Chapter 8 



Limitations of the 404 Program 

 for Protecting Wetlands 



CHAPTER SUMMARY 



There are fundamental differences in the way 

 Federal agencies and various special interest groups 

 interpret the intent of section 404 of the Clean 

 Water Act (CWA). The U.S. Army Corps of Engi- 

 neers views its primary function in carrying out the 

 law as protecting the quality of water. Although 

 wetland values are considered in project reviews, 

 the Corps does not feel that section 404 was de- 

 signed specifically to protect wedands. In contrast, 

 the Fish and Wildlife Service (FWS), the Environ- 

 mental Protection Agency (EPA), the National Ma- 

 rine Fisheries Service (NMFS), and environmen- 

 tal groups contend that the mandate of CWA 

 obliges the Corps to protect the integrity of wef- 

 lands, including their habitat values. 



In terms of comprehensive wedand management, 

 404 has major limitations. First, in accordance with 

 CWA, the 404 program regulates only the dis- 

 charge of dredged or fill material onto wetlands. 

 Projects involving excavation, drainage, clearing, 

 and flooding of wetlands are not explicitly covered 

 by section 404 and not usually regulated by the 

 Corps. Yet such activities were responsible for the 

 vast majority of inland wedand conversions between 

 the mid-1950's and the mid-1970's. Rarely have 

 these activities been halted or slowed because of 

 Federal, State, or local wetland regulations. 



Second, the Corps does not have adequate re- 

 sources to regulate activities effectively in "all 

 waters of the United States." Instead, the Corps 

 uses "general" (or nationwide) permits for isolated 

 waters and headwater areas. Because there are few 

 application or reporting requirements for activities 

 within areas covered by general permits, the Corps 

 has limited regulatory control over the use of wet- 

 lands covered by general permits. 



Third, several administrative problems presendy 

 limit the program's effectiveness. These problems 

 include significant variations in the way different 

 districts implement the 404 program, the lack of 

 coordination between some districts and other Fed- 

 eral and State agencies, inadequate public aware- 

 ness efforts, and the low priority given monitoring 

 and enforcement. 



Finally, Federal water projects planned and au- 

 thorized by Congress prior to environmental pro- 

 tection policies of the last dozen years are generally 

 not considered to pose a significant threat to wet- 

 lands, even though they may be exempted from 404 

 requirements. However, projects authorized 10 to 

 15 years ago that are now being undertaken often 

 cause significant impacts to wetlands. 



INTRODUCTION 



There is widespread agreement that the 404 pro- 

 gram has major limitations in terms of providing 

 comprehensive wetland protection. As stated by 

 William R. Gianelli, Assistant Secretary of the 

 Army (Civil Works), before the House Committee 

 on Merchant Marine and Fisheries on section 404 

 of CWA, August 10, 1982: 



It is important to point out that wetlands sub- 

 ject to section 404 can be destroyed in a number 

 of ways without any requirement for a Corps per- 

 mit. They can be destroyed by excavating, drain- 

 ing, flooding, clearing, or even shading without the 

 need for a Corps permit as long as those activities 

 do not include the discharge of dredged or fill ma- 



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