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Agency Policies 

 EPA 



Section 404 authorizes a special permit program to control dredge and fill operations. It makes 

 the Secretary of the Army responsible for issuing such permits. But the Secretary and the EPA 

 Administrator are Jointly responsible for setting the guidelines by which permits are to be judged. 



EPA's guidelines are often considered the driving force in the Corps permit process. These 

 guidelines, which were issued in 1980, state that 'no discharge of dredged or Till material shall be 

 permitted if there is a practicable alternative to the oroposed discharge which would have less adverse 

 impact on the aquatic ecosystem" 40 C.F.R.230.1O(a} (1980). EPA is involved in the 404 permit 

 program in other important ways, too. For example, EPA controls what areas can be listed as suitable 

 di.<iposal sites and can prohibit certain materials from being discharged at an approved site on certain 

 grounds. Permits issued under Section 404 expire at the end of five years. 



The land use control trend becomes apparent particularly when reviewing EPA decisions made 

 pursuant to its section 404(c) authority. To substantiate a veto under section 404(c), 33 

 U.S.C.1344(c)(1988), EPA must find unatteptable adverse effects on municipal water supplies, 

 shellfish beds and fisherv areas, wildlife, or recreational areas. 



EPA first published rules implementing section 404(c) on October 9, 1979 - some seven years 

 after pas.sage of the Act. These rules included reference to a prior set of section 404(b)(1) guidelines, 

 which EPA said set forth not only the criteria for permit issuance by the Corps, but also "the 

 substantive criteria bv which the acceptability of a proposed discharge is to be judgea" for purposes of 

 section 404(c). 44 Fed. Reg. 58,076(1979). Late die following year, EPA puWished new section 

 404(b)(1) guidelines without amending its section 404(c) regulatioa<;. 45 Fed. Keg. 85,336 (Dec. 24, 

 1980). 



EPA has since interpreted section 404(c) and these guidelines to provide a single environmental 

 imperative which is applied only after the Corps' "public interest" review has determined that the 

 project is on balance, socially beneficial. 



Under section 309(a) of the CWA, the EPA is empowered to issue administrative orders in 

 response to wetland violations. 33 U.S. C. 1319(a) (1986). 



Department of Interior 



FWS 



The Fish & Wildlife Service recognizes the definition of mitigation provided by the Council of 

 Environmental Quality that includes a logical sequence of steps: (1) avoiding the impact, (2) 

 minimizing the impact, (3) rectifying the impact, (4) reducing or eliminating the impact over time, and 

 (5) compensating for the impact as a last resort action Further, the Service's mitigatiori policy 

 established a concept of Resource Categories with designation criteria for each category, and mitigation 

 goals for each category. 



COE 



The Act gives the Corps permitting authority under section 404(a), 33 U.S.C.1344fa)(1988) 

 with the obligation to consider the criteria promulgated by EPA pursuant to section 404(b), 33 

 U.S.C.1344(b)(1988). 



To comply with the court ruling in f^RDS v. Callaway, the Corps expanded the jurisdictional 

 reach of the section 404 program from the traditional concept of navigable waters to one wmsistent 

 with other CWA programs. 



Department of Agriculture 



SCS 



The Soil Conservation Service is charged with delineating wetland under the swampbuster 

 provision of the Farm Act They use the 1987 Wetlands Delineation Manual during this process. 



