70 • Wetlands: Their Use and Regulation 



tain the chemical, physical, and biological integri- 

 ty of the Nation's waters."' The Corps views its 

 primary function in carrying out the law as protect- 

 ing the quality of wafer; habitat and other wedand 

 values, although considered in Corps decisions 

 about projects, are usually of secondary concern. 

 In contrast, Federal resource agencies, such as the 

 U.S. Fish and Wildlife Service (FWS), the Envi- 

 ronmental Protection Agency (EPA), the National 

 Marine Fisheries Service (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. 



The Corps uses three general criteria for eval- 

 uating permit applications in a "public interest 

 review:" 



• the relative extent of the public and private 

 need for the proposed structure or work; 



• the desirability of using appropriate alternative 

 locations and methods to accomplish the ob- 

 jective of the proposed structure or work; and 



• the extent and permanence of the beneficial or 

 detrimental effects that the proposed structure 

 or work may have on the public and private 

 uses to which the area is suited. 



It is unclear what consideration would be given 

 to cumulative impacts under new regulations pro- 

 mulgated in 1982, which still include language 

 recognizing that such impacts often result in ma- 

 jor impairments of wetland resources.^ 



Until the 1982 changes, regulations stated that 

 no permit would be granted for activities that in- 

 volved the alteration of wetlands identified as im- 

 portant "unless the benefits of the proposed altera- 

 tion outweigh the damage to the wetlands resource 

 and the proposed alteration is necessary to realize 

 those benefits." The district engineer's determina- 

 tion of the necessity of the alteration must be based 

 on whether the activity is "primarily dependent on 

 being located in, or in close proximity to, the aquat- 

 ic environment or whether practicable alternative 

 sites" are available. Permit applicants must sup- 

 ply sufficient information on the need to locate the 

 project in the wetland and on the availability of 

 alternate sites.' The 1982 revisions to the Corps 



regulations eliminate the clause that the proposed 

 alteration be necessary to realize benefits. 



The assertion of regulatory jurisdiction of the 

 Corps under the 404 program has changed over 

 time, and further changes presently are being de- 

 bated. Originally, jurisdiction was restricted to nav- 

 igable waters, narrowly defined, and covered rela- 

 tively few wetlands. A series of court decisions, es- 

 pecially the 1975 decision in Natural Resources 

 Defense Council v. Callaway, expanded the scope 

 of coverage to include virtually all waters of the 

 United States, including most if not all wedands.* 

 However, congressional amendments to CWA and 

 Corps regulations implementing the act have set 

 limits to the jurisdiction of the 404 program. 



The 404 program currently covers activities re- 

 sulting in dredged and fill material discharges, with 

 the following exemptions specified in the 1977 

 amendments to CWA: 



• normal farming, silviculture,** and ranching 

 activities, such as plowing, seeding, and cul- 

 tivating; minor drainage; harvesting for the 

 production of food, fiber, and forest products; 

 or upland soil- and water-conservation prac- 

 tices; 



• maintenance, including emergency reconstruc- 

 tion of recently damaged parts of currendy 

 serviceable structures such as dikes, dams, 

 levees, groins, riprap,*** breakwaters, cause- 

 ways, bridge abutments or approaches, and 

 transportation structures; 



• construction or maintenance of farm or stock 

 ponds or irrigation ditches, or the maintenance 

 of drainage ditches; 



• construction of temporary sedimentation basins 

 on a construction site, but excluding placement 

 of fill material into navigable waters; 



'Clean Water Act, sec. 101(a). 

 'Clean Water Act, sec. 320.4(b)(3). 

 'Clean Water Act, sec. 320.4(b)(4). 



'On July 25, 1975, the Corps of Engineers published revised regula- 

 tions redefining "navigable waters" to include; "coastal waters, wet- 

 lands, mudflats, swamps, and similar areas; freshwater lakes, rivers, 

 and streams that are used, were used in the past, or are susceptible 

 to use to transport interstate commerce, including all tributaries to 

 these waters; interstate waters; certain specified intrastate waters, the 

 pollution of which would affect interstate commerce; and freshwater 

 wetlands, including marshes, shallows, swamps and similar areas that 

 are contiguous or adjacent to the above described lakes, rivers and 

 streams, and that are periodically inundated and normally character- 

 ized by the prevalence of vegetation that requires saturated soil con- 

 ditions for growth and reproduction." 



"Tree farming 



••'Shoreline protection usually composed of broken stones. 



