23 ELR 10185 | Environmental Law Reporter | copyright © 1993 | All rights reserved

Federal Wetlands Law: Part I

Editors' Summary: No single federal law comprehensively addresses wetlands protection. Rather, federal laws and regulations addressing activities and interests in wetlands have evolved with water law in general, and with other laws, such as those specifically targeting agriculture and coastal zone programs. The result is a complex federal regulatory structure that spreads jurisdiction among EPA, the Army Corps of Engineers, and other federal agencies. This lack of a unified federal approach to wetlands has created uncertainty and frustration for all interested parties, including landowners, developers, corporations, environmentalists, legislators, and state governments. In turn, the uncertainty and frustration have led to interagency clashes over which manual to use for delineating wetlands, and to legislation being introduced in Congress that would unify in one statute the federal government's approach to wetlands. For the time being, EPA and the Corps have agreed to use the 1987 Corps Manual for delineating jurisdictional wetlands. Congress, however, has been unable to pass a comprehensive wetlands law and prospects for such legislation passing in the 103d Congress are unpredictable. Thus, persons interested in wetlands must understand the existing federal approach to wetlands protection.

In this three-part series of Articles, the author comprehensively analyzes the laws and regulations that make up the federal government's approach to wetlands protection. In Part I, the author discusses the history and structure of the Clean Water Act, particularly § 404, which is the main federal statute governing activities in wetlands. She then explores jurisdictional issues of the § 404 program and how wetlands are identified. The author then analyzes what activities are regulated under § 404 and what activities are exempted from the strictures of § 404. Finally, she addresses nationwide and general permits under § 404.

Part II, planned for publication next month, will address individual permits under § 404, enforcement of § 404, judicial review of § 404 wetlands actions, the takings issue, and state § 404 program authority. Part III, planned for publication in June, will address other federal laws that address wetlands, which include programs under the Food Security Act and other coastal zone and natural resource protection laws. Part III will also analyze federal executive orders that pertain to wetlands and include a who's who of federal agencies involved with wetlands, providing pertinent agency descriptions, subdivisions, and addresses.

All three Parts of this Article, along with a subject matter index, a table of cases, and a host of pertinent regulatory documents, will be published in ELR's new Wetlands Deskbook.

Margaret N. Strand is a partner in the Washington, D.C., office of Eckert Seamans Cherin & Mellott. She was formerly chief, Environmental Defense Section, U.S. Department of Justice, where she supervised federal litigation concerning wetlands.

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Introduction

The federal government's approach to wetlands law is highly complicated, for one simple reason. There is no single federal wetlands law. Rather, a number of federal statutes and programs address protection and use of wetlands. Instead of developing a comprehensive wetlands law, Congress has added wetlands provisions to laws that are primarily concerned with other matters. Wetlands provisions are part of federal statutes that address water pollution, agricultural production, fish and wildlife habitat, and certain federal benefit programs. This piecemeal legal structure results in a confusing array of definitions, prohibitions, and policies applicable to activities in or concerning wetlands. This structure also has caused jurisdictional and enforcement problems for the regulatory agencies charged with overseeing the nation's wetlands.

This complex legal structure results from a lack of public consensus regarding wetlands protection. Although there is little scientific debate that wetlands provide ecological benefits, there remains a policy debate over how much legal protection wetlands warrant, particularly when balanced against other public interests.¹

The ecological values of wetlands are often expressed in terms of the benefits to water quality and wildlife habitat, as well as their function in providing a conveyance for [23 ELR 10187] floodwater, as barriers to erosion, and in sediment control.² In addition, wetlands are valued for their aesthetic properties and as recreational sites.³ This primer does not address in detail the scientific and ecological values contributed by wetlands, since these values are accepted underpinnings for most of the federal laws that address wetlands.

However, since wetlands occur on privately owned land, wetlands law arises in the context of the management of private property, which involves balancing the public interest in the ecological benefits of wetlands with the rights of the private property owner. This balance is reflected in laws that allow some destruction of wetlands while protecting against other harmful activities; it is seen in the various federal wetlands acquisition programs; and it is responsible for the emerging law regarding compensation for regulatory takings caused by decisions to protect wetlands. In short, federal laws reflect compromises among important policy interests that compete with wetlands protection.

Further complicating the field of federal wetlands law are the varied activities that cause the loss of wetlands and damage water quality and habitat values provided by wetlands. In a 1991 report, the General Accounting Office (GAO) stated that historically, over 80 percent of past wetlands losses were attributed to the draining and clearing of inland wetlands for agricultural use.⁴ Today, population pressures for land and residential development continue to contribute to the loss of wetlands. Although the annual rate of wetlands loss has declined from about 458,000 acres per year between the mid-1950s and the mid-1970s, it currently remains at approximately 290,000 acres per year.⁵

Existing federal law is not designed to fully abate the loss of wetlands, nor to reconcile all of the competing legal and policy concerns.⁶ The myriad of laws and federal agencies with some responsibility for wetlands is confusing to the regulated public, and often causes expensive delays in private parties' planned activities. Over the years there have been attempts to enact comprehensive wetlands legislation. The bills proposed have attempted to resolve some of the controversial aspects of current federal wetlands law, including how to define and delineate wetlands, establish standards for authorizing or prohibiting the destruction of wetlands, and set criteria for providing compensation to owners of wetlands who cannot develop their property.⁷

This primer describes and explains the federal laws that address wetlands. The primary statute that regulates activities in wetlands is the Clean Water Act (CWA).⁸ Part I describes in detail the wetlands law that has grown up around the implementation of CWA § 404.⁹ In Part II, other federal laws that address wetlands are briefly discussed. Of these other laws, certain programs concerned with agricultural practices and the protection of fish and wildlife habitat have broad impacts on wetlands, while other laws have narrower coverage. Among the laws addressed are the conservation programs of the Food Security Act of 1985,¹⁰ including Swampbuster,¹¹ Sodbuster,¹² conservation reserves,¹³ and wetlands reserves.¹⁴

Other laws discussed include the Coastal Barrier Resources Act¹⁵ and the National Flood Insurance Act,¹⁶ which include prohibitions on federal benefits for certain activities occurring in wetlands. Also discussed are a series of federal wetlands study programs, consultation requirements, and acquisition authorities administered by the U.S. Fish and Wildlife Service (FWS) and other agencies. Under each program, it is important to understand how wetlands are defined, what activities are allowed or prohibited in covered wetlands, and how the law is administered and enforced. Finally, Part III provides specific information and addresses for the federal agencies and offices involved in wetlands regulation.

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Part I. The Clean Water Act § 404 Program

Chapter 1. Background to the Clean Water Act (CWA)

I. Antecedents

Current federal law addressing water pollution is derived from nineteenth century antecedents. Our waterways have always been important routes of commerce, which needed to be maintained for navigation. For example, the U.S. Army Corps of Engineers (Corps) has long been authorized to undertake river and harbor improvements to promote navigation and ensure navigability of our waterways.¹ Section 10 of the Rivers and Harbors Act (RHA) authorizes the Corps to regulate dredging and filling activities in navigable waters,² while § 13 prohibits the deposit of refuse into navigable waters without a permit.³

While the original focus of the RHA was on navigation, the government began using the Act in the 1960s as a tool to control water pollution. Specifically, the government began enforcing the RHA's prohibition against the permitless discharge of "refuse,"⁴ which was broadly interpreted to include the control of industrial water pollution.⁵

At the same time, a number of forces were at work moving the federal government toward enhanced wetlands protection. In 1965, amendments to the Fish and Wildlife Coordination Act⁶ heightened the obligation of federal agencies, such as the Corps, to account for the impacts from their RHA permit decisions on living resources. In 1967, the Secretaries of the Interior and the Army entered into a Memorandum of Understanding (MOU) under which the Corps would consult with the Department of the Interior (DOI) on the fish and wildlife impacts of the RHA's permit applications.⁷ At the same time, the Corps began using its RHA permit program to control water pollution by revising its permit regulations to take into account not only impacts on navigation, but broad factors under the rubric of "public interest review."⁸ In 1971, the Corps' authority to weigh public interest factors in reviewing and denying the RHA's permit applications, including environmental consequences, was upheld.⁹

Other developments also were shaping environmental law. The National Environmental Policy Act (NEPA)¹⁰ was enacted at the end of 1969. In 1970, President Nixon signed an Executive Order (EO) directing the Corps to establish a comprehensive water pollution discharge permit system.¹¹ However, a federal district court in 1971 invalidated this permit program as unauthorized by RHA § 13 and not in compliance with the then newly enacted NEPA.¹² Nonetheless, strong impetus was created for passing the Federal Water Pollution Control Act Amendments of 1972,¹³ which established a comprehensive program of regulations and permits to control water pollution.¹⁴ Section 404, part of the 1972 amendments, has become the principal federal wetlands regulatory authority.

II. The CWA Structure

The 1972 amendments embraced the ambitious task of restoring and maintaining the "chemical, physical, and biological integrity" of the waters of the United States, with a goal of eliminating all pollution discharges by 1985.¹⁵ Congress provided several mechanisms to achieve these lofty goals. The statute authorizes a comprehensive system of regulations and permits to control discharges of pollutants, and prohibits the discharge of any pollutant into waters unless a discharger is in compliance with a permit.¹⁶ The national pollutant discharge elimination system (NPDES) permit program was established to govern water pollution from, as a general matter, "end of the pipe" industrial and municipal sources.¹⁷ Most of the responsibility for administering the regulatory program was vested in the Environmental Protection Agency (EPA). EPA was given authority to establish effluent limitation standards, which would be used to establish permit terms for specific pollutants.¹⁸ EPA was also given administrative and regulatory authority to conduct a variety of water pollution studies and to develop water quality criteria.¹⁹

Congress also recognized that many municipal dischargers would require assistance to construct or improve wastewater treatment facilities to meet permit requirements and, in 1972, established a significant sewage treatment grant program.²⁰ Congress further provided mechanisms for states to assume implementation responsibility for the water permit systems, subject to federal oversight.²¹

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Congress defined "pollutants" in the CWA broadly enough to encompass fill material.²² A separate regulatory and permit regime for fill material was established in § 404.²³ Although most of the CWA is administered by EPA, the Corps asserted two claims to exercise regulatory authority over discharges of fill. One claim was based on the Corps' prior experience administering the RHA, and the other claim was based on the Corps' responsibility for navigational and other dredging. A healthy legislative debate ensued over which agency, the Corps or EPA, should be responsible for the § 404 program. Senator Edmund Muskie (D-Me.), a prime sponsor of the 1972 amendments, was concerned that the Corps might not be as protective of the environment as EPA.²⁴ House members, however, chose to give the Corps lead responsibility over dredge and fill matters. A compromise was reached in conference committee, and § 404 as enacted gave the Corps the authority for issuing permits, subject to oversight by EPA.²⁵

III. Roles for the Corps and EPA Under § 404

The § 404 compromise struck in the 1972 amendments gave the Corps and EPA authorities that compete as much as they complement each other. Permits for the discharge of fill material may be issued by the Corps, after notice and an opportunity for comment.²⁶ However, the substantive water protection criteria that permit applicants must meet are established in guidelines developed by EPA in conjunction with the Corps.²⁷ Although generally referred to as the § 404(b)(1) guidelines,²⁸ EPA promulgated these substantive standards as binding regulations. EPA also has authority to veto the Corps' permits under § 404(c) if it determines that the discharge of fill material would "have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas …, wildlife, or recreational areas."²⁹ EPA's § 404(c) veto authority has been highly controversial in recent years.³⁰ Enforcement authority is also divided between the Corps and EPA.³¹

For most of the permit applications under § 404, the system works smoothly.³² However, the dual authority between EPA and the Corps under § 404 has created uncertainty and confusion with respect to many major projects, and has been the focus of intense controversy at times. In some situations, implementation of § 404 has been dependent on the resolution of conflicts between the Corps and EPA. These are addressed more fully in other sections of this primer.

Both the Corps and EPA conduct most of their § 404 activities in their field offices, rather than at agency headquarters in Washington, D.C. The Corps has 38 district offices, each with a district engineer who is responsible for § 404 permits. EPA has 10 regional offices in which regional administrators (RAs) are responsible for EPA's site-specific CWA duties.³³ EPA has established a public wetlands hotline number for any inquiries related to wetlands: 1-800-832-7828.

The Corps and EPA administer their § 404 responsibilities through several mechanisms. Each agency has promulgated regulations for the § 404 program;³⁴ many of these regulations are discussed in detail in other sections of this primer. The Corps also announces policy for its § 404 program through regulatory guidance letters (RGLs), which provide instruction to district engineers concerning policy matters and interpretations of the regulations. The Corps began regularly publishing unexpired RGLs in 1991.³⁵ Each RGL has an expiration date, generally two or three years after issuance. However, the Corps maintains that expired RGLs provide some guidance regarding the Corps' policy, unless they have been superseded by specific regulations or other RGLs.³⁶ The Corps may also communicate policy to its districts through field memoranda. EPA also supplements its regulations with policy guidance distributed to its regional offices. For example, EPA has developed guidance documents setting forth § 404 enforcement policies.³⁷ EPA and the Corps have entered into several memoranda of agreement (MOAs) to coordinate their respective duties under § 404. EPA and the Corps' MOAs on geographical jurisdiction, mitigation, and enforcement are discussed in other parts of this primer.

In addition to EPA, § 404 provides other federal agencies with an opportunity to comment on proposed Corps' permit decisions. The FWS, for example, is specifically authorized to comment on permit applications.³⁸ The Corps is also directed to enter into agreements with other federal agencies, including EPA, the FWS, the DOI, and the Departments of Agriculture, Commerce, and Transportation, to assure that comments can be presented without delaying the permit review.³⁹ Interagency consultation is addressed later in Chapter 6.

IV. The CWA's Approach to Wetlands

The CWA is built around the principle that the discharge of a pollutant from a point source into waters of the United States is prohibited unless authorized by a permit. Congress established this prohibition to improve the nation's water [23 ELR 10190] quality and thereby protect and propagate fish, shellfish, wildlife, and recreation,⁴⁰ which is referred to as establishing "fishable and swimmable" waters. Although the CWA does not expressly refer to wetlands, case law has uniformly held that wetlands are generally waters of the United States. In addition, wetlands are included as waters subject to the CWA in the Corps' and EPA's regulations. Moreover, the CWA identifies at several places the role of clean water in preserving wildlife habitat.⁴¹ As addressed more fully below, Congress left to EPA and the Corps the task of deciding, through regulations, which waters needed to be regulated to meet the CWA's ambitious goals.

At various times Congress has considered amendments to the CWA to specifically address wetlands. When the CWA was amended in 1977, Congress considered but did not pass wetlands amendments.⁴² In 1987, additional major amendments were made to the CWA without effecting any substantial change to § 404.⁴³ Although Congress considered legislation in both 1991 and 1992 to restructure significantly § 404 and the wetlands regulatory program,⁴⁴ no legislation was passed. Twenty years after enactment of the CWA, there remains considerable disagreement over if and how the law should be revised to specifically address wetlands.

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Chapter 2. What Is a Wetland?: Jurisdiction of the § 404 Program

Individuals confronted with wetlands issues under the CWA must typically answer an initial question — what is a regulated wetland? In the § 404 program, the answer is composed of two parts: deciding whether a wetland exists, based on physical characteristics, and if so, determining whether that wetland is a water of the United States within the jurisdiction of the CWA. The CWA, however, does not define or mention wetlands. Rather, the basic wetlands definitions used in the § 404 program, discussed below, are in regulations issued by EPA and the Corps under the CWA's authority. The types of wetlands subject to the CWA's authority have evolved over the course of the administration of the § 404 program, and continue to be actively reviewed in the agencies and the courts.

As mentioned, the CWA does not use the word "wetlands." Rather, the statute defines only the waters subject to regulation under the CWA. One must look to several CWA provisions to understand how covered waters are defined. First, the Act prohibits the "discharge of any pollutant by any person."¹ The "discharge of a pollutant" means, in pertinent part, "any addition of any pollutant to navigable waters from any point source."² Next, the key phrase "navigable waters" is defined in the statute as "the waters of the United States, including the territorial seas."³ Congress left it to the Corps and EPA to provide a regulatory definition for the phrase "waters of the United States," which would determine the jurisdiction of the CWA.

The Corps originally approached its jurisdiction under CWA § 404 in the same manner that it had regulated pursuant to the RHA. Under the RHA, the Corps is authorized to regulate activities in traditionally navigable waters.⁴ Traditionally navigable waters are waters subject to the ebb and flow of the tide and/or waters which are, or have been, used to transport interstate or foreign commerce.⁵ Tidal flats, subject to regular tidal flow, are considered to lie under traditionally navigable waters, and thus are subject to the RHA.⁶ The RHA's jurisdiction also extends to the areas where a river customarily flows in its natural meanders;⁷ often these are wetlands.

In its early regulations administering the § 404 program, the Corps defined its jurisdiction to cover only those same, traditionally navigable waters.⁸ This definition excluded from coverage most wetlands that are generally nonnavigable, and also excluded other isolated or shallow waters from the CWA's jurisdiction. In response, environmental groups challenged these regulations, arguing that the regulatory jurisdiction of the CWA extended beyond traditionally navigable waters to the entire aquatic system, including small streams, tributaries, and wetlands. The issue was resolved in Natural Resources Defense Council v. Callaway,⁹ where the court invalidated the Corps' regulations, finding that they applied the CWA too narrowly. As a result, the Corps revised its regulations to include a broader range of waters, including adjacent wetlands and isolated waters. The Corps followed the instruction of the court, and relied on the CWA's legislative history, which indicated that Congress intended the phrase "navigable waters" to be given the broadest constitutional interpretation.¹⁰

As applied, the § 404 program makes regulated parties initially responsible for determining whether their wetlands are under the CWA's jurisdiction. The following section addresses the process for obtaining such wetlands determinations, the criteria for establishing wetlands, and specific issues that have arisen concerning jurisdictional wetlands.

I. Determining Wetlands Jurisdiction

A. EPA/Corps' Jurisdictional Authority

The division of authority between EPA and the Corps under the CWA was implicated in the issue of deciding what waters were subject to the § 404 program. The CWA's single definition of "waters of the United States" serves to define the limits of authority for both the § 404 permit program and other programs administered by EPA, such as the CWA § 402 NPDES permit program. After EPA and the Corps disagreed over which agency had authority to define the scope of "waters of the United States" for purposes of the § 404 program, the Corps requested the opinion of the U.S. Attorney General to resolve the dispute. In 1979, U.S. Attorney General Benjamin Civiletti wrote an opinion concluding that EPA, not the Corps, had ultimate authority to decide the CWA's jurisdiction, since EPA carried most of the responsibility for administering the statute.¹¹ Also, the Civiletti Opinion concluded that EPA, rather than the Corps, had the ultimate authority to decide the scope of the exemptions provided in § 404(f).¹²

While EPA was vested with the primary authority for the CWA's jurisdictional decisions,¹³ the Agency lacked both the resources and the authority to take over the § 404 permitting program from the Corps. However, for the Corps to administer § 404 and process permit applications, it must be able to decide whether filling activities will occur in the CWA's jurisdictional waters. Thus, EPA and the Corps entered into an MOU on April 23, 1980, concerning geographical jurisdiction of the § 404 program.¹⁴ The 1980 MOU was superseded by a 1989 MOA between the Corps [23 ELR 10192] and EPA on jurisdictional determinations.¹⁵ Under the 1989 MOA, EPA and the Corps established practical divisions of responsibility for jurisdictional determinations.

The 1989 MOA recognizes that the Corps will make most jurisdictional determinations in the course of administering the § 404 program.¹⁶ Under the MOA, EPA reserves the authority to determine jurisdiction in "special cases," which it may designate either in generic or project-specific instances.¹⁷ Significantly, jurisdictional determinations by either agency are binding on the government as a whole.¹⁸ The MOA also provides that final jurisdictional determinations must be in writing, and signed by either an EPA RA or a Corps district engineer.¹⁹

B. Obtaining the CWA's Jurisdictional Determinations

The 1989 MOA reflects the fact that determinations or delineations of CWA jurisdiction can arise in a number of ways. The phrases "wetlands determination" and "wetlands delineation" are often used interchangeably. However, a "wetlands determination" means a conclusion that wetlands are present; a "wetlands delineation" means a precise delineation, demarcation, or mapping of the location and extent of wetlands on a piece of property. Notwithstanding this distinction, the terms are used interchangeably in this primer. Most often, a wetlands determination is done because a property owner wants to know if a § 404 permit will be needed to conduct activities on the property. Several mechanisms exist to obtain a wetlands determination or to delineate the extent of waters on property.

Neither the CWA nor the regulations require the Corps or EPA to conduct wetlands determinations on request. The Corps' district engineers are authorized to make jurisdictional determinations.²⁰ However, the Corps' offices are often too understaffed to carry out all their required functions, including the processing of permits. Thus, it may be difficult for many of the Corps' districts to devote resources to optional matters, such as responding to a request for a wetlands determination. Some observers suggest that property owners should use the services of a well-respected private consultant to prepare a wetlands jurisdictional determination, and submit that work to the appropriate Corps' district office for review and approval. This option may result in a more rapid response from the Corps.²¹

Wetlands can change over time, and the CWA regulates waters in their present natural status, not their historic state.²² The Corps issued an RGL in 1990, which addressed the expiration dates for jurisdictional delineations.²³ The 1990 RGL reiterates that oral delineations, which are not verified in writing by the Corps, are no longer valid.²⁴ It provides that, as a general matter, delineations will be valid for three years, although a period up to five years may be justified by appropriate information.²⁵ And the RGL makes clear that the Corps explicitly retains the authority to revise wetlands delineations when new information so warrants.²⁶

A written jurisdictional determination or delineation issued by the Corps may be subject to judicial review on the administrative record.²⁷ However, the government strongly resists judicial challenges to affirmative jurisdictional determinations, and has convinced many courts that they are not reviewable.²⁸ An affirmative jurisdictional determination by the Corps represents the Agency's decision that wetlands are present, and that the landowner must apply for a permit prior to filling the delineated wetlands. The government resists judicial review of such determinations, arguing that if the permit is granted, there would be no reason to review the jurisdictional delineation. The government does not resist judicial review of negative jurisdictional determinations.²⁹

EPA has authority to conduct wetlands determinations when it invokes the "special case" authority under the 1989 MOA.³⁰ EPA also conducts a program of advanced identification of wetlands in certain areas.³¹ Under the advanced identification program, EPA will delineate the wetlands located in specific areas in advance of particular project proposals. The program is not a substitute for individual project review, but is designed to generally identify the wetland areas that may be suitable for future development, as well as those areas that are "generally unsuitable."³² EPA has undertaken advanced identification in localities where the federal and local authorities, as well as some private entities, were mutually interested in the project. Wetlands may also be identified on maps prepared by the FWS.³³

Finally, in the course of processing an application for an individual permit to fill wetlands, the Corps will determine the extent of the CWA's jurisdiction.³⁴ Even in the permit context, however, the Corps will generally rely on the permit applicant to develop and present information concerning the extent of jurisdictional waters. The initial burden is on the permit applicant to define the wetlands or other waters [23 ELR 10193] on his or her property. The Corps encourages early, preapplication consultation by permit applicants so that sufficient information, including information about jurisdictional waters, can be assembled.³⁵ The Corps has the authority to decide the extent of wetlands, but the applicant has the burden of assembling sufficient information to enable the Corps to make that decision.

II. Defining the CWA's Jurisdictional Waters

A. Wetlands as Waters of the United States

The current Corps' regulations reflect the results of the Callaway decision,³⁶ and provide that the CWA applies to very broad categories of waters. Both EPA and the Corps use the same definition of waters covered under the CWA.³⁷ The Corps' regulations define "waters of the United States" to include not only the traditionally navigable waters,³⁸ but also a broad range of waters, including:

* all interstate waters, including interstate wetlands;³⁹

* all other waters, such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce;⁴⁰

* all impoundments of water that fit these definitions;⁴¹

* tributaries of any defined waters;⁴²

* the territorial seas;⁴³ and

* wetlands adjacent to waters, other than adjacent to other wetlands.⁴⁴

Although some of these definitions were phased in over a period of years,⁴⁵ the current regulations provide for the CWA's jurisdiction over all of the waters identified above. The definitions are far-reaching, and include virtually all water bodies in the United States.

The Corps' regulations expressly define "waters of the United States" in several places to include wetlands, including interstate wetlands,⁴⁶ wetlands adjacent to other waters,⁴⁷ and wetlands within the category of "other waters," the degradation of which could affect interstate commerce.⁴⁸ This last definition encompasses so-called isolated wetlands, which are wetlands not adjacent to another body of water. Regulatory jurisdiction over these nonadjacent or isolated waters, including wetlands, depends on the Corps' finding that the degradation of those waters would impact interstate commerce. Due to the difficult and controversial nature of the CWA's jurisdiction, isolated waters and the commerce connection are addressed more fully below.

The Corps' regulations also provide a definition for adjacent wetlands. Adjacent means "bordering, contiguous, or neighboring."⁴⁹ Wetlands are considered to be adjacent to another body of water even if they are separated by "man-made dikes or barriers, natural river berms, beach dunes and the like."⁵⁰ In short, certain barriers between wetlands and other water bodies will not defeat a finding of adjacency.

The Corps' definition of "waters of the United States" was upheld in United States v. Riverside Bayview Homes, Inc.⁵¹ The landowner in the case challenged the Corps' assertion of regulatory authority over adjacent wetlands, arguing that such wetlands were not within the authority Congress provided in the CWA. The decision evaluates whether the Corps' regulation defining adjacent wetlands as "waters of the United States" is consistent with the CWA and its legislative history.

In this landmark case, the U.S. Supreme Court confirmed that the Corps may regulate adjacent wetlands, even where no surface water or hydrological connection exists between the wetland and an adjacent water body. The Court reviewed the jurisdictional changes in the Corps' regulations, from originally covering only traditionally navigable waters to currently covering a broad category of waters, including wetlands. The Court found that Congress "chose to define the waters covered by the Act broadly" and held that the broader regulations were consistent with Congress' concern over protecting entire aquatic ecosystems.⁵² The Court further supported the Corps' view that "even for wetlands that are not the result of flooding or permeation by water having its source in adjacent bodies of open water … [the] wetlands may affect the water quality of the adjacent lakes, rivers, and streams."⁵³

In Riverside Bayview Homes, the Supreme Court also reviewed the unsuccessful legislative efforts to amend the jurisdictional scope of § 404 in 1977. The Court felt that the Corps' decision to include adjacent wetlands in its definition of "waters of the United States" was supported by the fact that Congress considered, but did not pass, legislation to change the physical jurisdiction of the CWA. The Court was careful to note that it was not addressing the separate issue of the CWA's jurisdiction over nonadjacent or isolated waters.⁵⁴ The CWA's authority to regulate discharges into adjacent wetlands, however, is now well-established.

B. Physical Wetlands

Defining the physical characteristics of wetlands is necessary [23 ELR 10194] before any jurisdiction can be imposed. The Corps' regulations provide a physical definition of wetlands as follows:

[A]reas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.⁵⁵

This definition establishes three physical criteria as indicia of wetlands: (1) hydrology, or water that inundates or saturates the soil; (2) vegetation or plants that can and do survive in saturated soil; and (3) soil, which supports and reflects the hydrology and vegetation. The definition also includes the phrase "under normal circumstances," which allows the Corps to consider whether an unusual event has temporarily created or destroyed a wetland. Although in many cases there are undisputed physical wetlands characteristics, at times determining whether a parcel is a wetland can involve extensive examination and considerable judgment.⁵⁶ Thus, the physical definition, of necessity, requires a case-by-case application to each particular parcel that is to be determined or delineated. The wetlands characteristics of a parcel are evaluated on a site-by-site basis. The cases reflect findings of physical wetlands in a wide variety of circumstances, depending on the evidence of hydrology, vegetation, and soils present.⁵⁷

C. The Wetlands Manual Controversy

To assist Corps' field personnel who must make these case-by-case wetlands determinations, the Corps developed and, from time to time, modified a manual for delineating wetlands.⁵⁸ Other agencies involved in identifying wetlands used separate manuals.⁵⁹ As a result, differences evolved between the agencies in conducting wetlands identification and delineation. In 1989, after considerable interagency review, a joint manual for wetlands delineation was issued for use by the Corps, EPA, the FWS, and the United States Department of Agriculture's (USDA's) Soil Conservation Service (SCS).⁶⁰

The 1989 Joint Manual generated extensive controversy among the executive and legislative branches, as well as the public, arising from concern that it expanded the regulatory definitions of wetlands to encompass previously unregulated areas under the CWA's authority. The response to these concerns illustrates the way wetlands policy is sometimes approached at the federal level; a short summary is warranted.

In 1988, President Bush pledged a policy of "no net loss" of wetlands as part of his election campaign.⁶¹ The Bush White House then established an interagency policy group for wetlands, under the auspices of the Domestic Policy Council. However, the 1989 Joint Manual was not a product of this policy group; it was developed at the staff level of the four affected agencies. When the 1989 Joint Manual was announced, representatives of the oil industry and other interest groups appealed to the Bush administration policy group to withdraw the new manual.⁶² The Bush administration then undertook a high-level policy review of the manual and held hearings around the country.⁶³

In 1991, proposed revisions to the 1989 Joint Manual were published under the authority of EPA and the Corps, but they were in fact developed with policy level decisions made under the auspices of the White House.⁶⁴ Staff proposals from the agencies differed from the official 1991 proposed revisions.⁶⁵ The proposed revisions have been criticized by some for excluding from the CWA's jurisdiction [23 ELR 10195] many wetlands areas.⁶⁶ Although the government intended to leave the 1989 Joint Manual in effect pending revisions,⁶⁷ Congress has forbidden its use by the Corps in wetlands delineations unless the landowner consents.⁶⁸ As a result, the Corps has been applying its 1987 manual instead.

While the manual revisions were pending, environmental groups and others urged the Bush administration to move wetlands delineation from the political arena to the scientific, and seek the views of the National Academy of Sciences (NAS) on the manual controversy. Although the administration did not accept this proposal, Congress forced this result in 1992. EPA's fiscal year 1993 appropriations bill mandates preparation of a report on designating wetlands by the NAS.⁶⁹ Subsequently, EPA and the Corps formally announced that both would use the 1987 Corps Manual wetlands definition, and amended the 1989 MOA accordingly.⁷⁰ There will not be any further revisions of wetlands delineation manuals until the NAS completes its report.

The controversy over the 1989 Joint Manual and the 1991 proposed revisions highlights the reality that delineation of wetlands is done on a site-by-site basis, by individuals who have to exercise professional judgment in applying regulatory standards.

D. Identifying Wetlands

As mentioned, identifying and delineating a wetland requires assessing the hydrology, vegetation, and soils of a site. However, questions often arise concerning how frequently and to what depth saturation must occur; how much and what kinds of vegetation constitute appropriate wetlands indicators; which soils are hydric; and how the three criteria should relate to each other. Most of the disputes in delineating wetlands involve the hydrology and the vegetation of sites, rather than the soils.

— Soils. Hydric soils, due to wetness, develop certain morphological properties that can be observed. These include compacted organic material, such as leaves, stems, and roots, and particular colors for mineral soils. These soil characteristics generally survive periodic changes in hydrology or vegetation and, thus, are not easily disturbed. Hydric soils are matched against criteria established by the National Technical Committee for Hydric Soils (NTCHS) to classify their nature.⁷¹ While some questions about the nature of certain soils must be resolved by experts, the soil criteria for delineating wetlands has not been very controversial. However, soil characteristics alone may not prove the existence of a wetland, since the hydric soil can remain after other wetlands indicators are long gone. Nonetheless, hydric soils are an important indicator in wetlands enforcement actions where wetlands jurisdiction must be determined after a violation has occurred.

— Hydrology. Hydrology, by contrast, varies widely in duration and character. Moreover, how wet a parcel must be to be classified as a wetland raises many technical issues. First, wetlands can become saturated from both subsurface sources, principally groundwater or the underground water table, or from inundation on the surface. Second, hydrological conditions may change from year to year, or during an annual cycle of wet and dry seasons. Personnel conducting wetlands delineations need guidance on the nature and persistence of the hydrology necessary to sustain a wetland.

The 1987 Corps Manual provides that wetlands hydrology is present where there is inundation or saturation in major portions of the vegetation root zone (usually within 12 inches of the surface) during the growing season.⁷² The 1989 Joint Manual, in contrast, provided that wetlands hydrology existed where there was inundation or saturation for seven consecutive days within 6 to 18 inches of the surface. Many observers felt that this was a major change that would include as wetlands many parcels that lacked wetlands hydrology for the vast portion of the year. The government, in proposing revisions to the 1989 Joint Manual, sought comment on a standard that would define sufficient wetlands hydrology as inundation for 15 consecutive days, or saturation for 21 consecutive days, during the growing season.⁷³ These differences illustrate the range of views on wetlands hydrology.

The standard presented in the 1991 proposal is based on an assumption that a wetland should have visible surface saturation for some set period during the growing season, regardless of whether such saturation is necessary to maintain wetlands vegetation. Thus, it is not based on the saturation needed to maintain wetlands vegetation, but instead reflects a policy choice that regulated persons will be better able to comply with the law if regulated wetlands are visibly "wet." In short, the differences reflect the policy tension underlying wetlands regulation, where a parcel may well serve the biological functions of a wetland but not appear to the public to be a waterbody subject to the CWA.⁷⁴

— Vegetation. Identifying wetland-indicator vegetation also has the potential to be very controversial. Nearly 7,000 plant species have been found growing in U.S. wetlands, but only [23 ELR 10196] 27 of these are obligate wetland species that occur almost always in wetlands.⁷⁵ Other types of plant species, organized by their wetland indicator status, include: facultative wetland plants, which usually occur in wetlands, but infrequently occur in nonwetlands; facultative plants, which may occur in either wetlands or nonwetlands; facultative upland plants, which usually occur in nonwetlands, but occasionally occur in wetlands; and obligate upland plants, which almost always occur in nonwetlands.⁷⁶ In the field, personnel must have guidance regarding what prevalence of plants and what distribution of plant groups indicate the presence of wetlands.

Under the 1987 Corps Manual, wetlands vegetation exists if facultative, facultative wetland, or obligate wetland species account for more than 50 percent of the plants at a site. The 1989 Joint Manual developed a prevalence index, in which different plant types were assigned different numbers, with obligate wetland plants given a one (1) and obligate upland plants given a five (5). Wetland vegetation is present when the prevalence index yields a composite number of three or less.⁷⁷ The 1991 proposed revisions also would utilize this prevalence index. In each case, scientific judgments concerning plant identification and quantities of vegetation must be made on a case-by-case basis.

Several lawsuits were filed to challenge the 1989 Joint Manual on the grounds that it was actually a regulation, which had to be promulgated by notice and comment rulemaking.⁷⁸ The federal government maintained in these cases that the 1989 Joint Manual was not a rule, but was only an interpretation of existing regulations that provided nonbinding guidance for individual cases. The government's position in court was that the regulations, not the 1989 Joint Manual, were the binding legal standards. The courts generally accepted these arguments.

Site-specific judgment will always be needed in identifying wetlands. As mentioned, the Bush administration ended without the federal government repromulgating, in whole or in part, the 1989 Joint Manual or the 1991 proposal. The agencies appear content to utilize the 1987 Corps Manual, which Congress had mandated be used by the Corps.⁷⁹ Landowners who dispute a wetlands delineation on their property should rely primarily on the published regulations and secondarily on the 1987 Corps Manual.

E. Normal Circumstances

The Corps' regulatory definition of wetlands requires that areas must exhibit the wetlands characteristics (hydrology, vegetation, and soils) "under normal circumstances."⁸⁰ The Corps included this qualifying phrase to ensure that the CWA is applied to conditions as they presently exist. The qualifier precludes the CWA's jurisdiction over areas that may have been wetlands in the past, but have long since been changed. In addition, the phrase prevents application of the CWA to ponding or wetlands that are unusual and temporary, such as those that might emerge during the course of construction activities on uplands. The phrase also assures that a temporary loss of wetlands characteristics, such as when vegetation is removed or illegal fill is deposited, will not cause a parcel to lose its status as a wetland "under normal circumstances."

Although the Corps has not reissued its 1986 RGL addressing "normal circumstances,"⁸¹ that guidance explained that "normal circumstances" was intended to meet the concerns described above, as well as to prevent partial and/or temporary disruptions of wetlands characteristics from escaping from the CWA's authority. Thus, the destruction of wetland vegetation to avoid § 404 would be thwarted since the property would remain a wetland "under normal circumstances."

In addition, permitless filling activities that convert wetlands to uplands cannot be the basis for claiming that a parcel is not a wetland "under normal circumstances." In Golden Gate Audubon Society v. U.S. Army Corps of Engineers,⁸² the court concluded that the phrase "under normal circumstances" was intended only to prevent application of the CWA to areas that were formerly wetlands, but which had been lawfully changed to uplands. The U.S. Court of Appeals for the Ninth Circuit, in Leslie Salt Co. v. United States,⁸³ reiterated that the phrase "normal circumstances" referred to the physical wetlands indicators, not to whether those indicators resulted from man-induced forces.

III. Which Wetlands Are Subject to the CWA's Jurisdiction?

Although the Corps' and EPA's regulations broadly define the CWA's jurisdiction to include most wetlands, the courts have grappled with whether certain kinds of wetlands are beyond the CWA's jurisdiction. Still other problems of regulatory jurisdiction over wetlands remain subject to controversy. These are addressed in turn.

A. Artificially Created Wetlands

It is now widely accepted that the history or origin of wetlands is irrelevant to the CWA's jurisdiction. Even where government actions may have caused wetlands to form, these wetlands can be subject to the CWA's jurisdiction, as long as the property is a physical wetland.⁸⁴ The CWA's jurisdiction has been upheld over waters created by unauthorized activities of third parties,⁸⁵ highway construction,⁸⁶ [23 ELR 10197] government mosquito ditches,⁸⁷ and from artificial canals.⁸⁸ Although the U.S. Court of Appeals for the Eighth Circuit seemed at one time to take a contrary view,⁸⁹ it has since joined the majority trend in holding that artificially created waters may be regulated.⁹⁰

Although artificially created wetlands may be subject to the CWA's jurisdiction, the affected landowner is not without a remedy if government activity caused the property change. Landowners may seek to recover damages from the government on a "takings" theory.⁹¹

B. Seasonal Wetlands

Courts have also upheld as regulated wetlands properties that are wet on a seasonal basis. For example, former crystallizer and calcium chloride pits, which maintained water and wetlands characteristics during the winter rainy season but were dry during other parts of the year, have been held to be jurisdictional waters under the CWA.⁹² Applying other provisions of the CWA, courts have held that normally dry arroyos, which flow into other waters during their wet season, are within theregulatory jurisdiction of the CWA.⁹³ Jurisdiction over seasonal wetland properties will remain subject to case-by-case factual examination.

C. Isolated or Nonadjacent Wetlands

Perhaps no aspect of CWA jurisdiction has generated more controversy than the extent of regulatory authority over isolated or nonadjacent waters. The Corps' and EPA's regulations define "waters of the United States" to include "all other waters … the use, degradation or destruction of which could affect interstate or foreign commerce."⁹⁴ This regulation was intended to carry out the congressional instruction, confirmed by the courts, that the CWA's jurisdiction was to extend to the maximum degree authorized by the commerce power.⁹⁵ Thus, the regulation subjects isolated or nonadjacent wetlands to the CWA's authority if a link exists between the water body and interstate commerce.

The regulation at 33 C.F.R. § 328.3(a)(3) provides nonexclusive examples of waters with impacts on interstate commerce that will support the CWA's jurisdiction. These include waters:

* which are, or could be, used by interstate travelers for recreation or other purposes;

* from which fish or shellfish are taken and sold in interstate commerce; or

* which are or could be used for industrial purposes by industries in interstate commerce.

In addition, courts have upheld the exercise of the CWA's jurisdiction over wetlands adjacent to inland lakes based on the fact that the lakes were visited by interstate travelers for recreation.⁹⁶

Most of the controversy over isolated wetlands, however, has arisen in instances where the commerce connection relied on by the Corps was not identified in the examples given in the regulations. For example, some disputes over the CWA's jurisdiction concern whether use of an isolated wetland by migratory birds or other wildlife creates a "commerce connection" sufficient to support the CWA's regulatory authority. The courts have split on this issue and the question remains highly volatile.

The federal government has maintained, since at least 1985, that use of isolated waters by migratory birds could provide a sufficient interstate commerce connection to support the CWA's jurisdiction. In a September 12, 1985 memorandum, EPA General Counsel Francis S. Blake concluded that the CWA's jurisdiction extended to isolated waters that were or could be used by migratory birds or endangered species.⁹⁷ Claiming that the Corps was unlawfully declining to assert jurisdiction over isolated waters, environmental groups sued in 1986 for declaratory and injunctive relief to compel a change in Corps' practices.⁹⁸ The plaintiffs argued that the Corps had declined to assert jurisdiction over an isolated waterbody in Texas, known as Pond 12, and that the agencies engaged in similar restraint by failing to exercise jurisdiction over isolated waters elsewhere in the country.

While the Pond 12 litigation was pending, the Corps announced that it concurred in EPA's view that the CWA extends to isolated waters subject to use by, or used by, migratory birds and endangered species.⁹⁹ The Corps issued memoranda to its districts explaining that the use of waters by migratory birds could support the CWA's jurisdiction.¹⁰⁰ As a result, all parties to the Pond 12 case were in agreement on the scope of the Commerce Clause jurisdiction of the [23 ELR 10198] CWA by the time the case was decided.¹⁰¹ Since then, the issue of the CWA's Commerce Clause jurisdiction, based on bird or wildlife habitat, has been addressed in several decisions, and the viability of the government's position has been seriously called into question. In Tabb Lakes, Ltd. v. United States,¹⁰² the district court expressed "grave doubts that a property now so used, or seen as an expectant habitat for some migratory birds, can be declared" a sufficient nexus to interstate commerce to warrant the Corps' jurisdiction.¹⁰³ However, the court did not decide the CWA's jurisdictional issue. Rather, the court concluded that the Corps could not claim jurisdiction over an isolated wetland based on use by migratory birds, because it had not properly promulgated a rule including this criteria. The court found that the Corps' definitions at 33 C.F.R. § 328.3(a)(3), which identifies some examples of suitable interstate commerce linkage, did not specifically include migratory bird usage. Before the Corps could rely on such bird usage as a Commerce Clause nexus, the court held that the regulation must be formally modified, through a notice and comment rulemaking.¹⁰⁴

The Leslie Salt Co. court also declined to decide definitively whether an isolated water was within the CWA's jurisdiction based on bird usage.¹⁰⁵ However, in contrast to the Tabb Lakes court, the Leslie Salt Co. court expressed firm support for the concept. Although it remanded the case for further determinations on the evidence of migratory bird habitat, the Ninth Circuit held that "[t]he commerce clause power, and thus the Clean Water Act, is broad enough to extend the Corps' jurisdiction to local waters which may provide habitat to migratory birds and endangered species."¹⁰⁶ The court cited a number of other cases that had upheld federal legislation based on the connection between interstate commerce and wildlife.¹⁰⁷ The Ninth Circuit implicitly rejected the view in Tabb Lakes that the Corps needed to amend its regulations in order to use the migratory bird nexus to interstate commerce.

In addition, in an order entered April 6, 1992, the U.S. District Court in North Dakota accepted that CWA § 404 could extend to isolated wetlands based on a Commerce Clause connection. In United States v. Sargent County Water Resource District,¹⁰⁸ the defendant had cleared a lengthy drainage ditch through a vast, shallow water area composed of the Bruns Slough, the Big Slough, and the Meszarous Slough; these areas were frequented by tens of thousands of migratory waterfowl for feeding, resting, and breeding. The sloughs were utilized by interstate travelers for recreation, hunting, and bird watching. While the case presented issues of whether the filling was exempted under § 404(f) for maintenance of drainage ditches,¹⁰⁹ the court had no trouble concluding that the isolated wetlands were jurisdictional waters under the CWA.¹¹⁰ The court reasoned that there was a sufficient Commerce Clause nexus, and that protection of waters utilized primarily for bird and wildlife habitat was within Congress' intent as expressed in the CWA.¹¹¹

In contrast, a recent Seventh Circuit Court of Appeals opinion, which the court subsequently vacated, rejected an attempt by EPA to enforce the CWA's requirements on an isolated waterbody based on a Commerce Clause connection with migratory birds. In Hoffman Homes, Inc. v. United States Environmental Protection Agency,¹¹² the court found that neither the CWA nor the Commerce Clause supported the CWA's regulatory jurisdiction based solely on the possibility that birds might alight in an isolated waterbody. Although vacated, the reasoning can be used to persuade other courts to reach the same conclusion, making this an important case.

Hoffman Homes was decided on a petition for review, brought directly to the court of appeals, seeking to set aside an EPA enforcement penalty. EPA had penalized the landowner for filling an isolated waterbody of approximately .8 acres without obtaining a permit. The case was heard below by an EPA administrative law judge, and appealed to EPA's chief judicial officer, who imposed a $50,000 fine. On appeal to the Seventh Circuit, the primary issue was whether this small, isolated water body met the regulatory definition of "other waters" whose destruction adversely impacted interstate commerce.

A panel of the Seventh Circuit examined the history of the regulations and subsequent case law, and concluded that only adjacent wetlands are within the CWA's jurisdiction, but not isolated wetlands.¹¹³ In particular, the court relied on the CWA's goal of protecting aquatic systems, and the role of adjacent wetlands in water quality protection, and contrasted these purposes with isolated waters. The court held:

The Supreme Court's reasoning in Riverside leads to the conclusion that the Clean Water Act does not give the EPA authority to regulate isolated wetlands. Isolated wetlands, unlike adjacent wetlands, have no hydrological connection to any body of water. By their very definition, isolated wetlands have no relationship or interdependence with any other body of water…. Protection of isolated wetlands, therefore, would not further the objective of the Clean Water Act "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters."¹¹⁴

Based on its analysis of the law, the Seventh Circuit found that the EPA's regulation defining "other waters" is contrary to the CWA and invalid.¹¹⁵ The court also found that, on the facts, EPA failed to demonstrate any sufficient connection [23 ELR 10199] between the specific isolated waterbody and interstate commerce.¹¹⁶

EPA petitioned the court for rehearing, arguing that the opinion was inconsistent with the Riverside Bayview Homes decision addressed above. EPA vigorously challenged the court's power to set aside the regulatory definition.¹¹⁷ The Seventh Circuit subsequently granted EPA's petition for rehearing and vacated the panel decision.¹¹⁸ The court provided no rationale or explanation for its decision to vacate, and the order referred the case to a senior court attorney for settlement negotiations.¹¹⁹ This is a highly unusual move, which leaves resolution of the issues up in the air.¹²⁰ If the parties are unable to reach a settlement, the Seventh Circuit will have to enter some kind of decision in the case.

While the Seventh Circuit's action prevents, at least temporarily, a complete eradication of EPA's position that migratory wildlife use satisfies the Commerce Clause's connection for isolated waters jurisdiction, the status is an uneasy judicial truce. The Corps and EPA would enhance the wetlands program by undertaking formal revision of the regulations to codify their position on the use of isolated waters and the Commerce Clause's jurisdiction. Such an amendment would provide an opportunity for public comment on the sufficiency of wildlife use to establish an interstate commerce connection. Any party who remained dissatisfied after such a regulatory amendment could seek judicial review. This would enable the agencies to quiet a major uncertainty that clouds the CWA's wetlands jurisdiction.

D. Waste Treatment Ponds and Prior Converted Cropland

The Corps and EPA recently proposed changes to the regulatory definitions of "waters of the United States" to establish two exemptions.¹²¹ Under the proposal, the government would expressly exempt waste treatment ponds and lagoons, other than cooling ponds, by adding an exception for them to 33 C.F.R. § 328.3. Discharges into such ponds would not require a separate § 404 permit.

The proposed changes would also exempt "prior converted cropland" from the CWA's definition of "waters of the United States," as that phrase is used in programs administered by the USDA. Under certain agricultural programs,¹²² wetlands that were converted to commodity cropland prior to December 23, 1985, and continued to be farmed thereafter, are not considered to be wetlands by the SCS. Such wetlands might, nonetheless, be jurisdictional under § 404.

In 1990, the Corps issued RGL 90-7, Clarification of the Phrase "Normal Circumstances" as it Pertains to Cropped Wetlands,¹²³ in an effort to provide consistency among § 404 and wetlands programs administered by the USDA. RGL 90-7 interpreted the phrase "under normal circumstances" in the Corps' regulatory definition¹²⁴ to authorize the Corps to decide that wetlands converted to a commodity crop prior to December 23, 1985, in the manner authorized by the SCS, were no longer wetlands under normal circumstances. RGL 90-7 also required that such lands must be inundated for no more than 14 consecutive days during the growing season, and pothole or playa wetlands were not exempted.

The proposed Corps' regulation would codify RGL 90-7, and is based on the theory in RGL 90-7 that the various federal programs addressing wetlands should be administered in a consistent fashion. The preamble to the regulation reminds the public that the SCS cannot make wetlands jurisdictional determinations that are binding on the Corps or EPA,¹²⁵ but notes that the Corps and EPA will try to accept the SCS' status determinations of prior converted wetlands to the extent possible. The proposal urges persons to obtain the concurrence of the Corps or EPA in an SCS prior converted cropland designation, to assure that all federal regulatory requirements are met.

IV. Summary of Wetlands Jurisdiction

Deciding whether a physical wetland is present requires an evaluation of the soils, hydrology, and vegetation of a site. Because federal guidance for physical wetlands determinations is currently in flux, due to withdrawal of the 1989 Joint Manual, regulated parties should consult the 1987 Corps Manual. Most physical wetlands are also jurisdictional wetlands, because the "waters of the United States" that are subject to § 404 are broadly defined. However, courts are split over the government's authority to regulate isolated waters when wildlife use constitutes the only commerce clause connection. The pending issues over physical wetlands and the application of the CWA to isolated waters will have to be resolved by the agencies, the courts, and perhaps Congress.

[23 ELR 10200]

Chapter 3. Regulated Activities Under § 404: Discharges of Pollutants From Point Sources

The CWA protects wetlands by forbidding certain activities that impair wetlands. Specifically, the CWA prohibits the discharge of a pollutant from a point source into waters of the United States without a permit.¹ This prohibition, however, covers only some of the actions which can impact wetlands. Since most wetlands are waters subject to the CWA's jurisdiction, the terms "discharge," "pollutant," and "point source" must be understood to appreciate the prohibited acts.

I. Pertinent Definitions

The CWA, the Corps' regulations, and case law interpreting § 404, define what constitutes a "pollutant" and what constitutes a "discharge." The Act defines "pollutant" to include:

dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial waste discharged into water.²

The "discharge" of a pollutant or pollutants is defined as "any addition of any pollutant to navigable waters from any point source."³ These broad definitions include the deposit of fill material used to convert wetlands to dry land. The fill material used is often dredged material, dirt, sand, rocks, or other debris. Although the CWA and regulations exempt some discharges from the permit requirement,⁴ the statutory prohibition is comprehensive.

The Corps has refined the statutory definitions to give them meaning in the § 404 context. Specifically, the Corps' regulations use the terms "dredged" and "fill," requiring permits for the discharge of dredged or fill material.⁵ "Dredged material" is defined as "material that is excavated or dredged from waters of the United States."⁶ A discharge of dredged material includes, "without limitation, the addition of dredged material to a specified discharge site located in waters of the United States and the runoff or overflow from a contained land or water disposal area."⁷ EPA uses the same definitions of "dredged material" and "discharge of dredged material."⁸

The Corps defines "fill material" to include "any material used for the primary purpose of replacing an aquatic area with dry land or of changing the bottom elevation of any water body."⁹ This definition, while couched in terms related to the reason for placing the fill, is an objective, functional definition, rather than a subjective one. If the fill has the result of changing a wetland to dry land, it meets the regulatory definition. EPA defines "fill material" by using the statutory term "pollutant," stating that fill is any pollutant which "replaces portions of the waters of the United States with dry land or which changes the bottom elevation of a water body for any purpose."¹⁰ Because the term "pollutant" is so broadly defined, it is not likely that the Corps' use of "material" would be construed more broadly than EPA's term "pollutant." However, EPA has authority to enforce § 404,¹¹ and has specifically provided that any change in the bottom elevation "for any purpose" can constitute filling.¹² Thus, EPA's regulation precludes a discharger from arguing that the subjective intent controls.

The Corps defines "discharge of fill material" as simply "the addition of fill material into waters of the United States," but includes a long list of examples.¹³ These include building causeways, roads, dams, dikes, artificial islands, any structure or impoundment, site development fills for any use, reclamation or protection devices, such as riprap, groins, seawalls, or breakwaters, fill for intake or outfall pipes or sewers, and artificial reefs.¹⁴ EPA uses the same definition and examples.¹⁵ And the courts have held that fill dirt is a pollutant regulated under CWA §§ 301 and 404.¹⁶

Although the exemptions to the § 404 program are addressed more fully below, it is worth noting that the definitions addressing discharges are careful to exclude certain activities. For example, certain agricultural activities, such as routine plowing, cultivating, seeding, and harvesting, are exempted from the definitions of discharge.¹⁷ These agricultural exemptions are more carefully drawn in other provisions of the law, specifically § 404(f).¹⁸ De minimis, incidental soil movement during dredging is also exempted.¹⁹ This allows dredging, with incidental redeposit from the dredge equipment, if no other placement of fill into waters occurs. The Corps has consistently maintained that the CWA regulates discharges of dredged material, but not the dredging itself.²⁰ Dredging cannot occur without some normal, incidental fallback of dredged material from the dredge equipment, sometimes called"bucket drippings." To regulate those small, incidental discharges would mean regulating the dredging itself, which the Corps has declined to do.²¹

The CWA defines "point source" very broadly to include [23 ELR 10201] "any discernible, confined and discrete" conveyance.²² Examples of point sources include a pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, or vessel. The only statutory exemption is for "agricultural storm water discharges and return flows from irrigated agriculture."²³ While the agencies have not supplemented the definition of "point source" with regulations, the courts have routinely found that construction equipment, such as bulldozers, backhoes, and other heavy machinery, meets the definition of point source.²⁴

II. Examples of Regulated Activities

Courts have addressed whether certain activities in wetlands involve the discharge of a pollutant subject to the CWA. Among the activities that have received judicial attention are: landclearing, soil or sediment redeposit from boat propellers, stream channelization, the placing of pilings for bridges and piers, discharges subject to other authorities, the draining of wetlands, and runoff into wetlands. Judicial resolution of whether these actions involve the discharge of a pollutant reflects the broad range of activities subject to § 404.

A. Landclearing

In Avoyelles Sportsmen's League v. Marsh,²⁵ the Fifth Circuit Court of Appeals applied the CWA's definition of discharge to certain landclearing activities in wetlands. In Avoyelles, landowners had converted a forested wetland to agricultural use. The trees were cut above the ground surface by shearing blades, and the trees and vegetation were raked into windrows,²⁶ burned, and then the ashes and remaining organic materials were disced²⁷ into the soil. Bulldozers and other machines were used to conduct these landclearing activities. A citizens group²⁸ sued the landowners, the Corps, and EPA, complaining that the activities were unlawful under the CWA.

The court had to decide whether the landclearing under these circumstances, depositing indigenous material in a manner that destroyed the wetland, involved the discharge of a pollutant as defined under the CWA. The court held that because "the landclearing activities involved the redeposit of materials, rather than their mere removal,"²⁹ there was a discharge of a pollutant covered by the CWA. Moreover, the court found that the vegetation, both burned and unburned, fell within the definitions of "fill material."³⁰ Thus, under Avoyelles, the CWA regulates activities in wetlands based on what is put into the wetlands, not what is taken out.

Since the Avoyelles decision, the Corps has issued and periodically revised an RGL addressing landclearing activities, designed to advise the Corps' districts of the kinds of landclearing activities that require a CWA § 404 permit. RGL 90-05 is the Corps' most recent position on landclearing,³¹ and provides that:

* mechanized landclearing, using equipment such as backhoes or bulldozers, in wetlands results in a redeposition of soil and is subject to § 404 regulation;

* cutting trees above the soil surface with a chain saw, with no attendant redeposition, is an exception to the general rule; and

* RGL 90-04 is different than earlier RGLs, specifically RGL 85-4 on landclearing, and the Corps recognizes that it must consider, on a case by case basis, whether a landowner might have undertaken activities relying on earlier guidance.³²

Under the current guidance, therefore, landclearing activities that result in the redeposit of soil or vegetation involve a prohibited discharge of a pollutant, requiring review under § 404. However, cutting trees and removing the debris from the wetland, without causing a discharge, would not be an activity regulated under the CWA.

The courts have confirmed that certain landclearing activities do not involve CWA-regulated discharges. In Save our Wetlands, Inc. v. Sands,³³ the Louisiana Power and Light Company cleared a wooded wetland by cutting trees with chain saws, windrowing the removed vegetation, and leaving the windrows to deteriorate naturally. The court concluded that there was no discharge of a pollutant because the removed materials were not redeposited into the wetland to convert it to dry land. The court found that the wetlands in Sands would not be destroyed, as had occurred in Avoyelles; "wooded swampland … here will be changed to swampland vegetation with shrubs, grasses and other low growth."³⁴ The wetland hydrology would remain, although the vegetation would be altered. Drawing from the Corps' definitions, the court also noted that since the removed vegetation was not reintroduced into the wetland, there was no discharge that was designed to "replac[e] an aquatic area with dry land or … chang[e] the bottom elevation of a waterbody."³⁵ The Sands court distinguished the activities in Sands from the activities in Avoyelles largely because the wetland would not be destroyed.

Subsequently, the Fifth Circuit explained that its decision in Sands was not based on the fact that the wetlands would not be completely destroyed, but rather on the fact that the materials discharged did not meet the regulatory definition of dredged or fill materials.³⁶ While the Fifth Circuit seems [23 ELR 10202] to see a difference between the fill material in Avoyelles and the fill material in Sands, that distinction is not apparent from the text of the two court decisions.

B. Propeller Wash

The redeposit of sediment dredged by the propellers of tugboats was held to be a discharge of a pollutant regulated under the CWA in United States v. M.C.C. of Florida, Inc.³⁷ In the course of transporting bridge segments for a construction project, defendant's tugboats damaged sea grass beds and the bottoms of waterways by churning up sediment and redepositing it in the adjacent sea grass. The defendant maintained that there was no "addition" of a pollutant under these circumstances but the court disagreed. Relying on Avoyelles, the M.C.C. court found that a discharge can include a redeposit of materials:

The redepositing of spoil dredged up by the tug's propellers onto the adjacent sea grass beds clearly disturbs the "physical and biological integrity" of the subject areas. The damage done to these areas was too severe for nature to be able to restore them to their natural condition herself.³⁸

The M.C.C. decision provides grounds for distinguishing between minor sediment movement accompanying normal boat traffic and substantial redeposit of soils that changes the nature of the water bottom or wetland. The latter activity, but not the former, is regulated under CWA § 404.

C. Channelizing Streams

Other cases have confirmed that the CWA covers the reintroduction of natural material into the nation's waters. Property owners who channelized streams by moving material from locations in the waterbed to enhance banks, or by redirecting flow, have argued that their activities were not governed by the CWA because they did not "add" material. Following the principles expressed in Avoyelles and other cases, the courts have rejected these claims.

In United States v. Sinclair Oil Co.,³⁹ a landowner was found liable under the CWA for "rearrangement of indigenous materials in a riverbed, undertaken to cut off high water channels, to protect riverbanks from accelerated erosion, and to maintain a river channel."⁴⁰ The court found that the indigenous materials met the definition of "fill" and that the activities were covered by the CWA.

Similarly, in United States v. Zanger,⁴¹ the court rejected a defendant's argument that moving riverbed sand and gravel to change the flow of a creek did not violate the CWA. In Zanger, the property owner also claimed that since the words "fill material" do not appear in the CWA, fill cannot be a regulated pollutant.⁴² The court easily upheld the Corps' regulations, and found that the landowner's activities, which changed the elevation and course of the waterbody, were regulated under CWA § 404.

The circumstances under which the movement of indigenous material in waters may constitute the addition of a pollutant regulated under the CWA are also addressed in connection with CWA § 402 and the water changes associated with dams.⁴³ For the most part, the thermal and other alterations to water resulting from large, hydroelectric power dams have been held to be outside of CWA § 402 jurisdiction; those changes are not considered additions of pollutants. Under § 404, however, alternation of native material in the waters is generally regulated. For example, in Sinclair Oil,⁴⁴ the court specifically distinguished cases involving whether an existing dam constitutes a point source that adds pollution by virtue of water changes caused by the dam impoundment and cases where material is intentionally moved. The court found that, under § 404, there is no question that moving indigenous materials to construct new structures or to change the waterbottom is a regulated activity.⁴⁵

D. Pilings for Bridges and Piers

The Corps has consistently taken the position that pilings are not ordinarily fill material and that the placement of pilings does not ordinarily constitute a regulated CWA discharge. RGL 90-08 sets out the Corps' policy on pilings.⁴⁶ Pilings actually used for bridges or piers allow the flow of water to continue and, other than during actual construction, do not significantly disturb the water or waterbottom. However, the Corps' policy is designed to prevent the use of pilings for the same purpose and function as fill material.

RGL 90-08 provides that projects in which pilings have the "physical effect or functional use and effect of fill" will be regulated.⁴⁷ The Corps has proposed to incorporate these standards into its regulations.⁴⁸ According to Corps' policy, pilings may be regulated when they constitute the equivalent

of replacing an aquatic area with dry land or changing the bottom elevation of a waterbody. [P]ilings may have this function or effect when they are placed so as to facilitate sedimentation, or are placed so densely that they in effect displace a substantial percentage of the water in the project area.⁴⁹

The "function or effect" standard is explained as using pilings to accomplish the same thing as filling, such as providing a foundation for facilitating the construction of buildings, parking lots, or other structures. RGL 90-08 provides examples of using pilings to have the effect of fill, where they are densely placed for structures such as dams, dikes, or foundations. In such instances, the space (if any) [23 ELR 10203] between the pilings might be expected to fill in with sediment over time and alter the waterbottom.

These prohibited uses are contrasted with nonregulated uses of pilings, for bridges, elevated walkways, piers, wharves, individual houses on stilts, and other similar structures. These uses of pilings do not substantially harm or eliminate aquatic functions and values. A § 404 permit is not required for these activities.

E. Discharges Subject to Other Authorities

Since both CWA §§ 402 and 404 authorize permits for the discharge of pollutants, the Corps and EPA have had to decide which activities are subject to each provision. The discharge of solid waste or other fill material, which may contain hazardous or other dangerous wastes, are the activities of greatest concern that have the potential to be subject to both §§ 402 and 404.

In 1986, the Corps and EPA entered into an MOA⁵⁰ to address the relationship among § 404, § 402, and the 1984 amendments to the Resource Conservation and Recovery Act (RCRA), which authorize EPA to regulate solid and hazardous waste.⁵¹ The 1986 MOA provides that discharges generally subject to CWA § 404 are those where:

* the discharge has the purpose of converting waters to dry land, or raising the bottom elevation;

* the discharge results from activities like road construction or involves materials generally identified with "construction-type activities";

* a principal effect of the discharge is loss or modification of aquatic habitat; and

* the material is "heterogeneous" in nature, of the kind associated with sanitary landfill discharges.⁵²

This functional approach to § 404 is consistent with the Corps' definition of "fill material," which specifically excludes pollutants discharged "primarily to dispose of waste, as that activity is regulated under Section 402 of the Clean Water Act."⁵³

In contrast, the 1986 MOA indicates that § 402 will generally govern where "the discharge is liquid, semi-liquid, suspended or otherwise the kind of homogeneous material usually associated with a single industry wastes."⁵⁴ Examples of discharges governed by § 402 include "placer mining wastes, phosphate mining wastes, titanium mining wastes, sand and gravel wastes, fly ash and drilling muds."⁵⁵ EPA retains authority under § 402 over those discharges that are single-industry waste disposal practices, similar to the other end-of-the-pipe, industry specific waste disposal discharges regulated by EPA.⁵⁶ The Corps, on the other hand, regulates discharges that change the physical structure of the water body.

The 1986 MOA acknowledges that EPA has authority to study and regulate solid waste under RCRA. Thus, the MOA establishes an "interim program to control the discharges of solid waste material" under the CWA, pending more specific regulatory controls that EPA might impose under RCRA.⁵⁷ The MOA advises the public that it is unlikely that hazardous waste discharges under RCRA could qualify for a § 404 permit.

The relationship between CWA §§ 402 and 404 has also been raised in litigation. In West Virginia Coal Ass'n v. Reilly,⁵⁸ the court decided that certain activities by surface coal miners, known as "in-stream treatment," were within EPA § 402 authority as waste disposal, rather than within the Corps' authority as fill. Coal miners use impoundments built in streams to create settling basins for removing pollutants that occur in the mining materials, or in runoff from mining slag piles. The material to be treated is placed in the watercourse upstream from the impoundment and "washed" by the stream flow. The mining industry, resisting the application of § 402, maintained that the deposit of materials for this in-stream treatment was subject to either § 404 as a "fill," or to the Surface Mining Control and Reclamation Act (SMCRA) only. The court found first that the CWA was not supplanted by the mining laws, including SMCRA.⁵⁹ With respect to which provision of the CWA governed, the court found that "the primary purpose of the fills and treatment ponds is to dispose of waste or spoil, not to create dry land such as is needed for construction of buildings or land development, as contemplated by the Army's definition…."⁶⁰ Relying on the 1986 MOA and the structure of the CWA, the court agreed that the treatment practices were subject to EPA's regulation under § 402. The Corps had authority only over the filling for the dam or dike that created the impoundment, rather than for the discharges from mining materials placed in the water for treatment by washing and settling out of contaminants.

The distinction between §§ 402 and 404 was also recognized in Minnesota v. Hoffman,⁶¹ where thecourt held that the Corps did not need a § 402 permit for discharges incidental to the dredging of waterways. Similarly, in Canada Community Improvement Society, Inc. v. City of Michigan City,⁶² the court recognized that § 402 had no role in situations involving filling activities that were subject to § 404.

F. Draining Wetlands

Although certain activities may impair or destroy wetlands, they may not be regulated under the CWA. Specifically, the federal government has maintained that drainage to remove water from a wetland is not, without more, a prohibited discharge regulated by the CWA.⁶³ However, this [23 ELR 10204] position is being reexamined by the federal agencies, and might change if the Corps modifies its regulations.

Drainage can destroy wetlands, but unless fill material is discharged, the federal agencies have taken the position that § 404 does not regulate drainage activities. This position was reaffirmed by the Fifth Circuit in Save Our Community v. U.S. Environmental Protection Agency.⁶⁴ After the district court found that the CWA could be violated by pumping water out of ponds,⁶⁵ the Court of Appeals reversed, emphasizing that there must be a "discharge" of material to trigger § 404 coverage.⁶⁶ The district court had adopted a functional approach, holding that the CWA prevented destruction of wetlands, regardless of the means used. The Fifth Circuit, relying on its own precedent in Avoyelles⁶⁷ and Save our Wetlands,⁶⁸ reiterated the conclusion that "without the existence of an effluent discharge of some kind, there is not coverage under Section 404."⁶⁹

The Fifth Circuit also invoked its decision in Orleans Audubon Society v. Lee,⁷⁰ as support for the conclusion that even deliberately draining a swamp is not a regulated discharge of fill material. In Orleans Audubon, a citizens group sued the Corps to compel the Agency to require a permit where wetlands were drained by the construction of a drainage canal and culverts. As the structures merely removed "clear water," the court found that the activities did not involve the discharge of a pollutant.⁷¹

Even though the government may not regulate the draining of a wetland by pumping, the property may remain a wetland "under normal circumstances," as defined in the regulations.⁷² The subsequent filling of such a drained wetland may thus require a § 404 permit. This point was recognized in Save Our Community.⁷³ The Corps has provided its personnel with guidance to this effect.⁷⁴ This guidance suggests that dewatering alone will not destroy the hydrologic regime of wetlands and a site specific judgment is required to decide how long a parcel must remain "dry" before it loses its normal wetland characteristics.

The Corps and EPA recently published a proposed regulation that would include the drainage of wetlands within the regulatory scope of the CWA by expanding the definition of "discharge."⁷⁵ The proposed rule would regulate minor, de minimis discharges into wetlands if those discharges were incidental to activities that destroy or degrade wetlands.⁷⁶ In the preamble to the proposal, the government explained its interpretation that the CWA does not provide any de minimis exceptions and that § 404(f)(2) supports the conclusion that activities, which result in major alterations to a waterbody should be regulated.⁷⁷ The proposal attempts to distinguish between normal dredging of navigational channels, where de minimis discharges of bucket drippings will not be regulated under § 404, and other activities where the discharge might be equally minimal but the impact on wetlands is substantial. These latter discharges will be regulated, based on their effects on the nation's waters. A final decision on this rule may come in 1993.

G. Runoff

Pollution carried by runoff is considered to be mostly nonpoint source pollution, which is not regulated by the CWA's prohibition against point source discharges. Normal erosion of soil is not a regulated activity.⁷⁸ There are situations, however, where fill material placed on uplands results in the discharge of fill into wetlands. Bulldozers, for example, might move piles of material to the edge of a wetland, allowing gravity and erosion to causefilling. And § 404 covers the placing of materials in a manner that will result in filling.

The court in Sierra Club v. Abston Construction Co.⁷⁹ was presented with a claim by environmentalists that earth moving activities associated with surface mining, and subsequent runoff from the activities, constituted prohibited discharges of pollutants from a point source. In this case, surface miners formed "spoil piles" composed of the earth and rocks removed to obtain access to coal beneath the surface, and rainwater carried off materials from these piles to the adjacent streams. The coal mining industry argued that only nonpoint source pollution, in the form of runoff, occurred from the piles. The court adopted the position presented by the United States, as amicus curiae, that runoff channeled by the operations of a discharger was point source pollution, in comparison to simple erosion of the surface, without any changes made by a person.

The court found that:

Gravity flow, resulting in a discharge into a navigable body of water, may be part of a point source discharge if the miner at least initially collected or channeled the water and other materials. A point source of pollution may also be present where miners design spoil piles [23 ELR 10205] from discarded overburden such that, during periods of precipitation, erosion of spoil pile walls results in discharges into a navigable body of water by means of ditches, gullies and similar conveyances, even if the miners have done nothing beyond the mere collection of rock and other materials.⁸⁰

Where the pollutant discharged in this manner is fill material, CWA § 404 governs.⁸¹ The Abston Construction court's reasoning was adopted in United States v. McCleskey,⁸² where the court denied a defendant's motion to dismiss an enforcement action premised, in part, on the defendant's placing fill material in a location where it would run off and settle into wetlands.

III. Summary of Regulated Activities

For the most part, placing any material, particularly solid materials, into wetlands will be considered the discharge of a pollutant subject to CWA § 404. Although the Corps has excused minor discharges, even if they were associated with draining a wetland, it is currently evaluating regulatory changes which would make such wetland-destructive activities subject to § 404.

[23 ELR 10206]

Chapter 4. Exemptions From § 404

The CWA exempts certain activities from the permit requirements of § 404. These statutory exemptions should bedistinguished from those components of the regulatory program that establish minimal requirements for specified activities, such as Corps' nationwide permits and general permits issued by the Corps on a regional or national basis.¹ Complete exemptions from the permit requirement are established in § 404(f).² Under this provision, a number of activities, most of which are related to agricultural practices, are classified as "non-prohibited discharges" that can occur without the need for a general, nationwide, or individual § 404 permit. The scope of these exemptions, and the kinds of activities protected by them, have been the subject of considerable controversy.

I. Statutory Exemptions

Section 404(f)(1) exempts from the CWA's permit requirement discharges associated with the following activities:

* normal farming, silviculture or ranching activities such as plowing, seeding, minor drainage, and harvesting;³

* maintenance of structures such as dikes, dams, levees, breakwaters, causeways and bridge abutments;⁴

* construction or maintenance of farm ponds or irrigation or drainage ditches;⁵

* construction of temporary sedimentation basins on construction sites;⁶

* farm or forest roads, or temporary roads for moving mining equipment, under the condition that best management practices are met and the water is neither impaired nor permanently changed;⁷ and

* actions authorized by an approved state regulatory program.⁸

However, these exempt activities are subject to the "recapture" provision of § 404(f)(2), which requires a permit if a discharge changes the use of the waters, impairs the waters' flow or circulation, or reduces the reach of the waters.⁹ The relationship between the exemptions in § 404(f)(1) and the recapture provision in § 404(f)(2) is designed to strike a balance, so that only routine activities with relatively minor impacts on waters are exempt. In contrast, those discharges that effect significant changes to a wetland or water body will be subject to the permit requirements.

The exemptions to § 404 have traditionally been construed narrowly.¹⁰ The legislative history of § 404(f) reflects that Congress intended the exemptions to cover only minor disturbances to wetlands. Former Senator Edmund S. Muskie (D-Me.), sponsor of the 1977 CWA amendments, addressed the exemptions as follows:

New subsection 404(f) provides that Federal permits will not be required for those narrowly defined activities that cause little or no adverse effects either individually or cumulatively. While it is understood that some of these activities may necessarily result in incidental filling and minor harm to aquatic resources, the exemptions do not apply to discharges that convert extensive areas of water into dry land or impede circulation or reduce the reach or size of the water body.¹¹

This oft-quoted description of § 404(f) addresses the section as a whole, both the exemptions of subsection (f)(1) and the recapture proviso of subsection (f)(2). It is the recapture provision that assures that conversions of "extensive areas of water into dry land" are not exempted from the permit requirement, while the exemptions allow the "incidental filling and minor harm" that Senator Muskie identified.

The legislative history of the § 404(f) exemptions was thoroughly reviewed in United States v. Huebner.¹² In Huebner, the defendant sought to avoid being held in contempt for violating a consent decree by arguing that its filling activities were exempt under a number of subparts of § 404(f)(1). The Seventh Circuit Court of Appeals explained the legislative history in depth to support its conclusion that the exemptions were to be narrowly construed: "Congress enacted in the 1977 amendments a delicate balance of exceptions that protected wetlands while permitting routine activities to go on unimpeded."¹³ The court rejected each of Huebner's claimed exemptions.

The other activities exempted under § 404 are federal projects specifically authorized by Congress. Under § 404(r),¹⁴ federal projects that Congress authorizes are not subject to § 404 permit requirements as long as the agency conducting the project submits an environmental impact statement (EIS) to Congress in conjunction with either authorizing legislation or appropriation requests. These projects, which include such things as Corps' navigation projects and water projects, are subject to a separate set of requirements similar in many respects to the § 404 permit requirements.¹⁵

[23 ELR 10207]

II. The Corps' Regulations: Explaining the Exemptions

The Corps' regulations address § 404(f)¹⁶ and provide some definitions and examples of exempt activities. For each category of exempt discharges, the Corps' regulations provide that if the activity converts a wetland to upland or to a new use, it will not fall within the exemption. For example, the regulations provide that "[a]ctivities which bring an area into farming, silviculture, or ranching use are not part of an established operation."¹⁷

Under the regulations, discharges and alterations that are made to maintain water control ditches or dikes in order to maintain an area in a wet condition for a crop, such as rice or cranberries, are exempt.¹⁸ However, discharging materials to bring previously unfarmed areas into wetland farming is not exempt.¹⁹ The regulations also allow discharges that are incidental to the emergency removal of sandbars or blockages of preexisting drainage ways, as long as the removal does not enlarge or extend the drainage way.²⁰ The regulations also exempt all forms of tillage plowing, but do not include the redistribution of rocks or soil to change wet areas to dry land. For example, grading surface materials into wetlands or crushing stone to fill areas are activities not considered normal plowing or tilling of the soil for farming.²¹

The regulations set forth the best management practices (BMPs) that must be followed to qualify for the § 404(f)(1)(E) exemption for constructing farm or forest roads, or temporary roads for moving mining equipment. Under the BMPs in 33 C.F.R. § 323.4(a)(6), these roads must be limited in size and located to minimize stream crossings and discharges of fill material. Culverts or bridges must be placed to accommodate floodwaters. And the fill material must come from upland sources, not the waterbed. Road construction design must account for any movement of aquatic species in the waterway, must avoid waterfowl breeding habitat and shellfish beds, and may not impair endangered or threatened species or their critical habitat. The fill material must not contain toxic pollutants, and must not impair any public water supply intake. These BMPs are aimed at minimizing short- and long-term impacts on watercourses caused by road building activities that are exempt.²²

The § 404(f) exemptions are self-implementing. Persons undertaking any of the exempt activities are not required to give the Corps or EPA notice, or to keep any records. Moreover, claimed exemptions are policed through normal enforcement mechanisms.²³

With respect to the § 404(f)(2) recapture provision, the Corps' regulations establish a presumption that fill activities that result in significant changes to the water flow are not exempt. The regulations state that "[w]here the proposed discharge will result in significant discernible alterations to flow or circulation, the presumption is that flow or circulation may be impaired by such alteration."²⁴ The regulations provide examples and also note that "[a] conversion of a Section 404 wetland to a non-wetland is a change in use of an area of waters of the United States."²⁵

The Corps has issued several RGLs addressing exempt activities,²⁶ but as of 1992, none of them remained in effect. In 1990, the Corps and EPA issued a joint field memorandum addressing the application of § 404 to agricultural activities, and in particular, in relation to the § 404(f) exemptions.²⁷ The field memorandum was precipitated by public and congressional criticism of both EPA and the Corps for imposing § 404 obligations on farmers. The agencies encouraged their field offices to widely distribute the memorandum.²⁸

The field memorandum describes "normal farming" activities encompassed by the § 404(f)(1)(A) exemptions in a manner similar to the regulations and the discussion above. It also provides additional examples of normal farming that would fall within the exemptions. These include changing cultivation techniques, such as discing between crop rows to control weeds, rather than using herbicides; planting different crops each year in an established rotation, such as soybeans one year and rice the next; and rotating rice and crawfish production, although the construction of fish ponds would not be considered normal farming.²⁹ The field memorandum indicates that EPA and the Corps will further develop uniform definitions of normal farming practices in consultation with land grant colleges and the cooperative extension services.³⁰

The field memorandum describes the § 404(f)(2) "recapture" provision as a two-part test, where the exemption is lost if both parts of the test are satisfied: the activity is a new use and the activity reduces the reach or impairs the flow of waters.³¹ The memorandum also emphasizes that converting wetlands to new agricultural uses does not fall within the § 404(f) exemption.

The field memorandum also addresses certain specific agricultural practices that have given rise to congressional [23 ELR 10208] inquiries: rice farming and fish ponds.³² The construction of rice levees in wetlands, which are in established agricultural crop production, is described as "normal farming" within the § 404(f) exemption. The memorandum indicates that to qualify for the exemption, rice levees must generally be less than 24 inches high and be solely for the purpose of maintaining water levels necessary to rice production. With respect to fish ponds, the memorandum indicates that the agencies may establish a general permit³³ for converting wetlands to fish ponds where the ponds are developed in wetlands already used for agricultural production. Neither the § 404(f) exemption, nor any other provision of § 404 would authorize other conversions of wetlands to fish ponds without a CWA permit.

III. The § 404(f) Exemptions: Case Law

Courts have addressed several aspects of the § 404(f) exemptions. Many cases involve property owners engaged in agricultural activities, expanding such activities, or otherwise converting to such activities, and trying to come within these exemptions. For the most part, courts have construed the exemptions narrowly and have held that most allegedly exempt activities require a permit.

A. Normal Farming

Converting wetlands to new farmland is not generally within the § 404(f)(1)(A) exemption for "normal" farming.³⁴ As the CWA and the regulations provide, the exemption protects established farming, including the conventional rotation of fields, which might leave an area lying fallow for a season. The presence or reemergence of wetland characteristics during that seasonal rotation will not vitiate the exemption. In contrast, the courts have agreed that introducing farming to areas of property not previously farmed on a regular basis is not exempt.³⁵ Even where a crop is water-dependent, such as cranberry beds, the conversion of a wetland to such a new farming use is not within the scope of the exemption.³⁶ However, under the case law, simply changing from one wetland crop to another would not constitute a new use of the wetland.³⁷

Similarly, the exemption for normal silviculture means ongoing tree harvesting activities, not the clearing of timber to convert forested wetlands to other agricultural activities.³⁸ The courts have also held that converting wetlands to fish farming ponds constitutes a new use, which does not qualify for the exemption.³⁹

In addition, filling to stabilize riverbanks and rechannel streambeds does not fall within the scope of § 404(f)(1)(A) as normal ranching or upland soil and water conservation practices. A court rejected such a claim where a landowner straightened a meandering creek by constructing a channel and moving streambed materials along the banks to protect his property and allow further development for recreational purposes.⁴⁰ These activities were not part of normal ranching or farming practices, but rather reflected changes in the water flow and use of the property, which required a § 404 permit.

B. Minor Drainage and Drain Maintenance

Section 404(f) provides two exemptions related to minor drainage; one for filling incidental to upland drainage (§ 404(f)(1)(A)), and one for maintaining irrigation and drainage ditches (§ 404(f)(1)(C)). These activities concern filling related to the drainage of uplands, rather than the regulation of activities undertaken to drain wetlands.⁴¹ The activities associated with drainage and drainage ditches that fall within these exemptions have been explored in the regulations and in the case law.

Both the Corps' and EPA's regulations make clear that only minor discharges that are a part of normal practices are encompassed in § 404(f)(1)(A)'s provision for "minor drainage." Each agency's regulation provides specifically that minor drainage "does not include drainage associated with the immediate or gradual conversion of a wetland to a non-wetland … or conversion from one wetland use to another (for example, silviculture to farming)."⁴² In United States v. Akers,⁴³ the court rejected a claim that the construction of a dike through a wetland was part of normal farming activities comparable to the minor drainage exemption of § 404(f)(1). Where the activity imposed major changes on the wetland, it would not be considered "minor."

In contrast to the "minor drainage" provision of § 404(f)(1)(A), the drain maintenance exemption of § 404(f)(1)(C) has been considered by several courts. In United States v. Sargent County Water District,⁴⁴ a county undertook a project to dredge a drainage ditch that had been constructed in the early 1900s, but had gradually silted in. By the time the dredging occurred, the drain was barely functioning. The ditch ran through miles of isolated wetlands [23 ELR 10209] utilized by tens of thousands of migratory waterfowl as breeding and resting habitat. The county undertook the ditch clearing at the urging of property owners who sought to remove sheeting water from their land to put more acres into cultivation. In the course of dredging out the ditch, the dredged material was placed (side casted) in the wetlands along the ditch. The court rejected motions for summary judgment, finding that a trial was necessary on liability; the primary issue for trial would be whether these activities fell within the exemption for drain maintenance. The court indicated that precise information about the condition of the drain between the time of original construction and the alleged maintenance clearing was needed. Whether drain clearing was exempt would depend on whether the original drain was modified in design or capacity, and whether the drain had been periodically maintained over the years.

A similar fact situation was presented in United States v. Stearns County.⁴⁵ A seven-mile-long open ditch was completed in 1902, but required repair over 70 years later. After several wet seasons between 1975 and 1986, farmers located along the ditch became dissatisfied with the draining capacity of the unrepaired ditch and requested that the county dredge the ditch to its original contours. The county asked the Corps whether the deposit of fill in the adjoining wetlands would be exempt as part of drainage ditch maintenance. Although the Corps advised that a permit was required, the county disagreed and commenced work. An enforcement action followed, presenting the issue of the scope of the drain maintenance exemption.

As in Sargent County, the Stearns County court found that a trial was necessary to decide whether the particular actions, which indisputably constituted the discharge of fill from a point source, were exempt under § 404(f)(1)(C).⁴⁶ The court requested evidence on the scope of historical wetlands subject to drainage by the ditch and the contours and capacity of the drain as designed and as repaired. In Stearns II, the court addressed additional issues including abandonment, which involves the question of whether the drainage ditch was being maintained through periodic, regular maintenance, or whether it had been fully abandoned. If the drain was abandoned, the county would be constructing a new drain, rather than maintaining an old one. On this issue, the court found that a trial was necessary, since material facts were in dispute. The Stearns County litigation remains pending.⁴⁷

C. Maintenance of Preexisting Structures

In United States v. Zanger,⁴⁸ a property owner tried to exculpate his movement of earth and rechannelization of a stream from § 404 as exempt maintenance of upland irrigation canals. The court found, however, that the activities were designed to bring new areas into cultivation, rather than maintain existing structures. In addition, the work resulted in significant changes to the waterway, inconsistent with the recapture provision of § 404(f)(2).

D. Recapture

In most instances where courts have denied a § 404(f)(1) exemption for contested activities, they have noted that the claimed action resulted in a significant change in the wetland, thus subjecting the activity to the recapture provision of § 404(f)(2). For example, in Akers,⁴⁹ the landowner claimed that his wetland conversions were part of the continued farming on his property, even though the conversions brought new acres under cultivation. Nonetheless, the court found that he was conducting "non-exempt … activities which change a wetland's hydrological regime."⁵⁰ The court compared those complete changes in land uses, which fall outside of the exemption, to simply changing the kind of wetland farming conducted: "[T]his is not to say that he could not change from one wetland crop to another without running afoul of the recapture provision."⁵¹

Even though § 404(f)(2) recaptures filling that is "incidental to any activity having as its purpose bringing an area of the navigable waters" into a new use, the recapture provision focuses on the effect of an activity, rather than the intent of the party conducting the filling. In Stearns County,⁵² the court agreed that the facts, rather than an individual's subjective intent, controlled, and that the court must look to the actual past use of the area to see if the filling converts a wetland to a new use. An objective test for recapture was adopted in Akers⁵³ as well: "It is thus the substantiality of the impact on the wetland that must be considered in evaluating the reach of § (f)(2)."⁵⁴

The § 404(f)(2) recapture provision must be given a reasonable reading or it would swallow the exemptions. Any of the exempted activities impair the waters to a degree, but the government does not require a permit for those exempt activities that result in minor impacts to the nation's waters, including wetlands.

IV. Summary of Exemptions

The § 404(f) exemptions are narrowly construed, so persons who conduct activities within the scope of any of these exemptions must take care to understand the limits imposed. Agriculturally related practices, which fall within some of the CWA's exemptions, present additional difficulties because the CWA's exemptions do not match the exemptions provided under certain USDA programs.⁵⁵ Property owners should not expect that their conversion of significant areas of wetlands to upland will qualify for a § 404(f) exemption.

[23 ELR 10210]

Chapter 5. Nationwide and General Permits Under § 404

To provide flexibility in administering the § 404 permit program, § 404(e) authorizes the Corps to promulgate general permits, on a state, regional, or nationwide basis.¹ The Corps' general permits that are nationally applicable are established in regulations, after notice and an opportunity for comment.² The Corps' regulations also authorize the issuance of general permits on a regional or statewide basis by district or division engineers, rather than headquarters.³ For ease of reference, general permits promulgated by headquarters for nationwide application are called "nationwide permits," while the locally issued general permits are called "general permits." The CWA provides that nationwide and general permits are valid only for a period of five years.⁴ The Corps recently revised and reissued its nationwide permits.⁵

Both nationwide and general permits are designed to apply to categories of filling activities that "are similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment."⁶ Statutory authority for nationwide and general permits was added in the 1977 CWA amendments to eliminate individual review and allow certain activities to proceed with little delay or paperwork.⁷ A nationwide or general permit is essentially a permit by rule; compliance with the rules setting forth the nationwide permit satisfies § 404.

I. Nationwide Permits

The Corps promulgated its basic, post-1977 CWA amendment program for nationwide permits in 1982,⁸ establishing 26 nationwide permits. In 1986, these 26 nationwide permits were revised and reissued for an additional five years.⁹ In 1991, the Corps substantially revised the nationwide permits, restructured the regulations, and added 10 new nationwide permits, bringing the total to 36.¹⁰

Nationwide permits reflect a judgment that filling in accordance with the nationwide criteria imposes so minimal an impact that the full review given individual permits is not warranted. In keeping with this interpretation, the nationwide program involved very little individualized review until 1991. For the most part, an activity consistent with a nationwide permit could simply go forward without the need for any filings or the Corps' review.

The 1991 program revisions, however, changed this balance. The revised regulations give district engineers greater authority to modify, suspend, or revoke nationwide permits for specific activities; broaden the basis that district engineers can use to exercise discretionary authority to conduct a "public interest" review of the filling activity;¹¹ and provide that district engineers must require an individual permit whenever a filling activity would have more than a minimal adverse impact on the aquatic environment. In addition, predischarge notification (PDN) is now required for several of the nationwide permits. And when such notice is required, the applicant must provide a wetlands delineation.

A. General Conditions for Nationwide Permits

The revised regulations identify general conditions that apply to all nationwide permits, and additional conditions that may be applied to specific nationwide permits. The district engineer has the discretionary authority to modify, suspend, or revoke nationwide authorizations, and subject specific activities to individual permit review.¹² This authority may be invoked when a district engineer "determines sufficient concerns for the environment or any other factor of the public interest so requires."¹³ In particular, a district engineer must take action if the activity "would have more than a minimal individual or cumulative adverse effect" on the environment.¹⁴ Significantly, individual permit review is required if endangered species¹⁵ or their designated critical habitat is at issue, or if properties subject to the National Register of Historic Places are involved.¹⁶ In addition, no activity under a nationwide permit may impact on tribal properties or designated wild and scenic rivers.¹⁷

The regulations also provide a number of general conditions concerning the effects that an activity may have on the environment. An activity may not have more than minimal effects on navigation, erosion, siltation, and aquatic life.¹⁸ Also, the regulations provide a general condition describing the PDN that is required under some of the nationwide permits. Where such PDN is required, the applicant must allow 30 days for the Corps to review the intended activity. The PDN must include a wetlands delineation, and the 30-day period doesnot start until the wetlands delineation is completed.¹⁹ In addition, a district engineer may impose mitigation conditions on activities subject to nationwide permits for which predischarge notice is required.²⁰

Where PDN is required, the revised regulations also authorize the imposition of many of the requirements that [23 ELR 10211] are part of the individual permit program. District engineers are given the discretion to tailor the conditions to the specifics of the activity. Under these regulations, the Corps can impose regional or site-specific conditions.²¹

B. State § 401 Certifications

States are authorized by CWA § 401 to determine whether activities permitted by the federal government are in accordance with state water quality standards.²² Since nationwide permits are federal permits, states retain their right to certify consistency between a nationwide permit and the state water quality standards.²³ States may choose to certify consistency generically for some or all of the nationwide permits, or they may retain the right to review nationwide permits individually.²⁴ This does not mean that the activity covered by the federal nationwide permit must receive a federal individual permit. Rather, the district engineers must assure that each state receives appropriate notice for activities subject to nationwide permits, where the state has not generically certified that such activities are consistent with state water quality standards. Some states maintain that a generic denial of consistency for a nationwide permit means that the Corps must process individual federal permits for that category of activities,²⁵

In 1992, the Corps issued an RGL to explain the relationship between state authority to certify under § 401 and the nationwide permits.²⁶ This RGL provides that if a state suggests conditions on a nationwide permit that would change the permit substantially, the Corps' district should treat the state action as a denial of certification, rather than accept the conditions.²⁷ The Corps' districts are encouraged to work cooperatively with states to develop reasonable conditions, but the RGL indicates that the basic integrity of the nationwide permits should not be defeated through imposition of unreasonable state conditions.

II. Specific Nationwide Permits

Nationwide permits (nationwides) are generally available for minor activities, specialized activities, and activities governed by other authorities. As mentioned, there are currently 36 nationwides and they are referenced by their number (e.g., Nationwide 26). These nationwides are summarized by number below, with a short description of their requirements. Individuals should consult the regulations for further detail about any specific activity.²⁸ In addition, state or local law may govern activities that are subject to nationwides.

1. Aids to Navigation

These must be placed in accordance with the U.S. Coast Guard's regulations.

2. Structures in Artificial Canals

This covers docks or piers in residential canals.

3. Maintenance, Repair, Rehabilitation, or Replacement of Previously Authorized Fill Structures

Because of the potential for abuse, this nationwide is carefully limited. Maintenance dredging and beach restoration are not authorized under this nationwide. Repair consistent with the original authorization is allowed.

4. Fish and Wildlife Harvesting, Enhancement, and Attraction Devices and Activities

This authorizes such things as duck blinds, crab and lobster traps, or clam and oyster digging. Artificial reefs, impoundments, or the construction of fish ponds are not authorized by this nationwide.

5. Scientific Measurement Devices

Tide gages, water quality testing devices, and recordation devices are covered by this nationwide. Small weirs and flumes for these purposes may be constructed as long as the discharge is less than 25 cubic yards; for discharges between 10 and 25 cubic yards, a district engineer must be notified prior to commencing the activity.

6. Survey Activities

This includes core sampling, seismic testing, and other exploratory surveys. However, this nationwide does not include either roads or pads used for survey activities or drilling test wells for oil and gas, although the plugging of such wells is included.

7. Outfall Structures

This covers outfall pipes and other structures authorized by or associated with the CWA's NPDES program, and requires PDN. This nationwide does not cover water intake structures.

8. Oil and Gas Structures

Structures placed on the outer continental shelf for oil and gas activities that are subject to the authority of the DOI come under this nationwide. There are additional, specific limitations on where such structures may be placed to protect navigation, special aquatic areas, and dredged material disposal areas.

9. Structures in Fleeting and Anchorage Areas

Buoys, floats, and similar devices may be placed in a manner consistent with the U.S. Coast Guard's standards.

10. Mooring Buoys

This authorizes noncommercial, single-boat mooring buoys.

11. Temporary Recreational Structures

Temporary markers or buoys used for water skiing events or boating competitions are authorized, as long as they are removed within 30 days of the event. The reservoir manager must approve such markers at Corps' managed reservoirs.²⁹

12. Utility Line Backfill and Bedding

As long as the predischarge contours are maintained, utility lines can be placed under this nationwide. However, activities to drain U.S. waters, such as the placement of drainage tiles, are not included. The utility is authorized to temporarily sidecast fill material into U.S. waters, as long [23 ELR 10212] as it is removed within three months. There are additional conditions to minimize the impacts of this activity.

13. Bank Stabilization

Bank stabilization must meet a number of specific standards to qualify under this nationwide. For activities more than 500 feet in length, PDN is required. All bank stabilization activities must avoid discharges into special aquatic sites, including wetlands. The fill material cannot impair the flow of the waterway, and cannot be placed in a manner that will erode under normal and high flow conditions.

14. Road Crossings

Fill of less than one-third of an acre and less than 200 linear feet is authorized by this nationwide. The road crossing must be culverted, bridged, or otherwise designed to withstand high flows and tides. Where the road crossing is in a special aquatic site, such as a wetland, PDN is required. Some road crossings may be eligible for an exemption from any CWA permit requirement under § 404(f)(1)(E) and 33 C.F.R. § 323.4.

15. U.S. Coast Guard-Approved Bridges

Discharges subject to the Coast Guard's approval for some bridge structures may use this nationwide permit. However, causeways and approach fills are not included and will require an individual permit.

16. Return Water From Upland Contained Disposal Areas

Although the return water from upland disposal areas for dredged material is classified as a discharge (33 C.F.R. § 323.2(d)), it is authorized by this nationwide permit.

17. Hydropower Projects

Small hydropower projects regulated by the Federal Energy Regulatory Commission at existing reservoirs are authorized by this nationwide. PDN is required, and the project must be smaller than 5,000 kilowatts of power generation.

18. Minor Discharges

This nationwide authorizes discharges of less than 25 cubic yards of fill, which cause the loss of less than one-tenth of an acre of wetlands. This "one-tenth of an acre" includes not only the direct fill area, but any other area flooded, drained, or otherwise impacted by the filling. For minor discharges over 10 cubic yards, PDN is required, and must include a wetlands delineation. This minor discharge must be part of a single and complete project, and cannot be fore stream diversion.

19. Minor Dredging

Dredging of no more than 25 cubic yards from U.S. waters is authorized, but cannot occur in wetlands, coral reefs, fish spawning areas, and other protected sites.³⁰

20. Oil Spill Cleanup

Activities related to cleaning up spills of oil or hazardous substances are subject to the national contingency plan under CWA § 311³¹ and other authorities, and they are authorized for § 404 purposes by this nationwide permit.

21. Surface Coal Mining Activities

Minor activities regulated under the Office of Surface Mining in the DOI are authorized, provided that PDN is given to the Corps. For discharges into special aquatic sites, such as wetlands, a wetland delineation is required.

22. Removal of Vessels

This nationwide authorizes the removal of wrecked, abandoned, or disabled vessels, although it does not authorize the removal of historic properties without PDN. A district engineer must affirmatively determine that the conditions concerning historic properties will be met.

23. Approved Categorical Exclusions

This nationwide covers actions by other federal agencies that are categorical exclusions from the requirement for an EIS under NEPA.³² The other federal agency must provide the district engineer with its categorical exclusions, and the district engineer may impose additional conditions on the activity as is necessary.

24. State Administered § 404 Programs

Activities authorized under approved state programs³³ are authorized by this nationwide.

25. Structural Discharge

This nationwide authorizes filling into construction forms for pile supports, and bridge or walkway footings. This does not authorize filling to support buildings, parking areas, or other such structures, nor does it authorize housepads. Even the structures eligible for this nationwide may require permits under § 10 of the RHA.

26. Headwaters and Isolated Waters Discharges

This nationwide authorizes discharges affecting no more than 10 acres of waters, including wetlands, and requires PDN if it will affect more than one acre. This notification must include a wetlands delineation. The discharge must be part of a complete project. The 1-acre limits and 10-acre limits are absolute, and cannot be increased by any mitigation plan. The filling authorized by this nationwide can occur only in "headwaters," which are defined as nontidal waters with an average annual flow of less than five cubic feet per second,³⁴ or in "isolated waters," which are defined as nontidal and neither part of any surface water system nor adjacent to such surface waters.³⁵

There are special conditions in Nationwide 26 for residential subdivisions where filling would affect more than one acre of waters. If the aggregate loss is over 10 acres, the nationwide is unavailable unless a special determination is made by a district engineer that the environmental impacts are minimal.

Nationwide 26 has been controversial in part due to the large amounts of wetland losses that can result under this authorization.³⁶ This nationwide was originally included in the 1977 Corps' regulations, and expanded in its 1982 regulations. After the 1982 regulations were challenged by [23 ELR 10213] environmental groups, resulting in a settlement,³⁷ the Corps modified the "headwaters" nationwide to limit it to 10 acres and require PDN for areas between 1 and 10 acres. Even though this represented a victory for the environmental groups, Nationwide 26 has continued to concern many observers who feel it still authorizes excessive wetlands destruction. In the 1991 revisions, the Corps summarized the comments received on this nationwide, but declined to make any major changes to Nationwide 26.³⁸

The application of Nationwide 26 has arisen in litigation more than any of the other nationwides. The cases have established that Nationwide 26 is not available without compliance with the PDN requirement.³⁹ In addition, courts have held that the Corps' decision that Nationwide 26 is not available, and that an applicant must apply for an individual permit, is not immediately subject to judicial review.⁴⁰

Concerned with possible abuses of Nationwide 26, the Corps has addressed how multiple small fills are to be treated under the nationwide permit program. In 1988, the Corps issued an RGL addressing the nationwide permit program.41 This RGL makes clear that Nationwide 26 cannot be "stacked" upon itself; that is, used more than once on a single project.42 In the preamble to the revised nationwide permits, the Corps makes clear that it does not expect to allow abuse of the nationwide permits through piecemealing of projects, to allow nationwide permits for individual segments of what are, in fact, complete projects.43 In fact, the addition of special provisions in Nationwide 26 for subdivision filling was designed to prevent abuses of this nature.44

27. Wetland and Riparian Restoration and Creation Activities

Restoration activities subject to the control of another federal agency, including binding agreements between private landowners and the FWS or the SCS,45 are covered by this nationwide permit. There are limitations on the size and nature of the activities authorized. When a wetland is restored, it becomes subject to Corps' jurisdiction. This nationwide does not authorize conversion of wetlands to other uses, such as waterfowl impoundments.

28. Modifications of Existing Marinas

Reconfiguration of existing docks is authorized, but new dredging or construction of additional docks or slips is not.

29., 30., 31. Reserved

32. Completed Enforcement Actions

Fill that remains in place after a final judicial action brought by the government (but not through citizen suits), including a consent decree or settlement, is authorized by this nationwide permit. The fill must be consistent with the terms of the judicial resolution.

33. Temporary Construction, Access, and Dewatering

Filling necessary for the dewatering of construction sites is authorized by this nationwide, but must meet specified best management practices to protect water quality. PDN is also required, and the district engineer is specifically authorized to impose additional conditions to minimize environmental impacts. This nationwide does not authorize temporary structures for mining activities or for marinas that have not been authorized by the Corps.

34. Cranberry Production Activities

This new nationwide authorizes limited filling for expansion of existing cranberry production operations. The total area disturbed cannot exceed 10 acres, PDN is required, and there can be no "new loss of wetland acreage." The 10-acre limit is measured over the lifetime of the nationwide permit. The Corps received many comments on this nationwide after proposing it. In response, the Corps explained, generally, that it expected district engineers to monitor the potential for abuse through review of PDNs.46 The Corps also made clear that this nationwide does not authorize new cranberry operations.

The addition of a nationwide permit for cranberry production activity follows years of contested enforcement litigation over the conversion of wetlands to cranberry bogs.47 The new nationwide permit does not authorize such conversions, but may effectively exculpate the use of illegally constructed cranberry bogs where the only ongoing fill is maintenance of the structures in accordance with the nationwide permit. In 1992, the Corps published RGL 92-2, further addressing Cranberry Production.48 The RGL explains that filling to convert wetlands to cranberry production is subject to an individual permit. The RGL thus clarifies that conversions to a new use are not covered by the nationwide permit.

35. Maintenance Dredging of Existing Basins

This nationwide authorizes maintenance dredging to the original authorized depths for existing boat berths, canals, and marina basins. The dredged material must be disposed of in an upland site, or separately permitted.

36. Boat Ramps

Construction of boat ramps is authorized if it does not exceed 50 cubic yards of fill, the ramp is less than 20 feet wide, base material is gravel, crushed stone, or other similar fill, and no material is placed in special aquatic sites, such as wetlands.

37. Emergency Watershed Protection and Rehabilitation

This nationwide covers emergency work required by the SCS or the U.S. Forest Service under specific regulatory programs.49 PDN to the district engineer is required.

38. Cleanup of Hazardous and Toxic Waste

Cleanups subject to other governmental authority, including court orders, are authorized by this nationwide permit. [23 ELR 10214] PDN is required, and, for special aquatic sites like wetlands, there must be a wetlands delineation. This nationwide does not authorize the creation of new disposal sites for hazardous or toxic wastes.

39. Reserved

40. Farm Buildings

Fill of less than one acre in "farmed wetlands" for agriculturally related buildings is authorized by this nationwide. "Farmed wetlands" are areas that were in agricultural crop production prior to December 23, 1985.50 Activities in prairie potholes, playa lakes, and vernal pools may not be conducted under this nationwide permit.

The new regulations explain the way nationwide permits may be used. As a general rule, an individual project may not be "segmented" to qualify for a nationwide permit and avoid the need for an individual permit. The Corps will look at the whole project to determine whether an individual permit is required. Thus, for the most part, the same nationwide permit is not available more than once on a project, unless it is used for severable, discrete parts. However, separate parts of a project may qualify for different nationwide permits. Because these determinations are dependent on the particular facts of each project, the regulations must be carefully consulted and applicants should discuss project plans with the Corps in advance.51

III. General Permits

General permits are issued in specific Corps' districts or divisions authorizing particular activities.52 General permits must be promulgated through notice and comment, like nationwide permits.53 Like nationwides, these regional general permits may be conditioned with requirements for case-by-case reporting or notification.54 The Corps has expressed an intention to use the general permit authority to authorize specified activities in states that are subject to sufficient state regulatory authority. This statewide general permit approach would function as a substitute for full state program authorization in administering the § 404 program.55

General permits are available by contacting the local district engineer and requesting the applicable general permits, if any are in effect.

IV. Summary of Nationwide and General Permits

Nationwide and general permits allow flexibility in administering § 404, so that many routine activities can occur without the need for an individual permit. As with the § 404 exemptions, however, a person conducting activities subject to a nationwide permit must adhere carefully to the terms of the regulations. This is particularly important because the 1991 revisions imposed new requirements for certain nationwides.

1. Several seminal reports issued between 1984 and 1991 reflect the emerging national assessment of the strengths and weaknesses of federal wetlands law. In 1984, the Office of Technology Assessment (OTA) analyzed the federal government's approaches to wetlands and made recommendations for policy changes. See OFFICE OF TECHNOLOGY ASSESSMENT, U.S. CONGRESS, Pub. No. OTA-0-206, WETLANDS, THEIR USE AND REGULATION (1984). The Conservation Foundation convened the National Wetlands Policy Forum at the request of the U.S. Environmental Protection Agency (EPA) and, in 1988, issued its report and recommendations for improving wetlands programs. See THE CONSERVATION FOUNDATION, PROTECTING AMERICA'S WETLANDS: AN ACTION AGENDA, THE FINAL REPORT OF THE NATIONAL WETLANDS POLICY FORUM (1988) [hereinafter CONSERVATION FOUNDATION REPORT]. In 1990, the Department of the Interior's (DOI's) Fish and Wildlife Service (FWS) issued a report in response to a congressional request for information on historic wetlands loss. See THOMAS E. DAHL, U.S. DEP'T OF THE INTERIOR, WETLANDS LOSSES IN THE UNITED STATES 1780S TO 1980S (1990) [hereinafter WETLANDS LOSSES]. Two Government Accounting Office (GAO) reports also catalogue the status of wetlands under existing legal regimes. See U.S. GAO, Pub. No. GAO/RCED-92-79FS, Wetlands Overview: Federal and State Policies, Legislation and Programs (1991) [hereinafter GAO-WETLANDS OVERVIEW] and U.S. GAO, Pub. No. GAO/RCED-88-110, WETLANDS: THE CORPS OF ENGINEERS' ADMINISTRATION OF THE SECTION 404 PROGRAM (1988) [hereinafter GAO-CORPS § 404 PROGRAM].

2. See CONSERVATION FOUNDATION REPORT, supra note 1, at 10; see also 33 C.F.R. § 320.4(b)(1) (1992); 40 C.F.R. § 230.41 (1992).

3. Id.

4. GAO-WETLANDS OVERVIEW, supra note 1, at 13.

5. Id. at 11.

6. See, e.g., CONSERVATION FOUNDATION REPORT and GAO-WETLANDS OVERVIEW, supra note 1.

7. See, e.g., H.R. 1330, 102d Cong., 1st Sess. (1991).

8. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA 001-071. Pub. L. No. 95-217, § 2, 91 Stat. 1566 (1977) states that "[t]his Act may be cited as the 'Federal Water Pollution Control Act' (commonly referred to as the Clean Water Act)." The 1972 amendments, Pub. L. No. 92-500, 86 Stat. 816, so thoroughly changed the federal law of water pollution control that the post-1972 FWPCA simply came to be known as the Clean Water Act. For ease of reference and to avoid confusion, this Article will refer to the statute in its current form as the Clean Water Act (CWA).

9. 33 U.S.C. § 1344, ELR STAT. FWPCA 060.

10. Pub. L. No. 99-198, 99 Stat. 1354 (1985) (codified as amended in scattered sections of Titles 7, 12, 15, 16, 21, 29, 42, and 46 U.S.C.). The conservation provisions of the Act are codified in 16 U.S.C. §§ 3801-3862.

11. 16 U.S.C. §§ 3821-3823 (1988). See ELR STAT. OUT. 117.

12. Id. at §§ 3811-3813.

13. Id. at § 3831.

14. Id.

15. 16 U.S.C. §§ 3501-3510 (1988). See ELR STAT. OUT. 043.

16. 42 U.S.C. §§ 4001-4128 (1988).

1. See Rivers and Harbors Act of 1890, ch. 907, 26 Stat. 426, 453-54 (1890), and the amendments added by the Refuse Act of 1899, ch. 425, 30 Stat. 1121 (1899); current version at 33 U.S.C. §§ 403, 407 (collectively referred to as the RHA).

2. 33 U.S.C. § 403 (1988).

3. Id. at § 407.

4. Id.

5. See, e.g., United States v. Republic Steel Corp., 362 U.S. 482 (1960) (discharge of industrial solids); United States v. Standard Oil, 384 U.S. 224 (1966) (discharge of gasoline).

6. 16 U.S.C. § 662 (1988).

7. Memorandum of Understanding Between the Secretary of the Interior and the Secretary of the Army (July 13, 1967) (reprinted at 33 Fed. Reg. 18672-73 (1968)).

8. 33 Fed. Reg. 18672 (1968).

9. See Zabel v. Tabb, 430 F.2d 199, 1 ELR 20023 (5th Cir. 1970), cert. denied, 401 U.S. 910 (1971).

10. 42 U.S.C. §§ 4321-4370a, ELR STAT. NEPA 001-012.

11. Exec. Order No. 11574, 35 Fed. Reg. 19627 (1970).

12. Kalur v. Resor, 335 F. Supp. 1, 1 ELR 20637 (D.D.C. 1971). See also Comment, Kalur v. Resor, Water Quality and NEPA's Application to EPA, 2 ELR 10025 (1972).

13. Pub. L. No. 92-500, 86 Stat. 816 (1972).

14. The antecedents to the CWA are also described in WILLIAM L. WANT, LAW OF WETLANDS REGULATION § 2.02 (Clark Boardman Envtl. Law Series No. 3 1992), and NATURAL RESOURCES LAW INST., LEWIS & CLARK LAW SCHOOL, A GUIDE TO FEDERAL WETLANDS PROTECTION UNDER SECTION 404 OF THE CLEAN WATER ACT, ANADROMOUS FISH LAW MEMO (1988).

15. 33 U.S.C. § 1251(a), ELR STAT. FWPCA 003.

16. Id. at § 1311(a), ELR STAT. FWPCA 028.

17. Id. at § 1342, ELR STAT. FWPCA 057.

18. Id. at § 1311, ELR STAT. FWPCA 028.

19. See, e.g., 33 U.S.C. §§ 1313, 1314, ELR STAT. FWPCA 032-036.

20. See generally 33 U.S.C. §§ 1281-1299 (CWA Title II, grants for the construction of treatment works).

21. 33 U.S.C. §§ 1251(b), 1342(b), 1344(g), ELR STAT. FWPCA 003. 058, 061.

22. 33 U.S.C. § 1362(b), ELR STAT. FWPCA 064; see also infra Chapter 3(I).

23. 33 U.S.C. § 1344, ELR STAT. FWPCA 060.

24. The Senate's Bill, S. 2270, gave EPA authority to issue dredge and fill permits.

25. The conference committee adopted the House version, which gave the Corps this authority. CONF. REP. No. 1236, 92d Cong., 2d Sess. (1972), reprinted in 1972 U.S.C.C.A.N. 3818-20.

26. 33 U.S.C. § 1344(a), ELR STAT. FWPCA 060.

27. Id. at § 1344(b), ELR STAT. FWPCA 060.

28. 40 C.F.R. pt. 230 (1992). See infra Chapter 6, Individual Permits Under § 404.

29. 33 U.S.C. § 1344(c), ELR STAT. FWPCA 060.

30. See infra Chapter 6, Individual Permits Under § 404.

31. See infra Chapter 7, Enforcement of § 404.

32. The Corps processes approximately 10,000 applications for § 404 permits a year. Up to 3,000 may be withdrawn, and approximately 500 are denied. See GAO - CORPS § 404 PROGRAM supra Introduction, note 1.

33. These components are identified in Part III of this primer.

34. The Corps regulations are found generally at 33 C.F.R. pts. 320-30; EPA's regulations are found generally at 40 C.F.R. pts. 230-33.

35. See 56 Fed. Reg. 2408 (1991); 57 Fed. Reg. 6589 (1992).

36. See 57 Fed. Reg. 6590 (1992).

37. See infra Chapter 7, Enforcement of § 404.

38. 33 U.S.C. § 1344(m), ELR STAT. FWPCA 062.

39. 33 U.S.C. § 1344(q), ELR STAT. FWPCA 062. See infra Chapter 6(I)(A), for a discussion of the § 404(q) MOA.

40. 33 U.S.C. § 1251(a)(2), ELR STAT. FWPCA 003.

41. See, e.g., 33 U.S.C. § 1344(c), ELR STAT. FWPCA 060.

42. See The Move to Amend § 404 of FWPCA: House Passes Bill Limiting Federal Authority Over Dredge-and-Fill Activities, 7 ELR 10082 (1977).

43. Water Quality Act of 1987, Pub. L. No. 100-4, 101 Stat. 50 (1982).

44. See, e.g., H.R. 1330, 102d Cong., 1st Sess. (1991) (would replace § 404 with a three-level classification system for determining the level of protection for which a wetland is eligible); H.R. 4255, 102d Cong., 2d Sess. (1992) (would enhance protections for wetlands); S. 1463, 102d Cong., 1st Sess. (Senate companion bill to H.R. 1330).

1. 33 U.S.C. § 1311(a), ELR STAT. FWPCA 028.

2. Id. at § 1362(12), ELR STAT. FWPCA 064.

3. Id. at § 1362(7), ELR STAT. FWPCA 064.

4. See 33 C.F.R. pt. 329.

5. Id. at § 329.4.

6. See Buttrey v. United States, 573 F. Supp. 283, 298, 14 ELR 20152, 20159 (E.D. La. 1983); P.F.Z. Properties v. Train, 393 F. Supp. 1370, 1380, 1382 (D.D.C. 1975).

7. See United States v. Sunset Cove, Inc., 3 ELR 20370 (D. Or. 1973), aff'd in part and remanded on other grounds, 514 F.2d 1089, 5 ELR 20407 (9th Cir. 1975); United States v. Zanger, 767 F. Supp. 1030, 22 ELR 20231 (N.D. Cal. 1991).

8. See, e.g., 42 Fed. Reg. 37122 (1977).

9. 392 F. Supp. 685, 5 ELR 20285 (D.D.C. 1975).

10. See 42 Fed. Reg. 37122, 37127 (1977).

11. 43 Op. Att'y Gen. 15 (1979) [hereinafter CIVILETTI OPINION].

12. See infra Chapter 4, Exemptions From § 404.

13. 33 U.S.C. § 1344(a) clearly gives the Army, not EPA, permit issuing authority.

14. Memorandum of Understanding, Geographical Jurisdiction of the Section 404 Program (Apr. 23, 1980), 45 Fed. Reg. 45018 (1980).

15. Memorandum of Agreement Between the Department of the Army and the Environmental Protection Agency Concerning the Determination of the Geographic Jurisdiction of the Section 404 Program and the Application of the Exceptions Under Section 404(f) of the Clean Water Act (Jan. 19, 1989) [hereinafter 1989 MOA].

16. Id. at 1.

17. Id. at 2.

18. Id. at 5.

19. Id. Most § 404 decisions by both EPA and the Corps are made by the agencies' field offices, rather than at agency headquarters. See infra Part III for a description of the organization of the Corps and EPA.

20. 33 C.F.R. § 325.9 (1992).

21. See LAW OF WETLANDS REGULATION, supra Chapter 1, note 14, at 4.3-.4.

22. See infra Chapter 2(III)(A), Artificially Created Wetlands.

23. RGL 90-06, Aug. 14, 1990. The RGL expires Dec. 31, 1993, 57 Fed. Reg. 6591 (1992).

24. RGL 90-06, P4(c); 57 Fed. Reg. 6591 (1992).

25. Id. at P4(d); 57 Fed. Reg. 6591-92 (1992).

26. Id. P7; 57 Fed. Reg. 6592 (1992).

27. See Golden Gate Audubon Soc'y, Inc. v. U.S. Army Corps of Eng'rs, 717 F. Supp. 1417, 18 ELR 21401 (N.D. Cal. 1988); National Wildlife Fed'n v. Hanson, 623 F. Supp. 1539, 16 ELR 20388 (E.D.N.C. 1985).

28. See infra Chapter 8, Judicial Review of Wetlands Actions.

29. See, e.g., Golden Gate Audubon Soc'y v. U.S. Army Corps of Eng'rs, 717 F. Supp. 1417, 18 ELR 21401 (N.D. Cal. 1988).

30. 1989 MOA, supra note 15.

31. See 40 C.F.R. § 230.80.

32. Id. at § 230.80(a)(2).

33. See infra part II.

34. Wetlands delineations also are now required in connection with a number of nationwide permits. See infra Chapter 5, Nationwide and General Permits Under § 404.

35. 33 C.F.R. § 325.1(b) (1992).

36. Supra note 9.

37. EPA's definitions are found at 40 C.F.R. §§ 230.3(s) and 232.2(q).

38. 33 C.F.R. § 328.3(a)(1) (1992).

39. Id. at § 328.3(a)(2).

40. Id. at § 328.3(a)(3).

41. Id. at § 328.3(a)(4).

42. Id. at § 328.3(a)(5).

43. Id. at § 328.3(a)(6).

44. Id. at § 328.3(a)(7).

45. See Jerry Jackson, The Constitutional Test for Wetlands Jurisdiction: Agencies in a Muddle, NAT'L WETLANDS NEWSL. (ENVTL. L. INST.), Sept./Oct. 1987, at 8-9.

46. 33 C.F.R. § 328.3(a)(2) (1992).

47. Id. at § 328.3(a)(7).

48. Id. at § 328.3(a)(3).

49. Id. at § 328.3(c).

50. Id. See also Hough v. Marsh, 557 F. Supp. 74, 80 n.4, 13 ELR 20610, 20613 n. 4 (D. Mass. 1982).

51. 474 U.S. 121, 16 ELR 20086 (1985).

52. Id. at 133, 16 ELR at 20089.

53. Id. at 134, 16 ELR at 20089.

54. Id. at 131 n.8, 16 ELR at 20088.

55. 33 C.F.R. § 328.3(b) (1992). See also 40 C.F.R. §§ 230.3(t), 232.2(r).

56. The Supreme Court in Riverside Bayview Homes eloquently summarized the dilemma involved in identifying wetlands:

On a purely linguistic level, it may appear unreasonable to classify "lands," wet or otherwise, as "waters." Such a simplistic response, however, does justice neither to the problem faced by the Corps in defining the scope of its authority under § 404(a) nor to the realities of the problem of water pollution that the Clean Water Act was intended to combat. In determining the limits of its power to regulate discharges under the Act, the Corps must necessarily choose some point at which water ends and land begins. Our common experience tells us that this is often no easy task: the transition from water to solid ground is not necessarily or even typically an abrupt one. Rather, between open waters and dry land may lie shallows, marshes, mudflats, swamps, bogs — in short, a huge array of areas that are not wholly aquatic but nevertheless fall far short of being dry land. Where on this continuum to find the limit of "waters" is far from obvious.

474 U.S. at 132, 16 ELR at 20088.

57. See Hanson v. United States, 710 F. Supp. 1105, 19 ELR 21074 (E.D. Tex. 1989) (tidal inundation); P.F.Z. Properties v. Train, 393 F. Supp. 1370 (D.D.C. 1975) (mangrove wetlands); United States v. Holland, 373 F. Supp. 665, 674, 4 ELR 20710, 20714 (M.D. Fla. 1974) (mangrove wetlands); American Dredging Co. v. Dutchyshyn, 480 F. Supp. 957 (E.D. Pa. 1979), aff'd, 614 F.2d 769 (3d Cir. 1979) (freshwater wetlands); Bailey v. United States, 647 F. Supp. 44, 17 ELR 20501 (D. Idaho 1986) (vegetation requiring saturated soil); Avoyelles Sportsmen's League v. Marsh, 715 F.2d 897, 907, 13 ELR 20942, 20946 (5th Cir. 1983) (facultative as well as obligate hydrophytes acceptable wetlands vegetation).

58. See U.S. ARMY CORPS OF ENG'RS, U.S. DEP'T OF DEFENSE, U.S. TECH. REP. Y-87-1, CORPS OF ENGINEERS WETLANDS DELINEATION MANUAL (1987) [hereinafter 1987 CORPS MANUAL].

59. See, e.g., L.M. COWARDIN ET AL., U.S. FISH AND WILDLIFE SERVICE, U.S. DEP'T OF THE INTERIOR, PUB. NO. FWS/OBS-79/31, CLASSIFICATION OF WETLANDS AND DEEPWATER HABITATS OF THE UNITED STATES, (1979); W.S. SIPPLE, OFFICE OF WETLANDS PROTECTION, U.S. ENVIRONMENTAL PROTECTION AGENCY, EPA WETLAND IDENTIFICATION AND DELINEATION MANUAL, (two volumes) (1987); and SOIL CONSERVATION SERVICE, U.S. DEP'T OF AGRICULTURE, NATIONAL FOOD SECURITY ACT MANUAL (1988).

60. FEDERAL INTERAGENCY COMMITTEE FOR WETLAND DELINEATION, (U.S. ARMY CORPS OF ENGINEERS, U.S. ENVIRONMENTAL PROTECTION AGENCY, U.S. FISH AND WILDLIFE SERVICE, AND U.S.D.A.'S SOIL CONSERVATION SERVICE), COOPERATIVE TECH. PUB., FEDERAL MANUAL FOR IDENTIFYING AND DELINEATING JURISDICTIONAL WETLANDS, (1989) [hereinafter 1989 JOINT MANUAL].

61. See Point-Counterpoint: What Should Our National Wetlands Policy Be?, ENVTL. FORUM (ENVTL. L. INST.), Jan./Feb. 1989, at 20.

62. The opponents of the 1989 JOINT MANUAL included the oil and gas industry, agricultural businesses, and real estate developers; they were joined by some legislators from Alaska and certain coastal states, who feared that an overbroad definition of wetlands would unduly restrict economic development within their states. Various environmental groups supported the 1989 JOINT MANUAL. Thesupporters maintained that if the manual was properly followed, there would be no expansion of wetlands jurisdiction. A great deal of the political debate engaged hyperbole over the impacts of the 1989 JOINT MANUAL, obscuring the fact that it primarily codified and made uniform the preexisting practices of the various agencies.

63. See, e.g., 55 Fed. Reg. 14997, 33349 (1990) (notices of meetings).

64. See 56 Fed. Reg. 40446 (1991).

65. Id. See also generally NAT'L WETLANDS NEWSL. (ENVTL. L. INST.), Sept./Oct. 1991.

66. For a comparison between the wetlands criteria of the 1987 CORPS MANUAL, the 1989 JOINT MANUAL, and the 1991 Federal Register proposal, see NAT'L WETLANDS NEWSL. (ENVTL. L. INST.), Sept./Oct. 1991, at 5.

67. See 56 Fed. Reg. 40446, 40447 (1991).

68. This prohibition, known as the Johnson Amendment, was included in Title I of the Energy and Water Development Appropriations Act of 1992, Pub. L. No. 102-104, 105 Stat. 510 (1991). The amendment allows landowners who had delineations done under the 1989 JOINT MANUAL in permit or enforcement cases to request a re-delineation under the 1987 CORPS MANUAL. The prohibition was continued in 1992. See the Energy and Water Development Appropriations Act of 1993, Pub. L. No. 102-377, 106 Stat. 1315 (1992).

69. Departments of Veterans Affairs and Housing and Urban Development and Independent Agencies Appropriations Act of 1993, Pub. L. No. 102-389, 106 Stat. 1571 (1992).

70. 58 Fed. Reg. 4995 (1993).

71. The NTCHS Hydric Soils list may be obtained from the Soil Conservation Service, P.O. Box 2890, Washington, D.C. 20013.

72. This is a biologically based approach, which focuses on sufficient wetness in the root zone of plants needed to engender wetlands vegetation. Water in the root zone may not always be measured by saturation on the surface.

73. 56 Fed. Reg. 40446, 40452 (1991).

74. This policy tension highlights a key deficiency in wetlands regulation under the CWA. Congress has not clearly expressed an intent in the CWA that all property exhibiting biological wetlands characteristics must be subject to the CWA's regulation. Thus, the Bush administration felt there was room for development of regulatory policy that left some biological wetlands outside of the CWA's jurisdiction.

75. 1989 JOINT MANUAL, supra note 60, at 5.

76. The FWS prepares A National List of Plant Species That Occur in Wetlands, and it may be obtained by writing: U.S. Fish and Wildlife Service, National Wetland Inventory, Monroe Bldg., Ste. 101, 9720 Executive Ctr. Dr., St. Petersburg, FL 33702.

77. Indices to evaluate wetland characteristics derive, in part, from the approach used by the SCS to administer wetlands under the provisions of the Food Security Act of 1985. See 7 C.F.R. § 12.31(b)(3) and infra Part II.

78. See Merlino v. United States, 21 ELR 21322 (W.D. Wash. 1991); Mulberry Hills Dev. Corp. v. United States, 21 ELR 20123 (D. Md. 1990); United States v. Hobbs, 21 ELR 20830 (E.D. Va. 1990).

79. See supra note 68.

80. 33 C.F.R. § 328.3(b) (1992).

81. RGL 86-9, Clarification of "Normal Circumstances" in the Wetland Definition (33 C.F.R. § 323.2(c)), Aug. 27, 1986 (expired Dec. 31, 1988).

82. 717 F. Supp. 1417, 1421, 18 ELR 21401, 21403 (N.D. Cal. 1988).

83. 896 F.2d 354, 358, 20 ELR 20477, 20479 (9th Cir. 1990).

84. This was forcefully confirmed in Leslie Salt Co. v. United States, 896 F.2d 354, 20 ELR 20477 (9th Cir. 1990), cert. denied, 111 S. Ct. 1089 (1991). See also Swanson v. United States, 789 F.2d 1368, 16 ELR 20799 (9th Cir. 1986).

85. United States v. DeFelice, 641 F.2d 1169, 1175, 11 ELR 20505, 20507-08 (5th Cir. 1981), cert. denied, 454 U.S. 940 (1981).

86. Track 12, Inc. v. District Eng'r, 618 F. Supp. 448, 449, 16 ELR 20163 (D. Minn. 1985).

87. United States v. Bradshaw, 541 F. Supp. 880, 883, 12 ELR 20629, 20630 (D. Md. 1981).

88. Weiszmann v. District Eng'r, 526 F.2d 1302, 6 ELR 20219 (5th Cir. 1976).

89. See United States v. City of Fort Pierre, 747 F.2d 464, 15 ELR 20177 (8th Cir. 1984) (Corps-created waters not within the CWA's authority).

90. United States v. Southern Inv. Co., 876 F.2d 606, 612, 19 ELR 21276, 21279 (8th Cir. 1989) (reading City of Fort Pierre narrowly).

91. See supra Chapter 9, the Takings Issue.

92. Leslie Salt Co., supra note 83, at 360, 20 ELR at 20480 (9th Cir. 1990).

93. See Quivira Mining Co. v. EPA, 765 F.2d 126, 15 ELR 20530 (10th Cir. 1985), cert. denied, 474 U.S. 1055, (1986); United States v. Phelps Dodge Corp., 391 F. Supp. 1181, 1187, 5 ELR 20308, 20311 (D. Ariz. 1975).

94. 33 C.F.R. § 328.3(a)(3) (1992); 40 C.F.R. § 232.2(q)(3) (1992).

95. See 42 Fed. Reg. 37124 (1977). See also United States v. Riverside Bayview Homes, 474 U.S. 121, 16 ELR 20086 (1985); Leslie Salt Co. v. United States, 896 F.2d 354, 360, 20 ELR 20477, 20479 (9th Cir. 1990).

96. United States v. Byrd, 609 F.2d 1204, 1209, 9 ELR 20757, 20759 (7th Cir. 1979).

97. Memorandum from Francis S. Blake, General Counsel, U.S. Environmental Protection Agency, to Richard E. Sanderson, Acting Ass't Administrator, Office of External Affairs, U.S. Environmental Protection Agency (Clean Water Act jurisdiction over isolated waters) (Sept. 12, 1985).

98. National Wildlife Fed'n v. Laubscher, 17 ELR 20891 (S.D. Tex. 1987) (magistrate's opinion), 662 F. Supp. 548, 17 ELR 20892 (S.D. Tex. 1987) (court opinion).

99. 51 Fed. Reg. 41217 (1986).

100. Memorandum from Brigadier General Patrick J. Kelly, Deputy Director of Civil Works, U.S. Army Corps of Engineers, Corps Field Offices (EPA memorandum on Clean Water Act jurisdiction over isolated waters) (Nov. 8, 1985); Memorandum from Brigadier General Patrick J. Kelly to Commander, Southwestern Division, U.S. Corps of Engineers (Commerce Clause jurisdiction in isolated waters) (Feb. 11, 1986).

101. Laubscher, supra note 98, at 549, 17 ELR at 20891.

102. 715 F. Supp. 726, 19 ELR 20672 (E.D. Va. 1988), aff'd without opinion, 885 F.2d 866, 20 ELR 20008 (4th Cir. 1989).

103. Id. at 729, 19 ELR at 20673.

104. Id. at 728-29, 19 ELR at 20673.

105. 896 F.2d 354, 20 ELR 20477 (9th Cir. 1990),

106. Id. at 360, 20 ELR at 20481.

107. See, e.g., Utah v. Marsh, 740 F.2d 799, 804, 14 ELR 20683, 20685 (10th Cir. 1984); Palila v. Hawaii Dep't of Land & Natural Resources, 471 F. Supp. 985, 991-95, 9 ELR 20426, 20428-30 (D. Haw. 1979), aff'd, 639 F.2d 495, 11 ELR 20446 (9th Cir. 1981).

108. No. A3-88-175 (D.N.D. Apr. 6, 1992).

109. See infra Chapter 4, Exemptions From § 404.

110. Sargent County, supra note 108, at slip op. 11-13.

111. Id. at 12.

112. 961 F.2d 1310, 22 ELR 21148 (7th Cir. 1992).

113. Id.

114. Id. at 1314, 22 ELR 21150.

115. The decision identifies the EPA's definition at 40 C.F.R. § 230.3(s)(3). This definition is identical to the Corps' definition at 33 C.F.R. § 328.3(a)(3) and another EPA regulation at 40 C.F.R. § 232.2(q).

116. Hoffman Homes, supra note 112, at 1316, 22 ELR at 21151.

117. On June 3, 1992, the government filed a Petition for Rehearing and Suggestion of En Banc Reconsideration.

118. Hoffman Homes, Inc. v. EPA, 975 F.2d 1554, 22 ELR 21547 (7th Cir. 1992).

119. Id.

120. The federal government generally maintains that adverse decisions of lower courts govern only in the judicial district or circuit where they were decided, here the Seventh Circuit. The government can also elect to accept a lower court ruling and applythat ruling to itself nationally.

121. 57 Fed. Reg. 26894 (1992).

122. See infra Part II, for a more full description of these agricultural conservation programs.

123. RGL 90-7 is described at 57 Fed. Reg. 26894, 26897 (1992).

124. See 33 C.F.R. § 328.3(b).

125. Id.

1. 33 U.S.C. § 1311, ELR STAT. FWPCA 028.

2. Id. at § 1362(6), ELR STAT. FWPCA 064.

3. Id. at § 1362(12), ELR STAT. FWPCA 064.

4. See infra Chapter 4, Exemptions From § 404.

5. 33 C.F.R. § 323.3(a) (1992).

6. Id. at § 323.2(c).

7. Id. at § 323.2(d).

8. 40 C.F.R. § 232.2(e), (g) (1992).

9. 33 C.F.R. § 323.2(e) (1992).

10. 40 C.F.R. § 232.2(i) (1992).

11. See infra Chapter 7, Enforcement of § 404.

12. 40 C.F.R. § 232.2(i) (1992).

13. 33 C.F.R. § 323.2(f) (1992).

14. Id.

15. 40 C.F.R. § 232.2(f) (1992).

16. See, e.g., In re Alameda County Assessor's Parcel Nos. 537-801-2-4 and 537-850-9, 672 F. Supp. 1278, 1284-85 (N.D. Cal. 1987), and cases cited therein.

17. 33 C.F.R. § 323.2(d), (f) (1992).

18. See infra Chapter 4, Exemptions From § 404.

19. 33 C.F.R. § 323.2(d) (1992); but see proposal to amend regulations, 57 Fed. Reg. 26894 (1992).

20. 33 C.F.R. § 323.2(d).

21. See 51 Fed. Reg. 41210 (1986) (preamble to final regulations). But see infra section II(F) (proposal to regulate incidental discharges).

22. 33 U.S.C. § 1362(14), ELR STAT. FWPCA 064.

23. Id.

24. See, e.g., United States v. Larkins, 657 F. Supp. 76, 17 ELR 20783 (W.D. Ky. 1987), aff'd, 852 F.2d 189, 18 ELR 21416 (6th Cir. 1988), cert. denied, 489 U.S. 1016 (1989) (earth moving equipment used to build dike and levee); Avoyelles Sportsmen's League v. Marsh, 715 F.2d 897, 922, 13 ELR 20942, 20954 (5th Cir. 1983) (bulldozers, landclearing equipment); United States v. Holland, 373 F. Supp. 665, 668, 4 ELR 20710, 20711 (M.D. Fla. 1974) (bulldozers).

25. 715 F.2d 897, 13 ELR 20942 (5th Cir. 1983).

26. Windrows are generally rows of leaves or other vegetation heaped up by the wind, or arranged in a similar fashion by man or machines.

27. The disc is a cultivation tool, generally attached to a tractor, used to turn over and mix layers of soil.

28. See infra Chapter 7(V), Citizen Enforcement.

29. Avoyelles, supra note 25, at 923, 13 ELR at 20954-55.

30. Id. at 924, 13 ELR at 20955.

31. RGL 90-05 was issued March 13, 1990, and expired December 31, 1992; See 57 Fed. Reg. 6591 (1992).

32. RGL 90-05.

33. 711 F.2d 634, 13 ELR 20851 (5th Cir. 1983).

34. Id. at 647, 13 ELR at 20856.

35. Id.

36. Save Our Community v. EPA, 971 F.2d 1155, 22 ELR 21532 (5th Cir. 1992).

37. 772 F.2d 1501, 15 ELR 21091 (11th Cir. 1985), vacated on other grounds, 481 U.S. 1034 (1987), on remand, 848 F.2d 1133, 18 ELR 21080 (11th Cir. 1988) and 863 F.2d 802 (11th Cir. 1989). After 1988, the case addressed the right to a jury trial on the issue of liability.

38. 772 F.2d at 1506, 15 ELR at 21093.

39. 767 F. Supp. 200, 21 ELR 21323 (D. Mont. 1990).

40. Id. at 202, 21 ELR at 21324.

41. 767 F. Supp. 1030, 22 ELR 20231 (N.D. Cal. 1991).

42. Id. at 1034, 22 ELR at 20233.

43. See, e.g., National Wildlife Fed'n v. Consumers Power Co., 862 F.2d 580, 19 ELR 20235 (6th Cir. 1988); National Wildlife Fed'n v. Gorsuch, 693 F.2d 156, 13 ELR 20015 (D.C. Cir. 1982); Ashcroft v. Dep't of the Army, 672 F.2d 1297 (8th Cir. 1982).

44. 767 F. Supp. 200, 21 ELR 21323 (D. Mont. 1990).

45. Id. at 205 n.5, 21 ELR at 21325 n.5.

46. RGL 90-08 was issued December 14, 1990, and is set to expire December 31, 1993; See 57 Fed. Reg. 6593 (1992).

47. 57 Fed. Reg. 6593 (1992).

48. 57 Fed. Reg. 26894 (1992).

49. 57 Fed. Reg. 6593 (1992).

50. DEPARTMENT OF THE ARMY, U.S. DEP'T OF DEFENSE, AND ENVIRONMENTAL PROTECTION AGENCY, WATER POLLUTION CONTROL: MEMORANDUM OF AGREEMENT ON SOLID WASTE (Feb. 28, 1986) [hereinafter 1986 MOA]. See 51 Fed. Reg. 8871 (1986).

51. 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA 001-050.

52. 51 Fed. Reg. 8872 (1986).

53. 33 C.F.R. § 323.2(e) (1992).

54. 51 Fed. Reg. 8872 (1986).

55. Id.

56. See, e.g., Rybachek v. EPA, 904 F.2d 1276, 20 ELR 20973 (9th Cir. 1990) (EPA regulation of placer mining in streams).

57. 51 Fed. Reg. 8873 (1986).

58. 728 F. Supp. 1276, 20 ELR 20642 (S.D. W. Va. 1989).

59. Id. at 1284-85, 20 ELR at 20645-46.

60. Id. at 1287, 20 ELR at 20647.

61. 543 F.2d 1198, 1208, 7 ELR 20066, 20070 (8th Cir. 1976), cert. denied, 430 U.S. 977 (1977).

62. 742 F. Supp. 1025, 1030-31, 21 ELR 20294, 20296-97 (N.D. Ind. 1990).

63. See infra Chapter 4 (addressing § 404(f) exemptions related to agricultural drainage and draining uplands).

64. 971 F.2d 1155 (5th Cir. 1992).

65. 741 F. Supp. 605, 21 ELR 20046 (N.D. Tex. 1990).

66. 971 F.2d at 1163.

67. 715 F.2d 897, 13 ELR 20942 (5th Cir. 1983).

68. 711 F.2d 634, 13 ELR 20851 (5th Cir. 1983).

69. 971 F.2d at 1164.

70. 742 F.2d 901, 15 ELR 20030 (5th Cir. 1984).

71. Id. at 910, 15 ELR at 20034.

72. See supra Chapter 2(II)(E) (discussion of the CWA's jurisdiction over wetlands "under normal circumstances").

73. 971 F.2d at 1167.

74. Memorandum from Lance Wood, Ass't Chief Counsel, U.S. Corps of Engineers, to all division and district counsel (Apr. 10, 1990) (evading § 404 jurisdiction by pumping water from wetlands).

75. 57 Fed. Reg. 26894 (1992).

76. This proposal was the result of a settlement in a 1990 lawsuit, North Carolina Wildlife Fed'n v. Tulloch, No. C90 713 (E.D.N.C. 1992), in which environmentalists challenged the Corps' position that the CWA did not reach practices such as drainage of wetlands. See 57 Fed. Reg. 26894 (1992).

77. 57 Fed. Reg. 26895 (1992). The preamble provides:

We believe that it is appropriate to look at the environmental effect of activities that involve incidental soil movement for several reasons. First, the Federal government has broad authority under section 404(a) to regulate any discharge of dredged or fill material into any water of the United States. This authority has been upheld by many decisions of the Federal courts. Second, the Act contains no explicit exemption for de minimis discharges: any inference of one would need to be consistent with the environmental purposes of the Act. Third, the proposed language also parallels the approach and implements the policy of section 404(f), which generally exempts minor discharges from farming, ranching, and silvicultural activities, but "recaptures" them when the activity alters waters of the United States.

78. See Missouri ex rel. Ashcroft v. Department of the Army, Corps of Eng'rs, 526 F. Supp. 660, 668, 12 ELR 20359, 20361 (W.D. Mo. 1980), aff'd, 672 F.2d 1297, 1304, 12 ELR 20368, 20370 (8th Cir. 1982).

79. 620 F.2d 41, 10 ELR 20552 (5th Cir. 1980).

80. Id. at 45, 10 ELR at 20553-54.

81. See also Consolidated Coal Co. v. Costle, 604 F.2d 239, 9 ELR 20511 (4th Cir. 1979), cert. granted sub nom. EPA v. National Crushed Stone Ass'n, 449 U.S. 64, 10 ELR 20924 (1980); United States v. Earth Sciences, Inc., 599 F.2d 368, 9 ELR 20542 (10th Cir. 1979).

82. No. 89-54-N (E.D. Va. Aug. 3, 1989) [unreported decision].

1. Nationwide and general permits are authorizations for filling. See infra Chapter 5.

2. 33 U.S.C. § 1344(f), ELR STAT. FWPCA 060.

3. Id. at § 1344(f)(1)(A), ELR STAT. FWPCA 061.

4. Id. at § 1344(f)(1)(B), ELR STAT. FWPCA 061.

5. Id. at § 1344(f)(1)(C), ELR STAT. FWPCA 061.

6. Id. at § 1344(f)(1)(D), ELR STAT. FWPCA 061.

7. Id. at § 1344(f)(1)(E), ELR STAT. FWPCA 061.

8. Id. at § 1344(f)(1)(F), ELR STAT. FWPCA 061. See infra Chapter 10 (approval of state programs under § 404).

9. Section 404(f)(2) provides that a permit will be required for any filling:

incidental to any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced.

10. See, e.g., United States v. Akers, 785 F.2d 814, 819, 16 ELR 20538, 20541 (9th Cir. 1986).

11. 3 A LEGISLATIVE HISTORY OF THE CLEAN WATER ACT OF 1977, 95th Cong., 2d Sess., Ser. No. 95-14 (1978), at 474.

12. 752 F.2d 1235, 1240-41, 15 ELR 20083, 20085 (7th Cir. 1985).

13. Id.

14. 33 U.S.C. § 1344(r), ELR STAT. FWPCA 062.

15. See 33 C.F.R. § 323.4(d) (1992); 33 C.F.R. pts. 335 (the Army Corps' civil works projects), and 336 (factors to be considered in evaluating Corps' projects).

16. 33 C.F.R. § 323.4 (1992). The Corps' regulations contain examples and illustrations for each of the categories of exempt activities identified in the statute. EPA's regulations describe the same exemptions, although they are organized in a slightly different manner and some differences exist between the two sets of regulations. See 40 C.F.R. § 232.3 (1992). Under the CIVILETTI OPINION, EPA, not the Corps, is the final authority on the scope of the § 404(f) exemptions. See supra Chapter 2.

17. 33 C.F.R. § 323.4(a)(1)(ii) (1992).

18. Id. at § 323.4(a)(1)(iii)(C)(1)(ii). The Corps, in conjunction with EPA, issued an RGL explaining this exemption further. See RGL No. 92-2, Water Dependency and Cranberry Production, July 13, 1992, 57 Fed. Reg. 32523 (1992).

19. 33 C.F.R. § 323.4(a)(1)(iii)(C)(2) (1992).

20. Id. at § 323.4(a)(1)(iii)(C)(1)(iv).

21. Id. at § 323.4(a)(1)(iii)(D); see also United States v. Huebner, 752 F.2d 1235, 1243, 15 ELR 20083, 20086-87 (7th Cir. 1985) (plowing does not include moving mounds of dirt).

22. See, e.g., United States v. Huebner, 752 F.2d 1235, 1243, 15 ELR 20083, 20086-87 (7th Cir. 1985) (BMPs required for farm road maintenance.)

23. See infra chapter 7, Enforcement of § 404.

24. 33 C.F.R. § 323.4(c) (1992).

25. Id.

26. See, e.g., RGL 86-1 (plowing); RGL 86-3 (farm and forest roads); RGL 87-7 (drainage ditch maintenance); RGL 87-9 (farm or stock ponds). These RGLs are reproduced in LAW OF WETLANDS REGULATION, supra Chapter 1, note 14, at app. 9 (Release No. 3, May 1992).

27. U.S. EPA and U.S. Dep't of the Army, Memorandum for the Field, Clean Water Act Section 404 Regulatory Program and Agricultural Activities (May 3, 1990) [unpublished].

28. Id. at 1, 6.

29. Id. at 2-3.

30. Id. at 3.

31. Id. at 3-4.

32. Id. at 4-5.

33. See infra Chapter 5, Nationwide and General Permits Under § 404.

34. But see 57 Fed. Reg. 26894 (1992) (Corps' proposal to exempt prior converted cropland from the CWA's jurisdiction).

35. See, e.g., Hobbs v. United States, 947 F.2d 941, 22 ELR 20331 (4th Cir. 1991) (conversion of wetland to hayfield); United States v. Akers, 785 F.2d 814, 819, 16 ELR 20538, 20541 (9th Cir. 1986), cert. denied, 479 U.S. 828 (1986) (conversion to farmland); United States v. Huebner, 752 F.2d 1235, 1241, 15 ELR 20083, 20085 (7th Cir. 1985), cert. denied, 474 U.S. 817 (1985) (conversion to farmland).

36. See e.g., United States v. Cumberland Farms of Connecticut, Inc., 647 F. Supp. 1166, 17 ELR 20301 (D. Mass. 1986), aff'd, 826 F.2d 1151, 17 ELR 21270 (1st Cir. 1987); United States v. Huebner, 752 F.2d 1235, 1243, 15 ELR 20083, 20086-87 (7th Cir. 1985), cert. denied, 474 U.S. 817 (1985). See also RGL 92-2, Water Dependency and Cranberry Production, July 13, 1992, 57 Fed. Reg. 32523 (1992).

37. Compare United States v. Akers, 785 F.2d 814, 820, 16 ELR 20538, 20541-42 (9th Cir. 1986) (court would allow a change in wetland crop) with 33 C.F.R. § 323.4(a)(1)(iii)(C)(1)(iii) (1992) (Corps would allow only normal wetland crop rotation) and with 40 C.F.R. § 232.3(c)(1)(ii)(A) (1992) (EPA would allow normal crop rotation).

38. See, e.g., United States v. Larkins, 852 F.2d 189, 18 ELR 21416 (6th Cir. 1988); Bayou Marcus Livestock and Agric. Co. v. EPA, 20 ELR 20445 (N.D. Fla. 1989).

39. Conant v. United States, 786 F.2d 1008, 1010, 16 ELR 20453, 20454 (11th Cir. 1986).

40. United States v. Zanger, 767 F. Supp. 1030, 1035, 22 ELR 20231, 20233 (N.D. Cal. 1991).

41. See supra Chapter 3(II)(F) (addressing whether draining wetlands is a CWA-prohibited discharge).

42. 40 C.F.R. § 232.3(d)(3)(ii)(1992); 33 C.F.R. § 323.4(a)(1)(C)(2) (1992).

43. 785 F.2d 814, 820, 16 ELR 20538, 20541-42 (9th Cir. 1986).

44. No A3-88-175 (D.N.D. Apr. 6, 1992) [unpublished].

45. No. 3-89-0616 (D. Minn.) Order, Mar. 15, 1990 (Stearns I); Order Oct. 2, 1990 (Stearns II).

46. See Stearns I supra note 45, at 19.

47. See also United States v. Huebner, 752 F.2d 1235, 1242, 15 ELR 20083, 20086 (7th Cir. 1985) (excavation of new ditch is not exempt maintenance).

48. 767 F. Supp. 1030, 22 ELR 20231 (N.D. Cal. 1991).

49. 785 F.2d at 822, 16 ELR at 20542-43 (9th Cir. 1986).

50. Id.

51. Id. at 823, 16 ELR at 20543.

52. Stearns I, supra note 45, at 7-11, 14, and Stearns II, supra note 45, at 10.

53. 785 F.2d at 822, 16 ELR at 20542-43 (9th Cir. 1986).

54. Id.

55. See infra Part II.

1. 33 U.S.C. § 1344(e), ELR STAT. FWPCA 060-61.

2. Id. at § 1344(e)(1), ELR STAT. FWPCA 060-61.

3. 33 C.F.R. § 325.2(e)(2) (1992).

4. 33 U.S.C. § 1344(e)(2), ELR STAT. FWPCA 061.

5. 56 Fed. Reg. 59110 (1991).

6. 33 U.S.C. § 1344(e)(1), ELR STAT. FWPCA 060-61.

7. The Corps issued general permit regulations prior to the 1977 amendments, 42 Fed. Reg. 37121, 37145 (1977) and the concept was later codified. See S. REP. No. 370, 95th Cong., 1st Sess. 80 (1977), reprinted in 1977 U.S.C.C.A.N. 4326, 4405.

8. 47 Fed. Reg. 31794 (1982) (final); 45 Fed. Reg. 62732 (proposed).

9. 51 Fed. Reg. 41206 (1986).

10. 56 Fed. Reg. 59110, 59117 (1991). In fact, the regulations provide for 40 nationwide permits, but four categories are reserved for any new categories that might be proposed in the future.

11. See infra Chapter 6(II)(C) (discussing the public interest review process followed for individual permit applications).

12. 33 C.F.R. § 330.4(e) (1992).

13. Id. at § 330.4(e)(2) (1992).

14. Id.

15. See Riverside Irrigation Dist. v. Andrews, 758 F.2d 508, 15 ELR 20333 (10th Cir. 1985).

16. 33 C.F.R. § 330.4(f), (g) (1992).

17. Id. at pt. 330, app. A, §§ C.7, C.8 (1992).

18. Id. at pt. 330, app. A, §§ C.1, C.3, C.4 (1992).

19. Id. at pt. 330, app. A, § C.13(e) (1992).

20. Id. at pt. 330, app. A, § C(f) (1992).

21. Id. at pt. 330, app. A, § C.6) (1992).

22. 33 U.S.C. § 1341, ELR STAT. FWPCA 057.

23. 33 C.F.R. § 330.4(c) (1992).

24. See United States v. Marathon Dev. Co., 867 F.2d 96, 19 ELR 20683 (1st Cir. 1989) (relationship between § 401 certification and nationwide permit).

25. See Pennsylvania Dep't of Environmental Resources v. U.S. Army Corps of Eng'rs, No. CV-92-374 (M.D. Pa.) (settled Aug. 28, 1992). The case was settled without resolution of the effect of Pennsylvania's generic denial of consistency. Other states have denied consistency to certain nationwide permits, particularly Nationwide 26, so this issue may reemerge in new litigation.

26. RGL 92-4, Section 401 Water Quality Certification and Coastal Zone Management Act Conditions for Nationwide Permits, 57 Fed. Reg. 53724 (1992).

27. Id.

28. 33 C.F.R. pt. 330, app. A (1992).

29. Moreover, the markers and water recreational events will generally require other approvals from the U.S. Coast Guard.

30. A proposed rule by the Corps and EPA addressing minor discharges that have the effect of destroying wetlands, (57 Fed. Reg. 26894 (1992)), does not impact nationwides 18 or 19 for minor discharges or minor dredging. The proposed rulemaking changes the definition of discharge to include incidental, minor discharges associated with wetland drainage activities. The definitions merely mean that a permit is required. The permit requirement can be satisfied with a nationwide permit, if the conditions are met, oran individual permit, if the activities do not accord with the nationwide standards.

31. 33 U.S.C. § 1321, ELR STAT. FWPCA 042.

32. Regulations of the Council on Environmental Quality authorize federal agencies to determine that certain activities they conduct do not present a significant impact on the environment, and can be "categorically excluded" from the obligation to prepare an EIS. See 40 C.F.R. § 1507.3(b)(2).

33. See infra Chapter 10 (describing the state approval program under § 404).

34. 33 C.F.R. § 330.2(d) (1992).

35. Id. at § 330.2(e) (1992). See also supra Chapter 2(III)(D) (addressing jurisdiction over isolated waters).

36. The history of Nationwide 26 is presented in LAW OF WETLANDS REGULATION, supra Chapter 1, note 14, at §§ 5-14 to 5-16.

37. National Wildlife Fed'n v. Marsh, 14 ELR 20262 (D.D.C. 1984).

38. 56 Fed. Reg. 59125-26 (1991).

39. See, e.g., Shelton v. Marsh, 902 F.2d 1201, 20 ELR 20886 (6th Cir. 1990).

40. See, e.g., Avella v. U.S. Army Corps of Eng'rs, 20 ELR 20920 (S.D. Fla. 1990), aff'd, 916 F.2d 721

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23 ELR 10185 | Environmental Law Reporter | copyright © 1993 | All rights reserved

, 21 ELR 20542 (opinion) (11th Cir. 1990); Lotz Realty Co. v. United States, 757 F. Supp. 692 (E.D. Va. 1990).

41. RGL No. 88-6, Nationwide Permit Program, reprinted in LAW OF WETLANDS REGULATION supra Chapter 1, note 14, at app. 9-20.

42. RGL No. 88-6, at para 3(h).

43. 56 Fed. Reg. 59114 (1991).

44. Id.

45. See infra Part II (describing wetlands easements and conservation plans subject to the authority of these other agencies).

46. 56 Fed. Reg. 59128-29 (1991).

47. See, e.g., United States v. Huebner, 752 F.2d 1235, 15 ELR 20083 (7th Cir.) cert. denied, 474 U.S. 817 (1985); United States v. Cumberland Farms, Inc., 826 F.2d 1151, 17 ELR 21270 (1st Cir. 1987), cert. denied, 484 U.S. 1061 (1988).

48. RGL No. 92-2, Water Dependency and Cranberry Production, July 13, 1992, 57 Fed. Reg. 32523 (1992).

49. See infra Part II.

50. See infra Part II (describing agricultural programs).

51. See 56 Fed. Reg. 59113-14 (1991) (codified at 33 C.F.R. § 330.6(c) (1992)); see also RGL No. 88-6, Nationwide Permit Program, reprinted in LAW OF WETLANDS REGULATION supra Chapter 1, note 14, at app. 9-23.

52. 33 C.F.R. § 323.2(h) (1992).

53. Id. at §§ 325.2(e)(2), 325.3(b).

54. Id. at § 325.5(c).

55. See infra Chapter 10 (discussing state program authorization).