more conservative wetland boundary determination than inte-
pretations of other resource agencies, such as EPA and the
Fish and Wildlife Service. Therefore, the Corps exerts
jurisdiction over considerably less BLH wetlands than EPA
feels should be regulated. The Civiletti opinion granted EPA
the ultimate authority to make these wetland jurisdiction
determinations, but this authority has not been exercised by
EPA due to numerous reasons relating to policy and staff/travel
resources.
Other factors which contribute to BLH conversion include
local and congressional support for federally funded drainage
projects and farm commodity prices, especially for soybeans.
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A specific case which dramatically illustrates the present
fate of BLH wetlands occurs in the Mississippi/Yazoo Basin.
In this area, BLH wetlands have been reduced from 1,514,000
acres in 1957 to a scant 387,000 acres in 1982. Massive
drainage projects in the basin and headwater areas typify the
role that these projects play in wetland clearing. A currently
planned and partially constructed Corps drainage project in
the basin entails a 30-year effort to construct 179 miles of
channel modification, over 200 miles of levees and floodwalls,
and 108 drainage structures. The project is designed to re-
duce flooding on 1,236,000 acres of lands, of which an esti-
mated 227,000 acres are bottomland hardwoods. Project impacts
acknowledged by the Corps in its EIS for this project include
induced BLH wetland conversion to agricultural croplands.
Essentially, this project, while affording flood protection
to existing agriculture, will facilitate the economical
clearing of segments of the 227,000 acres of floodplain
forests.
2. Lack of Section 404 Regulation of Civil Works Projects
Civil works projects result in more direct and/or indirect
destruction of wetlands and water quality degradation than
all other activities covered under Section 404, with the
possible exception of land conversion for agriculture and
silviculture. Even land conversion is largely facilitated
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through Corps-sponsored flood control levee construction or
stream channelization. Navigational access to and within
inter/intracoastal waterways and major port facilities is
maintained through Corps dredging operations. These projects
many times result in highly significant environmental problems.
Although major projects are addressed through the NEPA/EIS
process, this has not provided an adequate mechanism in the
past for EPA to influence the Corps* project priorities and
plans for implementation. A glaring example is the failure
of many Districts to seriously consider deep ocean disposal
of vast quantities of materials routinely dredged for naviga-
tion maintenance. Complicating the issue are the Corps' plans
to significantly deepen and extend present channels which will
generate many additional million cubic yards of dredged material.
Often, the Corps' solution to these problems is fastland creation
for industrial development at the expense of productive, shallow
estuarine waters. Such a solution is clearly contrary to
explicit tenets of the Section 404(b)(1) guidelines.
3. Lack of Suitable Disposal Sites for Dredged Material
Throughout the coastal perimeter of Region IV, there appears to
be a steady and potentially increasing demand for federally
sponsored dredging for maintenance and deepening of navigational
channels. This is resulting in the generation of tremendous
quantities of dredged material. The lack of environmentally
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suitable disposal sites for these materials is a significant
problem. Historically, dredged materials were disposed at
upland sites, used to fill wetlands, or discharged in adjacent
aquatic areas. EPA has discouraged disposal in vegetated wetlands
or in productive aquatic sites and has recommended disposal in
deep ocean waters beyond the shallow, productive coastal zone
when upland sites are unavailable. Problems emerge over the
Corps of Engineers' continued disposal in valuable vegetated
wetlands, destruction of shallow water bottoms through the
creation of spoil islands, and discharges into open estuarine
water areas.
Similar problems with civil works maintenance dredging projects
exist elsewhere. The Cooper River rediversion project in South
Carolina, maintenance and expansion of port facilities in
Jacksonville, Miami, Tampa and Pascagoula, and other civil
works projects are all adversely impacting wetlands and aquatic
resources.
Studies by the Corps show that the technology for ocean disposal
of dredged material exists and that in many cases ocean disposal
is a cost-effective option. EPA should continue to encourage
use of designated ocean disposal sites, designate additional
sites if needed, and encourage the Corps to assure availability
of ocean-going disposal vessels. Discussions with the Corps at
the Headquarters level are needed to emphasize Agency concerns
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and to develop more acceptable options for resolving these
significant problems. The Corps needs to focus greater emphasis
on realistic planning of small-scale projects and on the use of
advanced dredging and disposal technology.
4. Impacts of Surface Mining in Wetlands
One of the major problems in Region IV involves phosphate
and peat mining in Florida and North Carolina. Problems
associated with surface mining in wetlands include destruc-
tion of wetlands, discharge of nutrients to adjacent water-
bodies, and inability to restore large-scale mining sites to
previous wetland conditions. Existing regulations should
provide adequate protection for high value wetlands; however,
we are frequently placed in the position of arguing for
long-term maintenance of a high value ecosystem versus short-
term economic gains from phosphate mining. Suggested solutions
include prohibiting mining of high value wetlands, and per-
mitting mining in wetlands of lesser value contingent upon
demonstrated reclamation and wetland community restoration
success. Demonstration projects are underway in Region IV to
assess the practicability and probability of success of
restoration of these mined wetlands.
Miami Oolite limestone is the only significant construction
material in south Florida, and it is estimated that annual
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demand will approach 33 million tons in 1985. The mining of
limestone typically exchanges natural and stressed wetlands
for large, deep water-filled excavation lakes which are of
questionable value as fish and wildlife habitat. These
excavation lakes traditionally have been characterized as (1)
steep sided with little or no littoral zone, (2) devoid of
organic substrate, and (3) surrounded by a berm with non
contiguous wetlands. In Dade County alone, there are over
120 km^ of limestone excavations (based on 1978 aerial photo-
graphs), approximately 2% of the entire county. In addition,
permit applications from 1978-80, as required by the U.S.
Army Corps of Engineers, were filed for mining another 13 km^
(U.S. Army Corps of Engineers 1981).
5. Rockplowing
Recent wetland surveys in the U.S. indicate that 87% of wet-
lands are lost to agricultural conversion and 97% of these
losses are freshwater wetlands. Rockplowing and the use of
crushed rock as a substrate to grow crops plays a unique and
significant role in the destruction of wetland resources in
south Florida. Several thousand acres of prime East Everglades
sawgrass are threatened with conversion to tomato fields and
citrus/mango groves in the near future.
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6. Cumulative Loss of Wetlands Through Filling Activities
It is estimated by the Corps that 2500 acres of regulated
wetlands within Region IV, largely in the coastal zone, are
destroyed annually by filling operations. Prior to implemen-
tation of the Clean Water Act, wetland losses were far greater.
However, pressures for residential and recreational encroach-
ment into wetlands continue, largely due to the population
shift to the South. The cumulative impact of this continued,
gradual wetland and shallow water destruction is resulting in
losses of important wildlife habitat, fish and shellfish
productivity, filtration of water-borne pollutants and shore-
line protection. Filling wetlands for non-water dependent
activities is clearly contrary to the Section 404(b)(1)
Guidelines and Corps' regulations. A problem arises from
inconsistent application of the Guidelines both within and
among Corps Districts. EPA's ability to influence Corps'
decisions is greatly hindered under the current Memorandum of
Agreement (MOA).
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REGIONAL PROGRAM SUMMARY
Region IV is especially sensitive to the Section 404
program because of several factors:
° Region IV has an estimated 33% of the coastline in
the continental United States.
0 Region IV has a estimated 2.2 million acres of salt-
water wetlands.
0 Region IV has an estimated 33.7 million acres of
freshwater wetlands.
0 Trends over the last several years clearly demon-
strate the nation is losing productive wetlands at
an alarming rate.
° Many states and local communities are dependent on
such wetlands as major elements for their growth and
economy, i.e., recreation, tourism, fishing, hunting,
nature studies, etc.
° Several cities/states are somewhat undeveloped and
view wetland areas as potentially cheap economic
bonanzas to stimulate a sagging economy through
industrial (port development, etc.) and residential
development.
° Especially apparent are private landowners/corporations
in the Mississippi River floodplain area interested
in obtaining federal assistance/subsidies in developing
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agricultural potentials through flood protection pro-
jects that would allow the conversion of bottomland
hardwoods (floodplains) to tillable areas (protected
from floods by dikes) for the production of rowcrops,
soybeans, etc.
Concerned, organized, sophisticated and environmen-
tally aware citizens, who recognize the national
significance of wetland areas, represent a major
constituency in the Region. To them, wetlands play
a major role in their expected quality of life.
They are also aware of the economic burdens involved
in rectifying bad decisions made in the past (e.g.,
restoration of the Kissimmee River floodplain after
an ill advised channelization attempt; cessation of
the Cross Florida Barge Canal after commencement of
construction), and an endless expenditure of financial
resources in attempting to maintain eroding coastlines.
A. General Program Evaluation
The Region has taken a conservative approach to the many
problems relating to this program, an approach that has
balanced our efforts between permitting development in
wetlands and the preservation of significant wetland
areas. Still, the long-range trend appears to favor
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short-range economic gains instead of stewardship of
aquatic resources for future generations. Decisions
which are being made now will inexorably limit future
generations to fewer resource-based alternatives than
would have been possible with a 404 program that is more
environmentally sensitive and aware of the irreversible
nature of permitting the destruction of our nation's
wetlands.
B. External Coordination
We believe our efforts of coordination with the Corps
and other federal, state, and local agencies have been
effective but need to be improved, especially with
Washington Corps offices. Without a basic philosophical
agreement between the two agencies, we will continue to
have major dissensions on specific projects that could
reflect adversely on this Administration.
C. Internal Coordination
We feel that Region IV*s organizational structure, where-
by we have grouped all of the Office of Federal Activities
(OFA) functions under one Assistant Regional Administrator,
has benefited the agency.
Close coordination by staff has eliminated many problems
that surfaced in the past when program elements were
fractured between several organizational units. The
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creation of the position of an Assistant Administrator
for External Affairs, under whom the OFA staff responsi-
bilities for 404, EIS, and Federal Activities are concen-
trated, has proven to be very helpful. In essence, we
have the same program structure, in Region IV.
For the first time, OFA has an identity that supports
its responsibilities. A close relationship between
404, the NEPA-EIS process, and EPA's relationships with
other federal agencies is more likely to result in a
well-cooordinated, overall program than would be possible
under other administrative arrangements. With programs
as controversial and as sensitive as are the OFA programs,
we believe that combining them under one Assistant
Administrator has resulted in optimum staff use and
consistent decision making.
D. Bottomland Hardwoods
Our active presence in the Mississippi River bottomland
hardwood area is an issue that requires careful considera-
tion. To be effective, we must reach a philosophical and
operational agreement with the Corps. Given the present
position of the Corps, it appears unlikely that such is
possible without external influence. If EPA is to carry
out legislative/statutory mandates, we must implement an
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increased effort in making jurisdictional calls and attempt
to persuade the Corps to regulate clearing of bottomland
hardwoods in a cooperative effort with EPA and the Depart-
ment of the Interior. Initially, this may be difficult,
but with Headquarters support we can influence the decisions
being made by the Corps and possibly avoid litigation from
environmental interests concerned because of a lack of
initiative on our part.
E. 404(c) Implementation
EPA has used this tool extremely conservatively. While
Region IV has historically resorted to this approach more
often than other Regions, some of these decisions were due,
in fact, to the Corps' position that the issues involved
in such an action were of a more technical nature than a
policy or national issue (e.g., the denial of elevation of
the Norden project by the Assistant Secretary of the Army
for Civil Works). It should be noted, however, that only
the most controversial projects ever reach a veto stage.
By the very nature of the statute, most disagreements are
resolved at the Regional level. The ineffectiveness of
the MOA with the Corps has, however, significantly reduced
or limited the ability of EPA to resolve some issues.
Without some change in the Corps' position regarding the
MOA, EPA may well find it necessary to rely increasingly
on the 404(c) process to carry out
its statutory mandates.
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F. Long Range Goals
We have made significant advances in the past year in
developing an effective program. Regretably, most of our
actions have been to respond to other agencies, or indi-
viduals, rather than establishing our own criteria, enforce-
ment programs, and public educational programs to minimize
adverse environmental impacts. Improvements are needed in
new initiatives to better educate the public about the
role of wetlands in restoring and maintaining the chemical,
physical, and biological integrity of the nation's waters,
the national objective of the Clean Water Act. While EPA
has consistently placed wetlands protection as a high agency
priority effort, the overall effectiveness of the program is
rather low. More enforcement actions relating to illegal
filling operations, an increased effort in bottomland hard-
woods clearing operations (with Corps' cooperation), and
a stronger agency wetlands policy statement and commit-
ment are needed to improve effectiveness. A serious look
at existing resource constraints is also required.
The single, most compelling constraint against an effec-
tive program, however, is the basic unwillingness of the
Corps to give adequate consideration to comments of EPA,
and other federal resource agencies, in evaluating
whether to issue permits or not. Until our philosophical
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differences are ameliorated/ or until statutory improve-
ments are made to give EPA greater authority in the 404
permit process, we believe the program will continue to
be essentially ineffective in preventing the loss of
wetlands resources. While major, large, projects may
receive some attention, hundreds of smaller permit
actions will continue to result in significant, cumulative
wetland losses that can only adversely affect the nation's
environment.
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