Ch. 7— The Effects of the 404 Program • 151 



• In specific permit decisions or in general, par- 

 ties seeking to change the program hold that 

 development values outweigh the benefits of 

 natural wetlands. Employment, balance of 

 payments, energy supply, and so forth are con- 

 trasted to the less quantifiable benefits of wet- 

 lands. Development values are held to be of 

 national importance, while wetland values 

 may be seen as having only local applica- 

 bility.'^ 



• Wetlands also may be contrasted to other lands 

 in terms of their environmental benefits. For 

 example, while some environmentalists see 

 wedands as the most vcduable type of undevel- 

 oped area, others prefer upland environments. 

 Many State resource agencies support schemes 

 that create upland environment for nonwet- 

 land game species. 



In summary, it is argued that, at most, section 

 404 should cover only wetlands of clear benefit to 

 society. There should be no presumption that all 

 wetlands are valuable. Secondly, a more explicit 

 balancing of the values of conversion with the values 

 of preservation of wetlands should be made. Some 

 proposals would reverse the presumption of weUcUid 

 value to a presumption of development value and 

 would hold that unless an application can be dem- 

 onstrated to injure the wetland, or even more nar- 

 rowly, water quality, the application should be 

 granted without the imposition of modifications. 



In contrast, defenders of the program argue that 

 all wetlands are valuable, albeit to varying extents. 

 A presumption of value therefore is appropriate and 

 necessary to reverse what some view as a disastrous 

 rate of wedand conversion. Under treaties, conven- 

 tions, and agreements, the United States has public 

 trust responsibilities for resources, including mi- 

 gratory birds, anadromous fishes, and threatened 

 and endangered species. Destruction of upland en- 

 vironment to protect wedands is the result of a lack 

 of comprehensive planning and poor coordination 

 between agencies rather than an inherent flaw of 

 the 404 program. 



The July 1982 revisions changed the strength 

 with which the presumption of wedand value is ap- 

 plied, i.e., by removing the provision that wetland 

 alterations must be necessary to realize project ben- 



"Pairish and Morgan, op. cit., p. 79. 



efits. The presumption that "wetlands are vitcil 

 areas ..." was changed to "some wetlands are 

 vital areas ..." (emphasis added). 



Program Administration 



The administration of the 404 program has been 

 criticized by a number of sources for three reasons: 



• Those planning to conduct activities in wedand 

 areas, especially individuals and small firms, 

 often are unaware of or confused by program 

 requirements. There often is uncertainty 

 whether a particular area is a wedand. Defini- 

 tions of wetlands used by State and Federcd 

 agencies often differ and may be difficult for 

 nonspecialists to use to verify whether their 

 land is covered by a regulatory program. For 

 example, many plcint species are found in both 

 wedands and nonwedands. Determinations of 

 whether wetland species are "prevalent" in 

 an area under consideration cam be controver- 

 sial. There is much desire that the Corps pub- 

 lish easy-to-use guidelines on how to identify 

 wetland areas. 



• Some firms claim that the modifications im- 

 posed by Federal agencies are unreasonable — 

 e.g., that the activity applied for is not overly 

 impacting wetlands or water quality — or that 

 the firm's own planned mitigation practices 

 are adequate, and there is no need for the ad- 

 ditional mitigation often required by Federal 

 agencies (9). 



• In the eyes of many permit applicants, delays 

 resulting from agency permit processing seem 

 unreasonable. Requests for additional infor- 

 mation about projects often are seen as unnec- 

 essary. Some Corps districts are also thought 

 to be unwilling to take a strong role in resolv- 

 ing disputes if any local. State, or Federal 

 agency has any objections to the proposed de- 

 velopment. Permit applicants and agencies are 

 left to fight out problems among themselves, 

 a situation seen as favoring agencies (10). On 

 the other side, defenders of the progrcim argue 

 that while some exceptions may exist, the mod- 

 ifications required and the amount of time 

 taken by Federal agencies have not been un- 

 reasonable considering the need for caution in 

 dealing with project impacts. 



