Ch. 7— The Effects of the 404 Program • 149 



In addition, it is very difficult to estimate what 

 conversion rates would be without the program. Al- 

 though efforts are being made to reduce duplica- 

 tion between State and Federal programs, substan- 

 tial duplication exists in some States, increasing 

 costs to applicants in various ways including, for 

 example, in added filing fees and in time spent in 

 preparation and discussion of applications. Permit 

 applicants must sometimes explain their projects 

 to different sets of governmental personnel or en- 

 dure one agency denying a permit after another has 

 approved it. Whether these drawbacks are war- 

 ranted depends on how the results of duplication 

 are judged. Many observers, including many States 

 where duplication is present, believe that the posi- 

 tive general results of duplication outweigh the dis- 

 advantages to applicants, such as increased assur- 

 ance that violations missed by one level of govern- 

 ment will be dealt with by another. In addition, 

 duplication is less common than lack of duplica- 

 tion — the 404 program is the only available means 

 of wedand protection in many areas of the country. 



Congressional Intent 



Some sources contend that the current jurisdic- 

 tion of the Corps under the 404 program, the 404 

 program's presumption in favor of wetlands, and 

 its protection of wetlands for reasons other than the 

 narrow grounds of water quality, were not intended 

 by the Congress when the Federal Water Pollution 

 Control Act was passed and amended. '^ In support 

 of these contentions, the following arguments are 

 made: 



• Section 404 of the Clean Water Act (CWA) 

 does not mention wedands. Wedands are men- 

 tioned in the report supporting the 1977 

 amendments to the CWA. It also is argued 

 that Congress originally intended historically 

 navigable waters to be regulated. Certain 

 Federal court decisions and agency discretion 

 in rulemaking, rather than congressional ac- 

 tion, have expanded the program into its cur- 



"For example, Pacific Legal Foundation, op. cit., pp. 8-9; Gary 

 E. Parish, J. Michael Morgan, "History, Practice and Emerging Prob- 

 lems of Wetlands Regulation: Reconsidering Section 404 of the Clean 

 Water Act," Land and Water Law Review, vol. 17, No. 1, 1982; 

 Washington Legal Foundation, "The Feds: Even Dry Land is 

 Wetlands," 1982. See also statements by Assistant Secretary of the 

 Army Gianelli in National Journal , Mar. 6, 1982, pp. 412, 413. 



rent form. This extension is held to constitute 

 unwarranted Federal involvement in land-use 

 decisions. 



• The appropriateness of regulating wetlands 

 that do not conform to popular definitions of 

 swamps, marshes, and so forth is especially 

 controversial. Wetlands that are only infre- 

 quendy under water or that are the byproduct 

 of manmade activities (e.g., drainage ditches 

 or structures) have been the subject of several 

 battles between the Corps and developers (8). 

 Regulation of Alaskan tundra, playa lakes, and 

 several other specific types of areas as wetland 

 also is controversial. 



• Because section 404 has obvious deficiencies 

 in the protections it offers to wetlands, as ex- 

 plored later in this report, it can be argued that 

 it should not be seen as a wetland-protection 

 statute. If Congress had wished to protect wet- 

 lands, it would have written more explicit lan- 

 guage to that effect. 



• The intent of Congress in passing CWA was 

 to safeguard water quality, narrowly inter- 

 preted to refer to water pollution. If wetlands 

 are to be protected under the act, it is argued, 

 this protection should only be extended when 

 the water quality benefits of wetlands are en- 

 dangered. Further, it is believed that only in- 

 terstate water quality benefits of wetlands 

 clearly fall under the purview of the act. 



• The current mode of operation of the 404 pro- 

 gram is held to conflict with more clearly ex- 

 pressed congressional intent to encourage agri- 

 culture and other types of development activ- 

 ities. 



Opposing these contentions, environmentalists 

 and other sources have argued that Congress has 

 strongly recognized wetland values and has at least 

 implicitly approved the current scope of the pro- 

 gram by not excluding wetlands, adopting a nar- 

 row navigable-waters standard, or restricting the 

 program to water quality, when it passed amend- 

 ments to the act in 1977. Parties favoring the cur- 

 rent geographic scope of the program also can point 

 to language in the legislative history of the act call- 

 ing for a broad interpretation of its scope. Environ- 

 mentalists also believe that the objective of CWA — 

 to "restore and maintain the chemical, physical, 

 and biological integrity of the Nation's waters" 



