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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — June 1976

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Corps Confirms Policy Against "Unnecessary" Development in Wetlands

In a decision1 of national importance, the Army Corps of Engineers has denied two applications from a large land developer for dredging and filling more than 2,000 acres of mangrove swamps at Marco Island, Florida. The Corps has thus dramatically signalled its willingness to apply strictly its own recently developed policy of protecting the nation's wetlands from unnecessary destruction. Deltona Corporation, the developer, has been constructing the Marco Island residential community for more than ten years, and many lots in Big Key and Barfield Bay, the two proposed filling sites, have already been sold to members of the public. Despite Deltona's protests that to deny the permits at this stage of the project's construction would be to change the rules in the middle of the game, the Chief of Engineers, Lt. Gen. William C. Gribble, found that the proposed filling would constitute an unnecessary and unacceptable adverse impact on this aquatic resource. Gribble therefore determined that the applications must be denied in view of overriding national factors in the public interest, including the Corps' own wetlandspolicy and the statutory purposes of the Federal Water Pollution Control Act Amendments of 1972 (FWPCA). A third application to complete the filling of approximately 100 acres in Collier Bay was granted, however, because nearly all the mangrove swamps at this third site had already been altered by previous illegal filling.

Gen. Gribble's decision is all the more noteworthy when contrasted with the Corps's initial reluctance2 to assume its expanded regulatory responsibilities under §404 of the FWPCA,3 which essentially extended the agency's jurisdiction over dredge and fill activities from only those areas traditionally subject to the navigational servitude under §10 of the Rivers and Harbors Act of 18994 to all "waters of the United States." Only after being ordered by a federal court5 did the Corps issue Interim Final regulations6 implementing this expanded authority and stating the agency's wetlands policy, and even then only after protracted negotiations with the Environmental Protection Agency as to the proper shape of the program. The Corps' firm adherence to this enlightened policy less than a year later was thus a welcome surprise to the environmental groups that had been fighting to halt the Marco Island development for a number of years, and to other Corps watchers who were glad to see the agency return to the trail it began to blaze with its denial of fill permits solely on environmental grounds in the landmark case of Zabel v. Tabb.7

Florida Denied Adjacent Coastal State Status in Gulf Deepwater Ports Decision

Secretary of Transportation William Coleman refused on March 25, 1976, to designate Florida and Mississippi as "adjacent coastal states" under the Deepwater Port Act of 1974,1 thereby effectively denying those states a right to delay or to veto the Secretary's ultimate decision on the applications of Louisiana Offshore Oil Project (LOOP), Inc., and SEADOCK, Inc., to construct and operate deepwater port facilities off the coasts of Louisiana and Texas.2 Instead, the Secretary promised to "give the fullest consideration" to concerns expressed by the states of Florida and Mississippi about possible adverse environmental impacts to their coastal areas from oil spills caused by the two ports.3

LOOP and SEADOCK submitted applications on December 30, 1975—one year after enactment of the Deepwater Port Act and less than two months after promulgation of regulations implementing the statute—in which they sought licenses to construct and operate single point mooring facilities in 110 feet of water, 18 miles off the Louisiana coast (LOOP)4 and 26 miles off the Texas coast (SEADOCK).5 The proposed facilities would be connected to shore by large-diameter underwater pipelines6 and would open the United States to very large crude carriers (VLCC's), popularly denoted supertankers.

Recent State Wetlands Cases: The Continuing Battle Over the Proper Scope of Regulation

Controversies involving the propriety of regulating activities on privately-owned wetlands and coastal marshes have increasingly supplied grist for the judicial mill in the form of land use and takings cases. Private development of marshes, induced by the attractively low land capital costs, must continually buck governmental regulation fashioned to preserve our remaining wetlands. In the past few years, the resulting decisions have run the gamut, from upholding regulations that allow virtually no use of private marshes to striking down any restrictions on wetlands alterations.

The ecological and economic value of wetlands, both coastal and inland, has only recently received widespread recognition.1 Wetlands are among the most productive of all environmental areas: it has been estimated that one acre of marsh produces 10 tons of organic matter per year, compared with one-and-one-half tons produced by a wheat field of the same size.2 Coastal wetlands also blunt the erosive action of ocean waves and serve as natural water pollution control facilities. Inland wetlands act as flood control basins and groundwater recharge zones. Marshes provide fish-breeding grounds: recent figures indicate that they support two-thirds of the commercially valuable fisheries on the East and Gulf Coasts.3 Despite recent regulatory efforts, however, centuries of neglect have allowed the destruction of nearly 50 percent of the wetlands existing at the time of America's colonization,4 mainly by navigation dredging, filling for residential and commercial development, and agricultural drainage.

Implementing §7 of the Endangered Species Act of 1973: First Notices From the Courts

In the first two appellate decisions1 interpreting the Endangered Species Act of 1973,2 the Fifth and Eighth Circuit Courts of Appeals recently reiterated the Act's placement of responsibility on all federal agencies to ensure that their actions do not jeopardize the continued existence of endangered forms of wildlife. The rulings, which expressly acknowledge the mandatory nature of these duties imposed on federal agencies by §7 of the Act, promise to stimulate more vigorous oversight of federal activities that may jeopardize endangered species or their habitat. The decisions send out confusing signals, however, as to the Interior Department's3 role vis-à-vis other agencies in determining under §7 when a particular federal action or project jeopardizes the continued existence of an endangered species, and exactly what subsequent administrative action is necessary to prevent such harm. Thus, the decisions leave unsettled important structural aspects of the federal regulatory program for protecting endangered forms of wildlife from the detrimental impacts of federally authorized or funded activities.

Section 7 of the Endangered Species Act of 1973 resembles §102 of the National Environmental Policy Act (NEPA) in its broad application to federal actions and in the potential magnitude of its impact on federal activities. But unlike NEPA, which some federal judicial circuits have interpreted to impose only procedural obligations, §7 unequivocally imposes a substantive duty on federal agencies by directing them, "in consultation with" the Secretary of Interior, to take any measures necessary "to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of such endangered species and threatened species or result in the destruction or modification of habitat of such species which is determined by the Secretary of Interior . . . to be critical."4