172 ' Wetlands: Their Use and Regulation 



for individual permit review. Discharges of dredged 

 or fill material in these areas may occur without 

 the need for specific authorization from the Corps. 

 Before the 1982 changes, these areas included: 



• wetlands adjacent to nontidal rivers and 

 streams located above the headwaters (head- 

 waters being defined as less than 5 cubic feet 

 per second (ft^/s) average annual flow); 



• natural lakes and adjacent wetlands under 10 

 acres that are not part of a surface or river 

 stream, or fed by a river or stream above head- 

 waters; and 



• isolated wedands not part of a surface tributary 

 system to interstate or navigable waters. 



The 1982 changes (9) broadened these permits 

 to encompass all isolated wetlands (removing) the 

 10-acre limit. Several States, opposed to nationwide 

 permits, have denied 401 certification for certain 

 permits. In its May 12, 1983, proposed regulatory 

 changes,' the Corps reinstated the 10-acre limit. 



Nationwide permits have been criticized on var- 

 ious grounds. First, some sources claim that the 

 Corps has no authority to exempt areas, as opposed 

 to activities, from coverage; some States have sued 

 the Corps on these grounds. 



Second, discharges of dredged and fill material 

 under nationwide permits are supposed to meet the 

 following criteria: they cannot threaten endangered 

 species or be discharged into a component of a State 

 or National Wild and Scenic River System; they 

 must be free of more than trace amounts of toxic 

 pollutants; and fills must be maintained to prevent 

 erosion and other nonpoint sources of pollution.* 

 Discretionary authority, regional conditioning, and 

 other measures also improve permit effectiveness. 

 However, various parties contend that nationwide 

 permits prevent the 404 program from stopping or 

 mitigating destruction of much wedand acreage (9). 

 Because there is little monitoring of activities for 

 compliance, neither point of view could be verified 

 with documented evidence. 



Third, the Corps does not regulate activities oc- 

 curring in headwater areas when waterflow is less 

 than 5 ft'/s, a standard that has been criticized as 

 being inexact and injurious to wetlands, especially 



^Federal Register, vol. 48, No. 93, 

 •Clean Waler Act, 323.4-2(b)(l-4). 



pp. 21, 466-21, 476. 



in areas of seasonal rainfall and in areas with low 

 relief (e.g., Atlantic coastal plain). Higher relief 

 areas subject to intense development pressure (e.g., 

 the lowland creeks of western Washington) are also 

 of concern with respect to the 5-ft'/s standard. 



In areas with seasonal rainfall, wetlands may or 

 may not be covered by individual permits, depend- 

 ing on whether mean or median flow is used to de- 

 fine the 5-ft'/s boundary. Also, in areas with low 

 relief, the 5-ft'/s boundary is difficult to determine 

 and Ccui be changed artificially by diverting stream- 

 flows in areas with an existing network of drainage 

 canals. 



Corps policies for determining the 5-ft'/s bound- 

 aries vary among districts, depending on the avail- 

 ability of hydrologic information. More detailed in- 

 formation provided by applicants has been used to 

 change a jurisdictional determination made by the 

 Corps in at least one case in California (3). 



Activities taking place in wetlands upstream of 

 the 5-ft'/s limit for individual permit jurisdiction 

 that might impact wedands include, among others, 

 depositing fill for a variety of reasons, including 

 urban development, instream dredging, peat min- 

 ing, and agricultural conversions. Also, such up- 

 stream activities may reduce flows downstream so 

 that the 5-ft'/s boundary moves progressively down- 

 stream, exposing new areas to coverage under na- 

 tionwide permits. 



Finally, some isolated wetlands are only covered 

 by a nationwide permit. According to the OTA case 

 studies, isolated wedand types that experience con- 

 troversial regulation under the nationwide permit 

 include vernal pools, isolated mountain wetlands, 

 pocket marshes, and closed basins (including diked 

 areas) in California (3); pocosins and bays of North 

 and South Carolina (9); swamps of southern New 

 Jersey (6); and wetlands of the prairie-pothole re- 

 gion (2); and Nebraska (4). 



Regulations allow the district engineer discretion- 

 ary authority to require individual permits in areas 

 covered under nationwide permits. This authority 

 has been used in a few cases. For example, at the 

 request of FWS and after discussions with the local 

 governments, wildlife agencies, conservation 

 groups, and others, the Los Angeles District of the 

 Corps agreed to accept discretionary authority for 

 the vernal pools of San Diego County because of 



