Ch. 4— Wetland Programs That Affect the Use of Wetlands • 71 



• construction or maintenance of farm or forest 

 roads, or temporary roads for moving mining 

 equipment, where such roads are constructed 

 and maintained in accordance with best man- 

 agement practices to assure that flow and cir- 

 culation patterns and chemical and biologicsd 

 characteristics of the navigable waters are not 

 impaired, that the reach of the navigable waters 

 is not reduced, and that any adverse effect on 

 the aquatic environment will be otherwise min- 

 imized;* and 



• congressionally approved projects that have 

 filed an environmental impact statement 

 (EIS).5 



In addition to these exemptions, a large number 

 of activities fall under general permits. General per- 

 mits are promulgated to increase the manageabili- 

 ty of the 404 program at nationwide, regional, and 

 State levels for activities deemed by the Corps to 

 have minor impacts on waters of the United States. 

 Persons conducting such activities need not apply 

 for individual permits; however, in many cases, 

 they are expected to follow specified practices to 

 minimize further the impacts of their actions. As 

 of late 1981, the Corps had issued 374 general per- 

 mits, which has reduced the number of permit 

 applications by an estimated 60,000 to 90,000 

 annually. 



The 404 program also regulates certain geo- 

 graphic areas with less stringency than other areas. 

 Prior to the 1982 regulatory changes, activities in 

 wedands that are not linked to a tributary system, 

 above the headwaters of tributary streams (above 

 a point where the mean annual streamflow is less 

 than 5 cubic feet per second (ft'/s)), or less than 

 10 acres in surface area did not require individual 

 permits as long as certain environmental safeguards 

 were complied with. The 1982 regulations ex- 

 panded these exempted areas to include any isolated 

 wetland regardless of size. Subsequent proposals 

 published on May 12, 1983, reinstated this limita- 

 tion. 



Several Federal agencies besides the Corps have 

 roles in the implementation of the 404 program. 

 The Environmental Protection Agency (EPA), 

 NMFS, and FWS review permit applications and 



'Clean Water Act, sec.+04(f)(l)(A)-(D). 

 ^Clean Water Act, sec.404{r). 



provide comments and recommendations on wheth- 

 er permits should be issued by the Corps. EPA has 

 the authority to veto any application or overrule 

 any disposal site designated on a permit reviewed 

 by the Corps if it finds project impacts unaccept- 

 able. It also develops criteria for discharges and 

 State assumption of the 404 program. 



Under memoranda of agreement (MOA) for- 

 merly in effect between the Corps, FWS, and 

 NMFS, either NMFS or FWS representatives could 

 request "elevation" of a permit for review at up- 

 per levels in the agency if there is disagreement 

 about whether or not a permit should be granted 

 by a district engineer. Though only infrequently 

 carried out, elevation could greatly lengthen the 

 permitting process, and resource agencies could use 

 the threat of elevation to gain concessions from per- 

 mit applicants. New MOAs signed in mid- 1982 

 greatly restrict the power of FWS and NMFS to 

 elevate permits, in particular by making elevation 

 subject to concurrence by the Assistant Secretary 

 of the Army (Civil Works), the head of the Corps. 



As discussed below, States also have a role in the 

 404 program. States veto permit applications by 

 denying certification through section 401 of CWA 

 and may administer portions of the 404 program 

 if they meet criteria established by EPA. Twelve 

 States are evaluating this possibility of assuming 

 404 responsibilities and four have assumed partial 

 responsibility for the program on a trial basis. In 

 general, most States neither have the capability nor 

 the desire to assume sole responsibiity for regulating 

 wetland use without additional resources from the 

 Federal Government; some States would be reluc- 

 tant to do so even with resources. 



In line with administration objectives to reduce 

 the regulatory burden on industry and to increase 

 the role of the States, the Corps revised many of 

 its administrative procedures in 1982. Among other 

 changes already mentioned, the normal permit- 

 processing time was limited to 60 days for typical 

 projects, 90 days for controversial projects. The use 

 of general permits was expanded to include all (and 

 not some) isolated waters and headwater areas. 

 Statewide general permits are being used to transfer 

 additional permitting responsibility to States. Six- 

 teen environmental organizations sued the Corps 

 in December 1982 on the basis of many of these 



