Federal Water Pollution Control Act Amendments 
of 1972 
The Federal Water Pollution Control Act Amend- 
ments were enacted with the objective of restoring and 
maintaining the quality of the Nation’s waters 
through regulation of the release of pollutants at 
the point of origin. Section 404 of the FWPCA 
establishes a permit program, administered by the 
U.S. Army Corps of Engineers, to regulate the 
discharge of dredged or fill material into “navigable 
waters.” Wetlands had been the major repository for 
these materials. 
The Corps continued to restrict the coverage of 
the new Section 404 permit authority to the defini- 
tion of “navigable waters” which it had adopted 
under the Section 10 program of the Rivers and 
Harbors Act. A suit, brought by the Natural Re- 
sources Defense Council and the National Wildlife 
Federation, resulted in a decision requiring the Corps 
to institute a dredge/fill permit program in all the 
“waters of the United States,” as defined in the 
FWPCA—an interpretation much broader than 
“navigable waters” under the original definition.* 
In interim final regulations published in 1975, the 
Corps defined navigable waters * to include 
“Coastal waters, wetlands, mudflats, 
swamps, and similar areas; freshwater 
lakes, rivers and streams that were used 
in the past or are susceptible to use to 
transport interstate commerce, including 
all tributaries to these waters; certain 
specified intrastate waters, the pollution 
of which would affect interstate commerce; 
and freshwater wetlands, including 
marshes, shallows, swamps and similar 
areas that are contiguous or adjacent to 
the above described lakes, rivers and 
streams, and that are periodically inun- 
dated and normally characterized by the 
prevalence of vegetation that requires sat- 
urated soil conditions for growth and re- 
production.” 
This definition was sustained in subsequent court 
decisions.*? 
The U.S. Army Corps of Engineers’ gradual ex- 
pansion of its permit authority, first in the scope of 
review of permit applications, and later on the 
waters to which it applies, was not a linear pro- 
gression. In 1975, the Corps issued a press release 
which included an announcement that Federal per- 
mits may be required by the rancher who wants to 
enlarge the stock pond, or the farmer who wants to 
deepen an irrigation ditch or plow a field, or the 
81 NRDC vy. Callaway, 392 F. Supp. 682 (D.D.C. 1975). 
®2U.S., Army Corps of Engineers, op. cit. note 84, p. 37124. 
93 U.S. vs. Holland, 373, F. Supp. 665 (M.D. Fla., 1974) et seq. 
mountaineer who wants to protect land against 
storm erosion. 
Opposition to the enlarged Corps’ permit program 
from agricultural interests was swift. The Secretary 
of Agriculture, Earl Butz, further raised the spectre 
that “millions of people” might be fined and im- 
prisoned. Suspicions of the Section 404 program 
within the agricultural community remain today and 
are reflected in several legislative proposals before 
the 94th and 95th Congresses to exclude most agri- 
cultural and forestry operations from coverage by 
the permit program. 
The Corps proposed to implement the expanded 
charter under the FWPCA in three stages: Stage one 
would cover traditional navigable waters and nearby 
wetlands—those areas which were covered by the 
Section 10 program under the Rivers and Harbors 
Act. Stage two expanded coverage to primary tribu- 
taries, navigable streams, and all lakes, beginning 
in September 1976. The third and final phase began 
in July 1977, extending coverage to all remaining 
waters. 
The operational definition of the areas covered by 
the Corps’ permit programs, which were issued in 
the final regulations on July 19, 1977, include all 
“waters of the United States” as specified in the 
FWPCA, and distinguishes the Section 404 dredge 
and fill permits from the dam and construction per- 
mits required for navigable waters in the Rivers and 
Harbors Act. 
There have been two responses to the outcry that 
greeted the prospect that ordinary farming activities 
would be subject to a Corps of Engineers permit: 
First, the Corps has instituted a “general permit 
program” authorizing minor discharges for which 
individual permits are not needed, e.g., shore pro- 
tection, highway projects, logging roads, erosion con- 
trol, minor buried pipeline crossings, boat ramps, 
mosquito ditches, bulkheads, highway maintenance, 
culverts and other stream crossing structures, fishing 
reefs, summer dams for water conservation, and 
trenching.** Second, the Corps announced the issu- 
ance of “nationwide permits,” which exempt certain 
smaller water bodies and certain types of discharge 
from the individual permit requirement. 
Congress recently reviewed the current Corps per- 
mit program dealing with dredge or fill materials. 
In the 94th Congress, the House of Representatives 
adopted an amendment to the FWPCA that pro- 
posed to restrict the coverage of the permit program. 
The Senate adopted a different version; the two 
94U.S., Environmental Protection Agency, Fact Sheet, “Imple- 
menting Section 404 of P.L. 92-500,” spring 1977, p. 2. Although 
initially misunderstood by many, the present program does not 
- regulate normal farming, ranching, and forestry practices that 
do not involve discharges of dredged or fill materials into waters 
of the United States. Thus, the program does not apply to such 
activities as ~lowing, seeding, cultivating, and harvesting for 
the productio: »>f food, fiber, and forest products. 
IV—44 
