Louisiana, especially in the coastal area, do not meet the §404 test for U.S. waters. Therefore, 

 we will assume that most Louisiana coastal areas meet this test and forgo the very technical legal 

 arguments surrounding the current controversy over §404 jurisdiction in "adjacent" and "isolated" 

 wetlands. 



A marsh management plan which involves the discharge of dredged or fill material into U.S. 

 waters, such as would be involved with earthen dams and levees, will require a §404 permit. This 

 is in addition to a §10 permit if the structure is to be constructed in waters defined as navigable 

 for §10 purposes. The EPA is given the power to "guide" the Corps in its permitting of disposal 

 sites for dredged or fill material by §404(b) and has done so in the §404(b)(l) guidelines (40 C.F.R. 

 §230.1 to §230.80). These guidelines provide substantive criteria for the Corps to use in evaluating 

 proposed disposal sites, including certain mandated requirements. The EPA may veto the 

 permitting of specified disposal sites if it finds that there would be "an unacceptable adverse effect 

 on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding 

 areas), wildlife, or recreation areas" (33 U.S.C. §404(c)). The EPA has rarely used this veto 

 authority but recent cases indicate that the EPA may take a more active role in this area in the 

 future (Bersani v. Robichaud, 850 F. 2d 36 (2nd Cir. 1988). 



In cases where the discharge of material is not intended as fill but has the effect of changing 

 the character of the disposal area to dry land or raising the level of a non-navigable water bottom, 

 a permit would be required from EPA under §402 of the Clean Water Act rather than a §404 

 permit (33 C.F.R. §323.2(k), 49 C.F.R. §122.2). This is the result of different definitions of "fill" 

 material used by the Corps and EPA in their respective regulations. EPA's definition is apparently 

 used so they can regulate discharges that would not be regulated under the Corps' definition of 

 fill. Section 402 of the Clean Water Act would also regulate discharges of any other pollutant. 

 There are some exceptions for agricultural purposes such as agricultural return flows (33 U.S.C. 

 §1342(1)(1)). 



Under the Fish and Wildlife Coordination Act (16 U.S.C. §662(a)) the USFWS, the NMFS, and 

 DWF are given authority to comment and make recommendations on proposed alterations to any 

 stream or other body of water by a Federal agency or under Federal permit or license. Such 

 consultation is mandatory and while the commenting agencies do not have veto authority, their 

 comments are required to be, and are, given consideration by the Corps. Furthermore, where 

 feasible, their recommendations are required to be implemented as part of the project to maintain 

 "maximum overall project benefits" and wildlife conservation and enhancement (16 U.S.C. §662(b)). 

 This does not mean that the comments will necessarily be reflected in the permit conditions. In 

 addition, under the memoranda of understanding discussed in the preceding section, the Federal 

 agencies have the authority to request elevation if their comments and suggestions are not acted 

 upon by the Corps. Thus a proposed marsh management project could be modified or possibly 

 denied by the permitting agency (in this case the Corps) in response to the comments and 

 recommendations of the various agencies. At the very least, considerable delays in the permitting 

 process will likely occur as a result of adverse comments from the commenting agencies. This is 

 because although the Corps has the authority to make the ultimate permitting decision and override 

 the recommendations of the commenting agencies it may withhold its permit decision while 

 attempting to bring about an agreement between the adverse parties. 



Another Federal statute that could affect marsh management activities is the Endangered Species 

 Act (ESA) (16 U.S.C. §§1531-1543). This law protects species of animals and plants that have 

 been listed as endangered or threatened. Federal agencies are required to carry out their activities, 

 including licensing and permitting, in such a manner that gives very strong consideration to 



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