Corps Recasts § 404 Permit Program, Braces for Political, Legal Skirmishes

Frances L. McChesney

Editors' Summary: Section 404 of the Federal Water Pollution Control Act, the Corps of Engineers' dredge and fill permit program, is once again the focus of legislative and administrative reform efforts. Legislative reforms include proposed bills to return the Corps' jurisdiction to traditionally navigable waters and to limit permitting time to 90 days. Administrative reforms have been more concrete. In July 1982 the Corps issued amendments to its regulations in response to the goals of the President's Task Force on Regulatory Relief. It also made substantial changes in memoranda of agreements between the Corps and other agencies, including the Environmental Protection Agency and the U.S. Fish and Wildlife Service, involved in reviewing permits. Environmental groups and some states are alarmed about the possible impacts on wetlands that such changes may allow. The National Wildlife Federation and other groups filed suit last December challenging many of the regulations. In addition, interest in § 404 is heating up on Capitol Hill with hearings to consider the effectiveness of the program.

[13 ELR 10128]

In August 1981, the President's Task Force on Regulatory Relief targeted the Army Corps of Engineers' dredge and fill permit program for reform.¹ This is not the first time § 404 has been under fire; it has undergone several legislative and administrative changes since its inception in 1972 with the enactment of the Federal Water Pollution Control Act (FWPCA),² most accompanied by considerable controversy. Although the trend to date has been to strengthen and expand the program, the Task Force's proposal was, not surprisingly, in the other direction. Dissatisfaction with the current program, voiced since 1977,³ focuses on two major issues — the extensive geographic jurisdiction of the Corps under § 404 and the time required for permit processing. Opponents of the program, such as the American Petroleum Institute (API), the National Ocean Industries Association,⁴ and some state governments,⁵ contend that the unnecessarily burdensome application process, the extensive public comment period, and the elaborate interagency review procedures result in costly delays to industry and frustration to individual property owners without providing benefits to the environment. They also argue that the geographic scope of the program is not only unreasonably broad, broader than Congress intended, but so poorly defined that no one can determine with reasonable certainty whether particular lands are subject to Corps regulation. This difficulty, it is claimed, has in turn interfered with the states' prerogatives in making land use decisions.

Environmental groups and others counter that the § 404 program has significantly reduced the destruction of wetlands without creating unreasonable delays or regulatory [13 ELR 10129] burdens.⁶ They point out that § 404 is the only nationwide federal program designed to protect wetlands,⁷ which are extemely valuable resources both from an ecological and an economic standpoint. Without a strong program, many hundreds of thousands of acres of wetlands, would be destroyed.⁸ And, they contend, the program has worked effectively; it has reduced the destruction of wetlands by one-half — from 660,000 acres per year to 330,000 acres per year in 1981 — without blocking wetland development unreasonably.⁹

Critics have advanced several different approaches to reform. Legislation introduced in the 97th and 98th Congresses would reduce the jurisdiction of the Corps by strictly defining the term "navigable waters," which is now defined broadly,¹⁰ limiting regulation only to those waters, and would limit the time for issuing permits to 90 days. Administrative reforms include the July 1982 amendments to the Corps' regulations, and the Corps' new memoranda of agreement (MOAs) with the Departments of the Interior, Agriculture, Commerce, and Transportation and with the Environmental Protection Agency (EPA), which govern those agencies' role in the permitting process.¹¹ Most recently, EPA has taken steps to amend its dredge and fill guidelines to fulfill the goals of the Reagan Administration to reduce regulatory burdens on agencies and the public. Meanwhile, a turf battle rages between EPA and the Corps over the legal significance of the guidelines.¹²

These changes have not been overlooked by Congress or taken lightly by environmental groups. Several hearings have been held on Capitol Hill to examine Corps officials on the meaning and scope of the changes. In addition, the National Wildlife Federation (NWF) and 15 other environmental groups have joined in a lawsuit challenging several aspects of the Corps' program.¹³

Background

Until 1975, the Corps administered the § 404 program only with respect to waters that met the traditional test of "navigability."¹⁴ In 1975, however, in Natural Resources Defense Council, Inc. v. Callaway, a federal district court ruled that § 404 extended the Corps' jurisdiction not only to traditionally and historically navigable waters but to all waters of the United States.¹⁵ It ordered the Corps to expand its jurisdiction to include all navigable waters, adjacent wetlands, and many isolated wetlands, such as prairie potholes and lakes.¹⁶ Despite many proposed amendments to reduce the jurisdictional reach of § 404, Congress, in the 1977 reauthorization of the Act, did not alter the jurisdictional provisions of the statute.¹⁷ But the regulated community continues to voice its criticism that the statute is too broad and that the Corps does not have sufficient control over the implementation of the § 404 program, making attempts in both the 97th and 98th Congresses to amend the Act.

While some attempted to amend § 404, others pushed for administrative reforms in the permit program. The bulk of the Corps' § 404 permitting regulations were promulgated in 1977, when it asserted jurisdiction over all "waters of the United States."¹⁸ However, both the regulated community and the Reagan Administration have criticized the implementation of the 1977 regulations. Probably the most frequent criticism of the § 404 permitting process is that it takes too much time. Industry groups charge that delays, primarily due to extensive interagency review required by the statute and the regulations, are costly and interfere unnecessarily with development.¹⁹ They also point out that the Corps has not taken sufficient advantage of its authority to issue general permits under § 404(e) of the statute.²⁰ However, the general [13 ELR 10130] permits provision has also been called the "Jekyll and Hyde feature" of § 404.²¹ Critics complain that it is difficult for potential dischargers to determine if they are authorized to discharge and that dischargers are faced with substantial uncertainty in planning since at any time they may be required to get an individual permit.

Critics also argue that the Corps' regulations go further than Congress intended even in the 1977 amendments to the FWPCA, and as a result, the Corps has expanded its jurisdiction unreasonably. There are two major areas of concern. The first involves the definition of wetlands. The Corps' 1977 regulations, which define wetlands as those areas that are "inundated or saturated by surface or ground water … sufficient to support a prevalence of [wetlands] vegetation,"²² are vague and difficult to apply in practice. Whether the Corps may assert jurisdiction over a certain area involves a complicated factual determination that often leads to litigation.²³ This uncertainty can hobble business planning. They also argue that the Corps went too far in defining the "waters of the United States" and should change its definition to reduce its jurisdiction."²⁴ Furthermore, the courts have construed the definition of wetlands liberally and thereby expanded the Corps' jurisdiction.²⁵ The second major concern with the broad scope of the Corps' jurisdiction is that it encroaches on state authority over management of state resources. Through the permitting process, the federal government has placed itself in a position to dictate state land use policies.²⁶

In addition to the jurisdictional and delay problems, many complain that the Corps does not have sufficient control over permit decisionmaking. Several § 404 provisions give EPA authority over much of the program. EPA, not the Corps, is responsible for developing the § 404(b)(1)guidelines, which the Corps must apply to permits.²⁷ EPA has the power to veto any permit it finds would have an adverse impact on fish and wildlife,²⁸ and is responsible for enforcing the program by bringing suit against unpermitted dischargers.²⁹ Finally, EPA has authority for approving state programs for assuming control over § 404 permitting.³⁰

While the Corps must give "full consideration" to the views of the Fish and Wildlife Service (FWS) and other federal and state agencies, some argue that it has unduly deferred to these other governmental agencies. As a result, the Corps has allowed the imposition of unjustified permit stipulations requested by other agencies. Furthermore, the Corps' "public interest review,"³¹ which the API characterized as "vague, indefinite, and bear[ing] little relation to the underlying statute,"³² has been called a tool for "blackmailing" applicants into adopting mitigation measures.³³ The threat of review by higher levelent both the Corps and other federal agencies has also been blamed, not only for creating delay in permit processing, but also for causing applicants to adopt unjustified mitigation measures.³⁴

Legislative Reforms

With the FWPCA up for reauthorization during the 97th Congress, opponents of the program again introduced bills to amend § 404. One of the goals of these bills was to return the Corps' jurisdiction to traditionally navigable waters, i.e., those waters "susceptible to use in their natural condition or by reasonable improvement, as a means to transport interstate or foreign commerce … including all water subject to the ebb and flow of the tide …."³⁵ The bills would further prohibit regulation of waters other than navigable waters under the FWPCA, Rivers and Harbors Act, or any other act.³⁶ The alleged effect of these provisions would be to remove 85 percent of the nation's wetlands from the Corps' regulatory authority, 126 million of the 148 million acres currently covered.³⁷

[13 ELR 10131]

The bills would repeal the provisions allowing states to take over the optional state permit program,³⁸ but would authorize states to request that the Corps regulate waters other than navigable waters. In other words, a state could ask the Corps to apply its dredge and fill program to the state's wetlands and other nonnavigable waters under Corps jurisdiction. Another proposed change would reverse the burden of proof for issuing permits. Under current law, the applicant must submit sufficient information to show that its discharge meets the § 404(b)(1) guidelines.³⁹ Under the proposed bills, the Corps must issue a permit unless it determines that § 404(b)(1) guidelines would be violated.⁴⁰ Finally, the bills would mandate that all permit decisions be made within 90 days.⁴¹

The proposals in the 97th Congress were not enacted, but the attack on § 404 has been renewed in the 98th Congress. One bill is modeled on its predecessors.⁴² Another, yet to be introduced, would in addition to changes proposed earlier, rescind § 404(c), which authorizes EPA to veto permits, and amend § 404(b) to transfer to the Corps the authority for developing what are now EPA's environmental guidelines.⁴³

In light of the cool reception given § 404 bills in the 97th Congress and the renewed concern on Capitol Hill over environmental matters, it is unlikely that the latest proposals will prove more successful than their foreunners.⁴⁴ Certain legislative proposals may achieve some of the lesser changes sought by industry critics.⁴⁵ But the souring prognosis for significant amendments has led the administration to look with renewed resolve to achieving many of the same ogjectives administratively.

Administrative Reforms

In 1981, in response to the Reagan Administration's Task Force on RegulatoryRelief and Executive Order 12291, which requires agencies to conduct a regulatory impact analysis of their major regulations,⁴⁶ the Corps initiated several reforms of the § 404 program. The Task Force had suggested five major targets for reform: (1) to reduce uncertainty and delay in the permit review process, (2) to encourage states to assume control of the § 404 program, (3) to reduce conflicting and overlapping policies, (4) to expand use of general permits, and (5) to clarify the jurisdictional scope of the program.⁴⁷ To implement these goals, the Corps in July 1982 revoked the 1980 proposed regulations and issued interim final regulations making substantial changes to the 1977 regulations.⁴⁸ The Corps also changed and reissued the MOAs and suggested that EPA's § 404(b)(1) guidelines should be advisory policy guidelines, not binding regulations.

The 1982 Regulations

In the 1982 amendments to its rules, the Corps not only achieved many of the regulatory goals sought by the Task Force, but also went quite a way toward obviating the need for many of the proposed amendments to the FWPCA. The new regulations contain at least 25 changes, two of which are considered by the Corps to be particularly significant. One expedites the permit issuing process and the other expands the nationwide permit program.

To reduce delay, the rules require the district engineer to make a decision on most applications within 60 days.⁴⁹ The 30-day public comment period remains the same in the new regulations. However, the district engineer may only extend this period for special circumstances up to 30 days rather than the 75 days as provided in the 1977 regulations.⁵⁰ In addition, the new rules establish a general regulatory policy that applicants are due a timely decision and that the Corps should reduce paperwork and delays.⁵¹ The new regulations also encourage the district engineer to develop joint application review procedures with state and federal agencies whose permit programs overlap the Corps program.⁵² One of the primary causes of delay is the failure of applicants to submit sufficient information in their applications, which often are returned by the Corps as a result. The regulations, in response, added a pre-application consultation procedure for major projects.⁵³

The most controversial change designed to reduce delays is the expansion of the use of general nationwide permits.⁵⁴ Under § 404, the Corps is authorized to issue both individual permits and general permits.⁵⁵ Section 404(e) allows the Corps to issue general permits on a regional or nationwide basis for categories of activities that are substantially similar in nature and cause only minimal individual and cumulative environmental impacts.⁵⁶ General [13 ELR 10132] permits, unlike individual permits, allow anyone to discharge dredged or fill material for specified activities without obtaining a permit if the requirements of the general permit are met.⁵⁷ And under the 1982 regulations, a discharger need not notify the Corps before the discharge of dredged or fill material, nor report the activity later to the Corps.⁵⁸

In 1982 the Corps issued 27 general nationwide permits. These permits fall into three categories: (1) nationwide permits for activities occurring before certain dates,⁵⁹ (2) nationwide permits for discharges into certain waters,⁶⁰ and (3) nationwide permits for specific activities.⁶¹ Of these, the second category, which includes two permits, has been the most controversial. The "headwaters general permit" authorizes discharges into nontidal rivers, streams, and their lakes and impoundments, including adjacent wetlands, that are located above headwaters. The "isolated waters general permit" authorizes discharges into other nontidal waters that are not part of a surface tributary system. These permits eliminate acreage limitations contained in the 1977 regulations, which limited discharges to water bodies smaller than 10 acres.⁶² The effect is to exempt over one million acres of wetlands in Michigan, Minnesota, Wisconsin, and North Dakota from individual regulation.⁶³

One area of concern under the 1977 regulations was that nationwide permits do not take into account state and local needs. In response, the Corps added a provision granting the district engineer discretionary authority on a case-by-case basis to require individual permits and to override a nationwide permit for an entire category or geographic region.⁶⁴

In its 1982 regulations, the Corps made several changes to clarify the scope of its jurisdiction. To promote better federal/state relations, the regulations encourage district engineers to develop joint procedures wherever state agencies have permit programs that overlap the Corps' program. The regulations include a new section noting that EPA may transfer § 404 programs to the states and that the Corps supports such transfers.⁶⁵ They also include a provision to describe and clarify the legislative exemptions to the program under § 404(f).⁶⁶

Although the Corps gave up its interest in changing the definition of "wetlands" in its rules,⁶⁷ it did change the meaning of another key term. It redefined "fill material" to refer to material used for the primary purpose of replacing an aquatic area with dry land,⁶⁸ and left it to EPA to regulate through the national pollutant discharge elimination system permit program smaller-scale discharges.⁶⁹ The Corps also emphasized in its new regulations that it does not have authority to regulate activities that occur subsequent to a permitted dredge or fill activity, since such activities are regulated through other programs.⁷⁰

The 1982 rule changes also reveal an intent to consolidate Corps primacy over the § 404 program. They added a provision that encourages division or district engineers to use alternative procedures for issuing permits, such as letters of permission, that may evade interagency review. The new rules also call for the development of joint procedures with other agencies to reduce duplicative permitting efforts.⁷¹ Another change would affect the influence of other agencies in placing stipulations in permits. The district engineers need no longer give "great weight" to the view of the wildlife agencies in evaluating permits as required in the previous regulations,⁷² and the new regulations restrict the district engineers' authority to require mitigation. The district engineer may only require mitigation conditions if no local, state, or other federal programs or policies exist to achieve the desired result.⁷³ Furthermore, the district engineer may only require mitigation measures that are "directly related" to the project.⁷⁴

Memoranda of Agreement

A second step in streamlining the § 404 process was taken by the Corps in July 1982 when it renegotiated the MOAs required by § 404(q) of the FWPCA.⁷⁵ Under that section, the agreements are expected to minimize "duplicative, needless paperwork, and delays" and "to the maximum extent practicable" ensure that decisions are made within 90 days.⁷⁶ Under the previous MOAs,⁷⁷ if the FWS were to disagree with the district engineer's decision on an application, it could request "elevation," i.e., referral to a higher authority within the Corps. Elevation was automatic on request, and the more significant applications could be elevated step-by-step to a higher level than those with lesser impacts. The new MOAs did away with differences between applications.⁷⁸ They also removed all intervening steps where elevation is requested. Under the new MOAs, elevation is allowed only with the approval of the Assistant Secretary of the Army, Civil Works. Furthermore, the reviewing agency may not request elevation [13 ELR 10133] solely on the basis of the environmental resource values inquestion.⁷⁹

EPA Guidelines

Under § 404(b)(1), the Corps must evaluate permit applications according to EPA guidelines. The guidelines are binding on the Corps and provide a basis for evaluating the physical, chemical, and biological effects of discharges of dredged or fill material on aquatic resources. Recently, the Corps has proposed to Vice President Bush, as head of the Task Force on Regulatory Relief, changes in the weight that must be given the guidelines. The Corps proposes to make them advisory rather than mandatory in order to "implement fully the task force decisions" and to "attain optimum management efficiency."⁸⁰ EPA strongly opposes the change, and at press time, resolution of the disagreement awaits appointment of the new Administrator of EPA.⁸¹

Reactions to the Reforms

Groups interested in environmental protection, others interested in fish and wildlife protection and management, and some states have expressed alarm at the new reform efforts. In response to claims that the Corps' jurisdiction is too broad, they counter that § 404 is one of the few federal laws that can protect rapidly dwindling wetlands. Moreover, although the states have the option to assume responsibility for the program, few have done so, mostly for financial reasons, and are therefore unlikely to fill the Corps' shoes if its jurisdiction is restricted. In fact, some states have responded by exempting themselves from some of the new and expanded nationwide permits.⁸²

These groups also disagree with the conclusion that the program is unreasonably burdensome or time-consuming. They point to a study prepared for the Corps that concluded that the agencies involved in the review process have become more efficient as the program has matured. The average processing time has decreased from 141 days in 1978 to 120 days in 1981, and processing time for both controversial and noncontroversial projects has decreased.⁸³ Furthermore, the study estimated the delay costs as only 0.7 percent of the total financial value of the controversial projects.⁸⁴ While such groups state that they do not oppose streamlining the process, easing burdens on applicants, and clarifying the roles of the involved federal and state agencies, they express concern that the changes adopted by the Corps go too far, with the result that the program has lost its effectiveness in protecting wetlands. The opposition to the new Corps regulations reached its peak in a recent lawsuit filed by a coalition of environmental groups.

NWF Lawsuit

In December 1982, NWF, joined by 15 other environmental groups, sued the Corps, challenging a number of the 1982 amendments to the regulations as well as other regulatory measures. The complant asserts that six of the 27 nationwide permits expand the scope of the general permit program beyond the bounds set by § 404.⁸⁵ The headwaters general permit and the isolated waters general permit were challenged in part because they are for "categories of water," while § 404(e) authorizes general permits only for activities that are "similar in nature." The surface mining general permit and the categorical exclusions general permit are claimed likely to cause far more than the "minimal individual or cumulative impacts" permitted by § 404(e). Furthermore, no EIS was prepared and the environmental assessment fails to provide sufficient data to adequately determine the impacts of these general permits, in violation of the National Environmental Policy Act.

NWF also challenged several definitions contained in the new regulations. Section 404(f) exempts certain dredge and fill activities from the requirements of § 404, including discharges for the "construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance [but not construction] of drainage ditches."⁸⁶ However, the regulations expand the exemption beyond the statute to include discharges associated with any irrigation facility. "Fill material" is defined to exclude the regulation of discharge of material that in fact "fills" an aquatic area if such filling is not the primary purpose of the discharge.⁸⁷ This definition is alleged by plaintiffs to be inconsistent with EPA regulations.⁸⁸

NWF charged that the regulations severely restrict the authority of Corps engineers to impose conditions in permits that would mitigate the environmental damage of discharges. They claim that it is now highly unlikely that mitigation measures will be imposed in the future.

Other Reactions

The new MOAs have been the most sharply criticized of any of the regulatory changes. Under the old MOAs, the Corps had the ultimate authority to issue a permit, but [13 ELR 10134] other agencies played an integral part in the process by objecting to permits or recommending modifications to mitigate environmental damage. Environmental groups and members of Congress suggest that under the new MOAs, the environmental agencies have been stripped of any meaningful input into the process. The agencies are now only given 20 days to review a project application — hardly enough time, argue critics, for them to do their jobs properly. Moreover, the Assistant Secretary of the Army, Civil Works, now decides whether to grant a request for elevation. Reportedly, since the new MOAs went into effect, requests for elevation usually have been unsuccessful.⁸⁹ While the agencies rarely requested elevation under the old MOAs, the possibility encouraged applicants to accept mitigation measures, which in many cases actually reduced applicant costs. Of the 330,000 acres per year of wetlands protected by § 404, a substantial number is attributed to the interagency review and elevation process. And now, say the critics, that protection is greatly threatened. As of April 15, 1983, the Department of the Interior had requested the elevation and review of 16 permit decisions. The Assistant Secretary of the Army has yet to reverse any of these decisions.

Conclusion

The administrative reforms made by the Corps over the last year have largely achieved the Task Force's goals for the § 404 permit program, although the pending NWF lawsuits casts some doubt about the permanence of the changes. Nevertheless, these changes may reduce the pressure from industry and landowners to cut back on the scope of the program. However, at the same time counter pressure to replace deleted regulatory procedures is building. Armed with evidence from a pending Office of Technology Assessment (OTA) study that the dredge and fill permit program is not as effective in prohibiting much of the destruction of wetlands as hoped, environmental groups may start a new push to strengthen § 404.⁹⁰

Already debate over wetlands protection is heating up on Capitol Hill. Legislative changes other than amendments to § 404 are likely to be considered. Secretary of the Interior Watt has submitted legislation, the Protect Our Wetlands and Duck Resources Act,⁹¹ that would add $25 million to the existing $14 million available for wetlands acquisition and would restrict federal subsidies for wetland development. But several members of Congress think it does not go far enough, and environmentalists complain that the exceptions to the restrictions, which include water resources projects, road construction, and some farming activities, would encompass 90 percent of the subsidized development. Some members of Congress propose to strengthen the basic bill by increasing the funding and by seeking changes in the tax code to encourage wetlands protection. Although preoccupation with budget issues and problems at EPA prevented the 97th Congress from reauthorizing the FWPCA, there may be more success in the 98th Congress and wetlands protection issues are likely to be prominent in this year's debates. In April, the OTA study was the subject of Senate Environmental Pollution Subcommittee hearings. Those seeking a reversal of the Corps' regulatory relief initiatives have strong support by key members of Congress, but the regulated industries, particularly the oil and shipping industries, have strong support as well. And with what now amounts to an all-fronts war on the scope of wetlands protection regulation now raging, it may be some time before the application of the § 404 program is clear.

1. See PRESIDENT'S TAKE FORCE ON REGULATORY RELIEF, ADMINISTRATIVE REFORMS TO THE REGULATORY PROGRAM UNDER SECTION 404 OF THE CLEAN WATER ACT AND SECTION 10 OF THE RIVERS AND HARBORS ACT (May 7, 1982).

2. See Comment, Section 404 Permit Program Survives Legal Challenges, Faces Congressional and Administrative Review, 11 ELR 10233 (1981); Parish & Morgan, History, Practice and Emerging Problems of Wetlands Regulation: Reconsidering Section 404 of the Clean Water Act, 17 LAND & WATER L. REV. 43 (1982).

3. The § 404 regulatory program has existed in its present form only since 1977 when the Corps completed changes to its regulations to implement fully the 1972 FWPCA and when Congress amended the Act by adding more than 15 new § 404 provisions without changing the jurisdictional provisions. See Comment, Corps of Engineers Promulgates Revised Dredge and Fill Regulations, 7 ELR 10193 (1977).

4. See Section 404 of the Clean Water Act: Hearings before the House Committee on Merchant Marine and Fisheries, 97th Cong., 2d Sess. at 59 (1982) (statement of William Manning, Louisiana Land and Exploration Co., on behalf of the American Petroleum Institute and the National Ocean Industries Association) [hereinafter cited as Merchant Marine Hearings].

5. See Merchant Marine Hearings, supra note 4, 124 (testimony of Glenn Akins, Deputy Commissioner, Alaska Department of Environmental Conservation). But see Hearings before the U.S. Department of the Army, Corps of Engineers: Proposed Nationwide Permits, 33 C.F.R. Pt. 330 (June 17, 1981) (written testimony of the Wisconsin Public Intervenor).

6. See Merchant Marine Hearings, supra note 4, 211 (statement of Thomas Tomasello on behalf of the National Wildlife Federation, National Audubon Society, and Environmental Defense Fund).

7. See Babcock, 404 — Strengthened Not Weakened, ENVTL. F., Apr. 1983, at 20. But see Gianelli, Section 404 Reform — A Chance for Good Government. Id. ("Section 404 is not a comprehensive wetlands protection law.").

8. See Office of the Chief of Engineers, Impact Analysis of the Corps Regulatory Program, A Report Submitted to the Regulatory Functions Branch (Nov. 1981) (unpublished) [hereinafter cited as Analysis].

9. Id. at 8. The Analysis concluded that the program has produced a net benefit to the water quality and navigation objectives of the program but has added less than two percent to the total cost of those projects it regulates. Id. at 19.

10. See infra notes 14-16 and accompanying text.

11. See infra notes 75-79 and accompanying text.

12. William Gianelli, Assistant Secretary of the Army, Civil Works, in a letter to Vice President Bush, suggested that the guidelines should be considered advisory only. See Letter from William Gianelli to Vice President George Bush (Mar. 23, 1983). John Hernandez Jr., then Acting Administrator of EPA, also in a letter to Vice President Bush, expressed concern that such a change would seriously undercut the level of environmental protection provided by the § 404 program. See Letter from John Hernandez Jr. to Vice President George Bush (Mar. 22, 1983). Senator John Chafee, Chairman of the Subcommittee on Environmental Pollution and long a supporter of a strong § 404, followed with a letter to Bush supporting Mr. Hernandez' letter but also expressing a greater concern. He stated: "Mr. Gianelli is no longer seeking regulatory reform, he is seeking regulatory relief. This is precisely the type of regulatory excess that is making the public view the Republican Party as anti-environmental." See Letter from Senator John Chafee to Vice President George Bush (Mar. 23, 1983). [The letters are available from ELR (9 pp. $1.75, ELR Order No. A-1024) — Ed.]

13. See infra text accompanying notes 54-64 and 85-88, providing an explanation of the nationwide general permits and a discussion of the lawsuit.

14. See generally Leslie Salt Co. v. Froehlke, 578 F.2d 742, 8 ELR 20480 (9th Cir. 1978).

15. 392 F. Supp. 685, 5 ELR 20285 (D.D.C. 1975).

16. See 47 Fed. Reg. 31810-11 (1982) (to be codified at 33 C.F.R. § 323.2).

17. Congress did add several exemptions from the § 404 permit program, including exemptions for normal faming, silviculture, and ranching activities, maintenance of structures, construction of ditches, and construction of farm or forest roads. 33 U.S.C. § 1344(f), ELR STAT. 42143. It also included provisions for state assumption of the permit program. 33 U.S.C. § 1344(g)-(l), ELR STAT. 42143-44.

18. See 40 Fed. Reg. 31324 (1975). The Corps phased in the changes over a two-year period and they were not completely adopted until 1977. See 47 Fed. Reg. 31832, 33 C.F.R. § 330.3(a). In 1980, the Corps under the Carter Administration proposed changes that would fully implement the 1977 amendments to § 404.45 Fed. Reg. 62732 (1980). However, these were rescinded before final promulgation. 47 Fed. Reg. 31794 (1982).

19. Section 404 of the Clean Water Act: Hearings before the Senate Subcommittee on Environmental Pollution of the Committee on Environment and Public Works, 97th Cong., 2d Sess. 150 (1982) (statement of Roger Herrera, Sohio Alaska Petroleum Co.) [hereinafter cited as Environment Hearings].

20. 33 U.S.C. § 1344(e), discussed at text accompanying notes 54-64.

21. See Parish & Morgan, supra note 2, at 58.

22. 33 C.F.R. § 323.2(c) (1982).

23. See, e.g., United States v. DeFelice, 641 F.2d 1169, 11 ELR 20505 (5th Cir. 1981); Bayou Des Familles Development Corp. v. U.S. Corps of Engineers, 541 F. Supp. 1025, 13 ELR 20055 (E.D. La. 1982); Bayou St. John Improvement Ass'n v. Sands, 13 ELR 20011 (E.D. La. 1982); Avoyelles Sportsmen's League v. Alexander, 511 F. Supp. 278, 11 ELR 20321 (W.D. La. 1981); Buttrey v. United States, 11 ELR 20932 (W.D. La. 1981), aff'd 690 F.2d 1170, 13 ELR 20085 (5th Cir. 1982).

24. The Corps has noted that the NRDC v. Callaway decision, 392 F. Supp. 685, 5 ELR 20285 (D.D.C. 1975), does not preclude the Corps from exercising its discretion to define "waters of the United States." See Environment Hearings, supra note 19, at 233-34 (statement of Roger Herrera).

25. See supra note 23. In addition, the courts have generally construed the exemptions to the permit program, 33 U.S.C. § 1344(f), ELR STAT. 42143, strictly. See e.g., United States v. Carter, 12 ELR 20682 (S.D. Fla. 1982); Avoyelles Sportsmen's League v. Alexander, 473 F. Supp. 525, 11 ELR 20315 (W.D. La. 1979).

26. States are given the opportunity to assume control over the dredge and fill permit program, 33 U.S.C. § 1344(g), ELR STAT. 42143, but not one state has yet to do so. The reasons why no state has applied to EPA for delegation include: (1) the criteria set forth in § 404(g)-(k) are difficult to meet and provide for substantial federal oversight; (2) § 404 provides no federal funding, so there is no incentive; and (3) states cannot administer the program in tide waters and other federally navigable waters. See AMERICAN BAR ASSOCIATION, CONCERNING THE USE OF WATER-RELATED LANDS: FLOOD HAZARD AREAS, MUDFLOWS & WETLANDS, at J-3 (1982). The Corps has proposed to grant a statewide general permit to Maine but has been opposed by the Fish and Wildlife Service. See OUTDOOR NEWS BULLETIN, Apr. 8, 1983, at 5. The Corps has also proposed to issue a permit to Massachusetts, but the Executive Office of the Environmental Affairs opposes the permit. See Letter from James S. Hoyte, Secretary of the Executive Office, to William F. Lawless, Chief of Regulatory Branch, Corps of Engineers (Mar. 31, 1983).

27. 33 U.S.C. § 1344(b)(1), ELR STAT. 42142.

28. 33 U.S.C. § 1344(c), ELR STAT. 42143.

29. The Secretary of the Army may bring civil actions for failure to comply with permit conditions, 33 U.S.C. § 1344(s), ELR Stat. 42144, but EPA may bring actions under § 309, 33 U.S.C. § 1319, ELR STAT. 42130, for discharging without a permit in violation of § 301 of the FWPCA.

30. 33 U.S.C. § 1344(g)-(l), ELR STAT. 42143-44.

31. The standard for Corps approval of a dredge and fill permit application is whether it is in the public interest. The public interest factors to be considered include conservation, economics, aesthetics, general environmental concerns, historic values, fish and wildlife values, flood damage prevention, water supply, water quality, energy, and others. See 33 C.F.R. § 320.4(a) (1982).

32. See Merchant Marine Hearings, supra note 4, at 67 (statement of William Manning).

33. See Parish & Morgan, supra note 2, at 63.

34. See Barnett, Streamlining Permit Processing, ENVTL. F., Apr. 1983, at 21.

35. See S. 777, H.R. 393, H.R. 3083, and H.R. 3962, 97th Cong., 1st Sess. (1981). Also see generally, Leslie Salt Co. v. Froehlke, 578 F.2d 742, 8 ELR 20480 (9th Cir. 1978).

36. Id.

37. See Merchant Marine Hearings, supra note 4, at 215 (statement of Thomas Tomasello).

38. 33 U.S.C. § 1344(h)-(l), ELR STAT. 42143-44.

39. 33 U.S.C. § 1344(b)(1), ELR STAT. 42142.

40. See supra note 35.

41. Id.

42. H.R. 1570, 98th Cong., 1st Sess. (1983).

43. The Reagan Administration's Clean Water Act bill does not include amendments to § 404. However, the Cabinet Council on the Environment, headed by Interior Secretary James Watt, reportedly gave the Corps permission to draft Clean Water Act amendments and find "a friend on the Hill" to introduce them. Washington Post, Apr. 11, 1983, at A9.

44. Senator John Chafee (R-R.I.), a supporter of a strong § 404 program, is chairman of the Senate Subcommittee on Environmental Pollution, which has jurisdiction over the Clean Water Act. See supra note 12.

45. These proposals include the recently introduced administration bill, the Protect Our Wetlands and Duck Resources Act. See infra note 91 and accompanying text. Seel also Parish & Morgan, supra note 2, at 77-84, suggesting such alternatives as federal tax incentives, a federal block grant program, and a wetlands bank program to increase protection of wetlands.

46. E.O. 12291, ELR REG. 45035. See Comment, Reagan Orders Cost-Benefit Analysis of Regulations, Confers Broad Powers on OMB and Regulatory Task Force, 11 ELR 10044 (1981).

47. See supra note 1.

48. 47 Fed. Reg. 31794 (1982), 33 C.F.R. pts. 320-330. Although the rules are labeled "interim final rules," they are effectively final and are binding on the agencies. The Corps issued them as interim rules to provide an additional comment period and has made and may continue to make additional changes.

49. Id. at 31819, § 325.2(d)(3). Additional time is allowed if (1) required by law, (2) the case must be referred to higher authority, (3) the comment period is extended, or (4) where information needed to process the permit is not available within the 60-day period. Id.

50. Id. at 31819, § 325.2(d)(2).

51. Id. at 31800, § 320.1(a)(4).

52. Id. at 31800, § 320.1(a)(5).

53. Id. at 31815, § 325.1(b).

54. See NWF lawsuit, text accompanying notes 85-88.

55. 33 U.S.C. § 1344(e), ELR STAT. 42143.

56. 33 U.S.C. § 1344(e), ELR STAT. 42143.

57. Id.

58. 47 Fed. Reg. 31821, 31831, 33 C.F.R. §§ 325.5(c), 330.

59. 47 Fed. Reg. 32132, 33 C.F.R. § 330.3. These permits include activities that occurred before the regulations completely asserted jurisdiction over all waters of the United States, and activities prior to 1968. Id.

60. Id. at 32132, § 330.4

61. Id. at 32132, § 330.5. The third category expands several existing permits, reauthorizes other existing permits, and includes several new permits that cover discharges from outfall structures, small hydropower projects, and others. Id.

62. Id. at 32132, § 330.4(a)(2)-(3).

63. See Corps Completes New Dredge and Fill Permit Changes Which Will Exempt More Water Bodies, LAND USE PLAN. REP., July 26, 1982, at 235.

64. 47 Fed. Reg. 31834 (1982), 33 C.F.R. § 330.7.

65. Id. at 31813, § 323.5.

66. Id. at 31812, § 323.4. See also text accompanying notes 86-88.

67. The Corps initially proposed to replace the term "wetlands" in its regulations with the term "inundated lands." See Environment Hearings, supra note 4, at 205.

68. 47 Fed. Reg. 31811 (1982), 33 C.F.R. § 323.2(k).

69. Id.

70. Id. at 31819, § 325.2(e)(1).

71. Id. at 31819, § 325.2(e)(3).

72. Id. at 31804, § 320.4(c). This requirement has been deleted by the Corps since the regulations were issued in July 1982, but the change has yet to be published in the Federal Register.

73. Id. at 31824, § 325.4(c).

74. Id. at 31821, § 325.4(d).

75. 33 U.S.C. § 1344(q), ELR STAT. 42144.

76. Id.

77. See, e.g., Memorandum of Agreement Between the Secretary of the Interior and the Secretary of the Army (Mar. 24, 1980).

78. See, e.g., Memorandum of Agreement Between the Secretary of the Interior and the Secretary of the Army (July 25, 1982).

79. The Corps has established three criteria for elevation: (1) insufficient interagency coordination at the district level, (2) development of significant new information, or (3) the necessity of policy-level review of issues of national importance.

80. See Letter from William Gianelli, Assistant Secretary of the Army, Civil Works, to Vice President George Bush (Mar. 23, 1983).

81. See Letter from John Hernandez, Acting Administrator of EPA, to Vice President George Bush (Mar. 22, 1983). See also Letter from Senator John Chafee, Chairman of the Subcommittee on Environmental Pollution, to Vice President George Bush (Mar. 23, 1983).

82. See 47 Fed. Reg. 31832 (1982), 33 C.F.R. § 330.4 n.1. In Wisconsin, discharges included in the headwaters general permit and the isolated waters general permit are not authorized. Other states have followed Wisconsin's lead, but not in time to be included in the Federal Register.

83. Analysis, supra note 8, at 6.

84. Id. at 10.

85. See Complaint for Plaintiffs, National Wildlife Federation v. Marsh, No. 82-3632 (D.D.C., complaint filed Dec. 22, 1982) [hereinafter cited as Complaint]. The pleadings in this case are summarized at ELR PEND. LIT. 65755, 65784 (ELR Doc. [864]). In addition, 72 utilities, including Edison Electric Institute, the Phosphate Mining Council, and the National Coal Association, have intervened on the side of defendants.

86. 33 U.S.C. § 1344(f)(1)(E), ELR STAT. 42143.

87. 47 Fed. Reg. 31813 (1982), 33 C.F.R. § 323.4(b).

88. See Complaint, supra note 85, at 65. In addition, plaintiffs challenge three "Regulatory Guidance Letters" that prohibit the district engineers from overriding state and local land use and zoning decisions and allow issuance of "statewide" general permits.

89. Baltimore Sun, Apr. 10, 1983, at A1.

90. See AIR/WATER POLLUTION REP., Apr. 18, 1983, at 143 and Section 404 of the Clean Water Act: Hearings before the Senate Subcommittee on Environmental Pollution of the Committee on Environment and Public Works (testimony of William D. Barnard, Office of Technology Assessment) (Apr. 14, 1983).

91. S. 978, 98th Cong., 1st Sess. (1983). Senator Chafee introduced the bill for Secretary Watt but at the same time criticized the Corps of Engineers' efforts in reducing the effectiveness of § 404 and indicated his intent to introduce further legislation to strengthen Secretary Watt's proposal. 129 CONG. REC. S4136 (daily ed. Apr. 5, 1983).