Ch. 8— Limitations of the 404 Program for Protecting Wetlands • 175 



CORPS PERFORMANCE 



As described elsewhere in this report, the 404 

 program has protected wedands in many areas. 

 Evaluations of the performance of different Corps 

 districts by sources consulted by OTA varied great- 

 ly, however. Some districts were singled out by 

 States for being outstanding in their implementa- 

 tion of the program, while some others were con- 

 sistently criticized, especially for lack of action.* 

 This lack of action may be a result of unclear reg- 

 ulatory policies and guidance established by the 

 Corps leadership in Washington, D.C., or ineffec- 

 tive implementation of policies at the district level. 

 Monitoring and enforcement also are important be- 

 cause no regulatory program can be effective with- 

 out adequate monitoring of compliance with regula- 

 tions and enforcement of sanctions against violators. 



Regulatory Policies 



Three major aspects of Corps policy are criticized 

 with respect to the degree of protection provided 

 to wedands under the 404 program: interpretation 

 of the intent of section 404, interpretation of inter- 

 state commerce, and jurisdiction over incidental 

 discharges related to clearing and excavation. 



Interpretation of the Intent of Section 404 



The extent to which section 404 can be used to 

 protect biological systems is at the heart of the con- 

 troversy over the Corps interpretation of water 

 quality. The objective of CWA is to protect the 

 chemical, physical, and biological integrity of the 

 Nation's waters.' The interpretation of biological 

 integrity is the major issue. Broad interpretation 

 of the concept of biological integrity and the ob- 

 jective of CWA would include protection of wet- 

 land habitat values. Federal resource agencies and 

 environmental groups believe that the mandate of 

 CWA obliges the Corps to protect the integrity of 



•For example, "The C.O.E. (Corps) offers minimal protection to 

 wetlands with the 404 Program. The degree of concern and quality 

 of the 4-04 Program varies with each C.O.E. District Office. For ex- 

 ample, the Omaha C.O.E. District appears not to be concerned about 

 protecting anything, and runs an inefficient program; while the Salt 

 Lake City Regional Unit of the Sacramento District Office is very 

 active and concerned about all the activities" (Wyoming). 



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



wetlands, including their habitat values, and not 

 just the quality of the water. 



The Corps, following a narrower interpretation 

 of CWA, views its primary function in carrying out 

 the law as protecting the quality of water; protec- 

 ting other wetland values is a secondary concern. 

 The Corps does, however, consider fish and wildlife 

 habitat values under its general public interest re- 

 view that is part of the overall balancing process 

 used to determine whether to grant a permit. How- 

 ever, habitat values are not afforded any special 

 status over other factors that are also considered 

 in the public interest review except to the extent 

 that Corps regulations state that the unnecessary 

 alteration or destruction of important wetlands 

 should be discouraged. 



Interpretation of Interstate Commerce 



The Corps interpretation of the scope of inter- 

 state commerce issues that arise when a district en- 

 gineer considers whether to use discretionary au- 

 thority and to require individual permit review for 

 an isolated wedand has been criticized as too restric- 

 tive. One source stated that the Corps leadership 

 is pressing districts to apply section 404 only where 

 interstate commerce issues, narrowly defined, are 

 involved. In response, some districts are not con- 

 sidering impacts on migratory waterfowl from fill- 

 ing of inland wetlands and are only sparsely regu- 

 lating such activity.* Other aspects of interstate 

 commerce that are not considered but could pro- 

 vide greater opportunities for wetland protection 

 under section 404 include water withdrawal for in- 

 terstate industry, crop production, visitation by 

 interstate and international visitors, mining and oil 

 extraction (regardless of whether the activity is 

 wetland-dependent), and land development for in- 

 terstate purchases (3). 



Jurisdiction Over Incidental Discharges 



In the past, the Corps has been generally reluc- 

 tant to exert authority over land-clearing and ex- 

 cavation activities that involve discharges into wet- 

 lands from the drippings of dragline buckets, bull- 



'Califomia response to OTA's questionnaire. 



