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methodology. In 1988, the U.S. Court of Appeals for the Second Circuit in Bersani 

 V. Robichaud . 850 F.2d 36 (2d Cir. 1988), cerj. denied 109 S.Ct. 1556 (1989) 

 upheld EPA's interpretation of the "practical alternatives test," under which the permit 

 applicant bears the burden of clearly demonstrating that practical alternatives to the 

 proposed project having less environmental impact do not exist. On February 7, 

 1990, in a Memorandum of Agreement between the Corps of Engineers and the 

 Environmental Protection Agency, the Corps agreed to employ the strict "sequencing" 

 methodology of the EPA in determining whether a Section 404 permit may be issued. 

 Attached to this statement as Attachment 6 is a brief chronology of the history of the 

 evolution of Federal wetlands regulation. 



The Major Problem with the Section 404 Program : 



The evolution of the Section 404 program into a very broad and rigid 

 regulatory program has occurred over the last 17 years without policy guidance from 

 the elected representatives of our nation. The result is the major problem that lies 

 before the Congress today: approximately 75 million acres of privately owned land 

 is being regulated as "wetlands" by two federal agencies, the Corps and the EPA, 

 with the objective of "avoiding" all but the most minor alterations on that land. Some 

 of that land is clearly identifiable by the public as wetlands, while other land can be 

 identified as such by only the most discriminating and highly trained wetlands 

 scientists. The result is a major conflict between landowners and environmentalists 



