176 • Wetlands: Their Use and Regulation 



dozers, and the like, even though such jurisdiction 

 has been authorized through court decisions (14). 



CLEARING 



The Corps clarified its position on vegetation 

 clearing in Regulatory Guidance Letter 82- 11. The 

 policy states that the removal of vegetation is not 

 a discharge of dredged or fill material (except in 

 the Western Judicial District of Louisiana). The 

 placement of vegetative matter into waters of the 

 United States requires a 404 permit if the "primary 

 purpose" is "replacing an aquatic area with dry 

 land or changing the bottom elevation of a water 

 body."^ Incidental soil movement related to the 

 planting or removal of vegetation is not considered 

 to be a discharge. However, if accompanied by land 

 leveling that alters topographic features of "waters 

 of the U.S." through significant soil movement, 

 it is subject to section 404. 



The variation in this policy for the Western Ju- 

 dicial District of Louisiana is a result of the court 

 decision for Avoyelle's Sportsmen 's League v. A7ex- 

 ander.^ The court determined that the clearing of 

 bottom land hardwood trees for agricultural use and 

 the removal of their roots by plowing was held to 

 be a discharge of dredged or fill material within the 

 scope of regulation under section 404(f)(2). This 

 section states that, if the discharge of the dredged 

 or fill material is incidental to an activity (except 

 those specifically exempted by sec. 404) designed 

 to bring an area of water of the United States "into 

 a use to which it was not previously subject, where 

 the flow or circulation of navigable waters (waters 

 of the United States) may be impaired or the reach 

 of such waters be reduced," a section 404 permit 

 is required. The U.S. Fifth Court of Appeals in 

 New Orleans recendy upheld the lower court 

 ruling. 



Prior to this decision by the appeals court. Corps 

 leadership held that the district court decision would 

 be adhered to only in the portions of the Corps dis- 

 tricts that are within the Western Judicial District 

 of Louisiana, where the lower court decision was 

 made. The rationale for this position is that the 

 judge's decision in the case was not a broad-based 

 decision attacking the validity of section 404 regula- 



tions (as has been the case in other Federal district 

 court decisions recognized nationally by the Corps), 

 but that the AvoyeOes Sportmen's League case was 

 an action to force the Corps to regulate (under sec- 

 tion 404) the specific activities occurring on the 

 specific tract involved. Also part of the rationale 

 is the idea that, in a similar situation, a judge in 

 another Federal judicial district might decide dif- 

 ferently. 



Actual implementation of this vegetation-remov- 

 al policy in the Western Judicial District of Loui- 

 siana is also being criticized. These criticisms relate 

 to the issues discussed previously regarding the 

 Corps' interpretation of water quality. Although 

 404 permits are required, they are generally being 

 issued because significant incremental water quality 

 degradation relative to existing levels cannot be ade- 

 quately demonstrated (12). 



EXCAVATION 



Drainage of wetlands by excavation can seldom 

 be accomplished without direcdy or incidentally dis- 

 charging dredged or fill material into the wetland 

 area. However, the Corps rjurely regulates drainage 

 that occurs during the conversion of wedands to 

 agricultural or urban use. 



Dis trict Implem en ta. tion 



Because of the nature of the Corps' organization, 

 there is a great deal of variability in the manner 

 in which the 404 program is implemented among 

 the semiautonomous districts. Of the 33 States that 

 described weak inland wetland protection in re- 

 sponse to OTA's questionnaire, 7 said that the 404 

 program is ineffective in providing additional cov- 

 erage. Most of the problems were related to Corps 

 resources and attitudes. Several States commented 

 that some districts are hampered by lack of man- 

 power and funding — for monitoring of violations, 

 for instance. In many cases, only a few field per- 

 sonnel are available to cover large areas.* 



The Corps would agree with this assessment of 

 manpower/funding constraints. After the 1975 

 court decision requiring the Corps to expand its jur- 

 isdiction, the Corps requested additional funding 



»3 CFR, sec. 323. 2(m). 



H73 F. Supp. 525 WD. La., 1979. 



'States commenting on Corps resources include Alaska, Vermont, 

 and V^yoming. 



