106 



Regulation 



The Clean Water Act (CWA) section 404 permit program regulates the discharge of dredged or 

 nil material into "navigable waters of the United States, which includes adjacent wetlands. 33 

 IJ.S.C. 1344(1972). The program is jointly administered and enforced by the U.S. Army Corps of 

 Engineers (Corps) and the United States Environmental Protection Agency (EPA). The Corps has the 

 primary permit issuance authority. The CWA authorizes the Corps to issue individual and general 

 permits. 



The individual permit process under section 404(a) requires the Corps to apply a broad-based 

 'pubic interest" review test. This test balances a variety of factors rangine from economic to energy 

 considerations. The Corps must also ensure that the permit complies with EPA's detailed 

 environmental criteria--the section 404(b)(1) guidelines. 40C.F.R. 230(19911. 



Section 404(b)(1) of the CWA requires the EPA to establish guidelines that specify where and 

 under what conditions dredged or fill material can be discharge lawftjily. 33 U.S.C. 1344 (b)(1). The 

 practical alternatives test is one component of the section 404(b)(1) guiaelines. 



The practical alternatives test prohibits the discharge of dredged or fill materials to waters of 

 the United States, including wetlands, if there is a "practicable alternative to the proposed discharge 

 that would have less adverse impact on the aquatic ecosystem, orovided that the alternative docs not 

 have other, more adverse environmental impacts.' 40 C.F.R. 230. 10(a)(1991) 



Under section 404(c), Congress eranted EPA the right to veto Corps permit actions if the 

 discharge would result in unacceptable adverse effects on "municipal water supplies, shellfish, 

 fishing areas, wildlife or recreation areas." 



The second avenue for approval of discharges is authorized by section 404(e). 33 U.S.C. 

 1344(e) (1972). Here, a proposed discharge mav fall under one of thiny-six general permits. 



The federal wetland delineation manual is the Corps' primary resource in making wetland 

 determinations. In the 1992 Energy and Water Development Appropriations Act, congress mandated 

 that the Corps use the 1987 manual pending resolution of the proposed changes to the 1989 manual. 

 Pub. L. No. 102-104, 105 Stat. 511 (1991). 



MO As/Executives Orders 



Memorandum of Agreement (MOA) Between the Department of Army and the Environmental 

 Protection Agency Concerning Federal Enforcement for the Section 404 program of the Clean Water 

 Act (Jan. 19, 1989) (1989). Under this accord, the Corps retains primary responsibility for matters of 

 jurisdiction, that is, determining whether wetland reeulations apply. 



The 1990 Memorandum of Agreement (MOA) on mitigation between the Army Corps of 

 Engineers (Corps) and the Environmental Protection Agency (EPA) provided new guidance for wetland 

 mitigation 55 Fed. Reg. 9210 (1990). 



The MOA is the first joint guidance issued. It is used by the Corps and EPA to determine the 

 type and level of mitigation necessary for compliance with the guidelines. 



llie MOA gives wetland a higher priority than other aquatic areas. The Corps agreed that, as 

 to wetland, it will seek to achieve a goal of "no overall net loss of values and functions." 



In one of the most significant sections of the MOA, it adopted the Council on Environmental 

 Quality's (CEO) definition of mitigation, 40 C.F.R. 1508.20 (1991), which is avoiding, minimizing, 

 and rectifying impacts; reducing impacu over time, and compensaiinc for impacts, summarized in ine 

 MOA as avoidance, minimization, and compensatory mitigation. The MOA then went further than 

 CEQ by requiring that mitigation measures be applied in the sequence set forth in the CEQ regulation. 



Executive Order No. 11990, titled, "Protection of Wetlands," although not applying to private 

 work done under federal permit with no federal funding or assistance, does direct tnat each agency 

 shall take action "to minimize the destruction, loss or degradation of wetlands, and to preserve and 

 enhance the natural and beneficial values of wetlands." It further directs that work conducted or 

 funded by a federal agency shall "to the extent permitted by law avoid undertaking or providing 

 assistance for new construction located in wetlands unless ""there is no practicable alternative to such 

 umstruction" and "the proposed action includes all practicable measures to minimize harm to wetlands. 



Executive Order ^3o. 11988, dealing with protection of floodplains, similarity requires written 

 agency justification for a project proposed to be located in a tloodplain, a statement indicating whether 

 the action conforms to applicable state or local floodnlain protection standards; and a list of alternatives 

 amsidered. Unlike Executive Order No. 11990, this one reaches federal permit issuance as well as 

 other federal activities. 



