Corps Issues Interim Rules for Discharges of Dredged and Fill Materials

On July 25, 1975,¹ the Army Corps of Engineers promulgated interim final regulations governing the granting of permits for activities in UnitedStates inland and ocean waters, including, inter alia, the discharge of dredged and fill materials. The Corps' action came in response to a court order² invalidating the agency's previous rules which restricted its regulatory jurisdiction over the latter category of activities to "navigable waters" as traditionally defined. The order directed the Corps to shoulder its full regulatory responsibility under §§ 404 and 502(7)³ of the Federal Water Pollution Control Act Amendments of 1972 which expanded such jurisdiction to all "waters of the United States."

The interim final rules differ significantly from any of the four alternative regulatory schemes proposed by the agency in May of this year,⁴ which result is at least partially attributable to the public furor generated by the Corps' misleading characterization of the proposals and the consequent deluge of public comments. EPA also worked closely with the Corps in developing the interim rules, and had a hand in shaping their ultimate form. The Corps' earlier recalcitrance toward full implementation of § 404 was apparently turned around by the intercession of Assistant Secretary of the Army Victor V. Veysey, who stated in testimony before the House Public Works Subcommittee on Water Resources on July 15 that "[w]e must dispel fallacies that the Corps is proposing to regulate a farmer plowing his field or that the Corps is indifferent to destruction of our productive wetlands."

While the interim rules are lengthy and complex, they represent a distinct improvement over the Corps' May 6 proposals and generally establish a workable regulatory program for the protection of watercourses and wetlands from discharges of dredged and fill materials.

Under the new regulations, the Corps' jurisdiction pursuant to § 404 is defined as extending to all coastal tidal waters shoreward to the mean high water mark (mean higher high water mark on the Pacific Coast), and also to all contiguous or adjacent wetlands, swamps and mudflats periodically inundated by saline or fresh water and characterized by the presence of salt water vegetation or prevalence of vegetation that requires saturated soil conditions. In inland areas, the Corps' jurisdiction under § 404 will now extend to all rivers, lakes of five acres or more in surface area, and streams that are navigable in fact or have been used in interstate commerce, to all tributaries of these waters, and to all interstate waters. Stock watering ponds and settling basins not created by impounding navigable waters are not included in the definition of lakes.

In addition, intrastate waters that are used by interstate travelers for recreational purposes, or to remove fish for sale in interstate commerce, or for industrial purposes or the production of agricultural commodities sold or transported in interstate commerce will be subjectto the § 404 permit program. Corps jurisdiction over these inland water bodies extends landward to their ordinary high water mark and up to their headwaters (the point at which stream flow is less than five cubic feet per second), as well as to all contiguous or adjacent wetlands periodically inundated and characterized by the prevalence of aquatic vegetation. Manmade canals which are used by recreational or other craft are also subject to regulation under § 404, while drainage and irrigation ditches are not. Intermittent rivers, streams and tributaries — those that do not have a year-round flow — are to be regulated at the discretion of the District Engineer.

The rules define dredged material as any material excavated from any of the waters subject to the Corps' § 404 jurisdiction, and fill material as any pollutant used in such waters to replace an aquatic area with dry land or to change the bottom elevation of such a water body for any purpose. Materials produced in normal farming, silviculture and ranching activities such as plowing, cultivating, seeding and harvesting are specifically excluded from these definitions, and discharges of material excavated for purposes of mineral extraction are exempted [5 ELR 10144] from the § 404 permit requirements because they are regulated under the § 402 NPDES permit programs.

Because of budgetary and manpower constraints, the regulatory program under § 404 will be phased in over a two year period. During Phase I, which began when the regulations were promulgated, permits will be required for discharges of dredged or fill material in all coastal waters, in navigable rivers, lakes and streams (those waters subject to Corps jurisdiction under the traditional definition of navigable waters), and in their contiguous or adjacent wetlands. Under Phase II, which will begin July 1, 1976, regulation will be extended to include discharges in primary tributaries to waters covered in Phase I, their contiguous wetlands, and all lakes. In Phase III, which commences July 1, 1977, the Corps will undertake regulation of dredged and fill material discharges in all waters subject to its § 404 jurisdiction.

The interim rules exempt from regulation any discharge completed before the rules were issued and any discharge of less than 500 cubic yards pertaining to a single project which was commenced prior to July 25, 1975 and is completed within six months. The regulations also allow construction, without a permit but subject to certain conditions, of minor bulkheads and fills less than 500 feet in length for the purposes of property protection provided it does not take place in navigable waters as traditionally defined, and involves a discharge of less than one cubic yard per running foot. Federal agency activities which involve the discharge of dredged or fill material are not exempted from the § 404 regulatory scheme.

The states play a significant role in the protection of wetlands and watercourses under the interim rules. A § 404 permit cannot be issued if the state in which the discharge will occur denies a water quality certification for the activity under § 401 of the Act, or a certification that the activity will comply with its coastal zone management plan, if it has one. In the absence of a timely response from the state, however, the permit application will be processed to a conclusion. If a state which has an existing program to regulate the same type of activities covered by § 404 denies a permit for a particular discharge, the Corps will not issue a § 404 permit for that activity. On the other hand, if the state issues a permit, the Corps will generally not deny a § 404 permit for the discharge unless overriding national factors of the public interest dictate such action, and provided the concerns, requirements and policies of NEPA, the Fish and Wildlife Coordination Act, the Endangered Species Act, the Coastal Zone Management Act and the FWPCA have been addressed. The District Engineer may make arrangements with states which have ongoing permit programs for joint processing of Corps and state permit applications, including joint public notices and hearings, and joint developments, review and analysis of information.

The regulations also provide for the issuance of general permits for certain clearly described categories of discharges, after which individual activities falling within those categories can be undertaken without the need for obtaining individual permits. The duration and conditions attached to each individual or general permit will be determined by the District Engineer when the permit is issued. All permits for the discharge of dredged or fill material must be of limited duration with a definite expiration date, but extensions may be granted.

1. 33 C.F.R. § 209.120, 40 Fed. Reg. 31320 (July 25, 1975); ELR 46319.

2. Natural Resources Defense Council, Inc. v. Callaway, 5 ELR 20285 (D.D.C. Mar. 27, 1975).

3. 33 U.S.C. §§ 1344 and 1362(7).

4. 40 Fed. Reg. 19766 (May 6, 1975). For a more detailed explication of the court order and the events surrounding publication of the May 6 proposals, see Comment, Comprehensive Wetlands Protection: One Step Closer to Full Implementation of § 404 of the FWPCA, 5 ELR 10099 (July 1975).