10 • Wetlands: Their Use and Regulation 



Federal Programs Discouraging 

 Wetland Conversions 



Federal Regulation — The 404 Program 



Under the River and Harbor Act of 1899, the 

 Corps regulates all activities that could directly af- 

 fect the navigability of rivers and coastal waters used 

 for interstate commerce. In 1972, Congress gave 

 the Corps the responsibility of regulating the dis- 

 charge of dredged or fill material in the Nation's 

 waters under section 404 of the Clean Water Act 

 (CWA). Through this program, the Corps evalu- 

 ates the impacts of proposed development projects 

 on wetlands in light of its review and comments 

 from the Environmental Protection Agency (EPA), 

 the Fish and Wildlife Service (FWS), the National 

 Marine Fisheries Service (NMFS), and the States. 

 If a project's impact on the environment is judged 

 to be significant, the permit application can be 

 denied, the project can be modified to minimize 

 impacts, or the permit applicant can purchase or 

 restore other wetlands to compensate for project im- 

 pacts. EPA also has veto authority over any pro- 

 posed sites for disposing of dredged or fill material. 

 In this way, the 404 program provides broad reg- 

 ulatory authority over wetland use by many types 

 of development activities. 



The Corps initially interpreted the geographic 

 scope of its new authority to include only tradi- 

 tionally navigable waters. However, after a 1975 

 decision by the District Court for the District of Co- 

 lumbia in National Resources Defense Council, 

 Inc. V. Callaway, the scope of the 404 program was 

 expanded to encompass "all waters of the United 

 States." The issue of the Corps' expanded jurisdic- 

 tion was hody debated, but left unchanged in a close 

 vote, when CWA was amended in 1977. Many 

 view this broad authority as a significant extension 

 of the Federal Government's constitutional powers 

 that borders on land-use control; others view it as 

 necessary to protect the public's interests in the 

 quality of the Nation's waters. 



There are fundamental differences in the way 

 Federal agencies and various special interest 

 groups interpret the intent of section 404, which, 

 as stated in the preface to CWA, is to "restore 

 and maintain the chemical, physical, and bio- 

 logical integrity of the Nation's waters" (sec. 



101 [a]). The Corps views its primary function 

 in carrying out the law as protecting the quali- 

 ty of water. Although wetland values are consid- 

 ered in project reviews, the Corps does not feel 

 that section 404 was designed specifically to pro- 

 tect wetlands. FWS, EPA, NMFS, and environ- 

 mental groups feel that the mandate of CWA 

 obliges the Corps to protect the integrity of wet- 

 lands, including their habitat values. 



LIMITATIONS OF THE 404 PROGRAM 



The Corps' 404 program now provides the 

 major avenue for Federal involvement in regu- 

 lating activities that use wetlands; however, in 

 terms of comprehensive wetland management, 

 it has major limitations. 



First, in accordance with CWA, the 404 program 

 regulates only the discharge of dredged or fill 

 material onto wetlands. Projects involving excava- 

 tion, drainage, clearing, and flooding of wetlands 

 are not explicitly covered by section 404 and are 

 not usually regulated by the Corps.* Yet such ac- 

 tivities were responsible for the vast majority of in- 

 land wetland conversions between the mid- 1 950 's 

 and the mid-1970's. Rarely have these activities 

 been halted or slowed because of Federal, State, 

 or local wedand regulations. Without more direct 

 government involvement, the conversion of 

 most inland wetlands is likely to continue 

 unabated. 



Second, the Corps does not have adequate re- 

 sources to regulate activities effectively in all waters 

 of the United States. Instead of case-by-case review, 

 it uses general permits for isolated waters and head- 



*The regulation of wetland draining and/or clearing operations for 

 agricultural purposes is highly contentious and variable among Corps 

 districts. Some conversions involving the discharge of fill material from 

 ditching operations onto wedands are regulated either individually 

 or under general permits. Individual permits are usually issued with 

 few modifications because of difl'iculties in demonstrating adverse water 

 quality and/or cumulative impacts. Some conversions do not involve 

 the discharge of fill material onto wetlands. Others are not regulated 

 due to failure of the Corps' administration and lax enforcement or 

 because the Corps and EPA may use a narrower definition of wetlands 

 than scientists or environmental groups. Alternatively, farmers may 

 convert potential "wedands" in dry years when wedand vegetation 

 is not present or they may drain wedands through ditches on non- 

 wedand areas. In accordance with present Corps policy, the clearing 

 of bottom lands is not generally regulated by most districts, except 

 in a portion of Louisiana as a direct result of a ruling by the Fifth 

 Circuit Court. However, one Corps district has significantly slowed 

 some large-scale clearing operations, although the extent of its jurisdic- 

 tion is controversial. 



