The Move to Amend § 404 of FWPCA: House Passes Bill Limiting Federal Authority Over Dredge-and-Fill Activities

On April 5, 1977,¹ the House of Representatives passed a bill which would severely limit the federal government's authority to regulate the dredging and filling of wetlands. H.R. 3199 renews a number of funding authorizations under the Federal Water Pollution Control Act (FWPCA), including the multi-billion dollar grant program for construction of municipal sewage treatment facilities. But the measure also contains a section, nearly identical to one that died in conference last year, which narrows, for the purposes of determining the limits of federal dredge-and-fill jurisdiction under § 404 of the Act,² the broad definition of "navigable waters" set forth in § 502(7).³ The bill also restricts federal regulatory authority over such activities pursuant to the Rivers and Harbors Act of 1899,⁴ in addition to exempting normal farming and silvicultural operations from § 404's permit requirements.

Historical Background

This effort to restrict federal regulatory power over dredge-and-fill activities grows out of the tangled history of the implementation of § 404. In 1975 the Corps was ordered by the federal district court in Washington, D.C. to expand the scope of its dredge-and-fill permit program under § 404 to the limits of the term "waters of the United States."⁵ In proposing regulations in response to this order, the Corps issued an ill-considered press release which raised groundless fears among farmers, foresters, and ranchers that the legally required expansion might necessitate federal permits for the excavation or filling of stock ponds and irrigation ditches, the construction of logging roads, or even, in the words of the release, "for plowing a field."

The Corps subsequently repudiated the press release and promulgated regulations expanding the permit program's coverage in three stages.⁶ Moreover, the agency stuck by its newly-articulated policy against "unnecessary" destruction of wetlands in turning down a permit application from the Deltona Corporation to dredge and fill more than 2,000 acres of mangrove swamps as part of its Marco Island development near Naples, Florida.⁷

Opposition to the expanded federal permit program had been galvanized among farmers, ranchers, and [7 ELR 10083] developers, however. In 1976, the House ultimately passed a bill⁸ which narrowed the definition of navigable waters under § 404, but the measure died when a House-Senate conference in the last days of the 94th Congress could not reach agreement.⁹ The amendment effort has now been resuscitated, and H.R. 3199 contains the same provisions for cutting back the Corps' authority under § 404 as did last year's measure.

Provisions of H.R. 3199

Section 16 of H.R. 3199 would curtail the scope of federal regulatory power over dredge-and-fill operations by altering the definition of waters subject to federal regulation under § 404. The bill provides that federal jurisdiction shall cover "navigable waters and adjacent wetlands," but that such waters shall include only:

waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement, as a means to transport interstate or foreign commerce shoreward to their ordinary highwater mark (mean higher high water mark on the west coast).

This "commercial" navigability test is a much narrower jurisdictional standard than the broad "waters of the United States" formulation currently contained in § 502(7) of FWPCA. In fact, it is even more restrictive than the "historical" navigability test by which the limits of federal authority under the Rivers and Harbors Act of 1899 are determined.¹⁰ Taking account of this latter fact, the bill expressly limits power to regulate dredge-and-fill activities under the Rivers and Harbors Act to newly-defined navigable waters and adjacent wetlands.

The bill's explicit distinction between wetlands and waters is also an innovation. Under § 502(7) and the Corps' current regulations,¹¹ wetlands are simply considered part of the "waters of the United States," but H.R. 3199 would separate the two and treat them differently in certain circumstances.

The bill also specifically exempts normal farming, silviculture, and ranching activities, as well as the construction or maintenance of farm or stock ponds and irrigation ditches from the § 404 permit program, a move that seems redundant in light of its narrowing of the scope of federal dredge-and-fill jurisdiction as a whole. Maintenance of currently servicable structures such as dikes, dams, levees, break-waters, and bridge abutments is likewise excluded from the federal permit requirements, as are congressionally authorized projectsfor which National Environmental Policy Act (NEPA) impact statements have been prepared and submitted to Congress.

H.R. 3199 provides further that the Corps of Engineers may issue general permits covering classes of dredge-and-fill activities and may delegate to a state upon its request all or any part of its regulatory authority over adjacent wetlands in that state. Such a delegation would hinge on a determination that the state has the authority, responsibility, and capability to carry out those functions and that such a delegation is in the public interest. The Corps may subject the delegation to any terms and conditions it deems necessary, including suspension and revocation for cause. The Corps could also delegate in the same manner and with the same requirements and conditions its authority under the Rivers and Harbors Act relating to any fresh-water lake not created by the Corps or the Department of the Interior and located entirely within one state.

The one possible exception to these drastic restrictions on federal authority is where a state governor enters into a joint agreement with the Corps that waters and wetlands which do not fall within the new definition merit protection from dredge-and-fill operations because of their "ecological and environmental importance." If such an agreement is reached, the Corps would be authorized to regulate dredge-and-fill discharges into those waters and wetlands, but the agreement would be subject to revocation in whole or in part by either party apparently for any reason.

Prospective Effects

The geographic impacts of § 16 on the federal program for regulating dredge-and-fill operations would be dramatic. As much as 98 percent of the nation's stream miles and 80 percent of its wetland areas would be placed beyond the program's reach.¹²

The measure's institutional effects would likewise be serious. The reduced scope of § 404, in tandem with the new limits imposed on federal authority to regulate dredging and filling under the Rivers and Harbors Act of 1899, would open loopholes in the FWPCA, such as allowing the permitless discharge of dredge spoil contaminated by toxic pesticides or industrial chemicals into non-commercially navigable waters or adjacent wetlands. The provision for delegation of regulatory authority to the states fails to set explicit guidelines or criteria for assuring that the recipient states are capable of assuming such authority or to allocate federal funding for program costs. Should this foster inadequate state regulatory efforts under delegated § 404 authority, additional citizensuit litigation under § 505 challenging the legality of these state programs is a distinct possibility.

Because it breaches the basic assumption of the interrelated character of water systems which underlies the Act, H.R. 3199 might also serve to open the way for comparable limitations on the scope of federal jurisdiction over point-source discharges under § 402, limitations which would cut at the heart of the national water pollution control program. The insertion of a second definition of navigable waters into the integrated statutory scheme established by the FWPCA could also work mischief in the area of enforcement. Section 301 prohibits permitless discharges of pollutants, including dredge-and-fill materials, into "navigable waters." Unlike § 502(7)'s "waters of the United States" which does include wetlands, the new definition that H.R. 3199 seeks to write into § 404 expressly distinguishes adjacent wetlands from navigable waters. The measure may thus [7 ELR 10084] preclude § 301-based enforcement actions against illegal dredging and filling operations in adjacent wetlands.

Both the Corps of Engineers, which initially attempted to shirk its regulatory responsibilities under § 404, and the Environmental Protection Agency (EPA) oppose § 16 of H.R. 3199. The agencies contend that the concerns § 16 addresses have been or can be adequately resolved by administrative regulations.¹³

Interested environmental groups join in this opposition, but would generally find acceptable an amendment explicity allowing the issuance of general permits for categories of discharges in designated waters that cause only minor individual and cumulative environmental impact. These groups also believe a specific exemption for normal farming, ranching, and silviculture activities such as that offered by Rep. Cleveland (R-N.H.) but defeated in a voice vote on the House floor,¹⁴ would be justified in lieu of the redefinition of "navigable waters" attempted by § 16. EPA, the Corps, and environmental groups all diametrically oppose this redefinition as an unnecessary weakening of federal protection of ecologically valuable wetland areas.

Legislative Strategies

After passing H.R. 3199, the House voted to attach its provisions as Title II in the already-passed public works jobs bill (H.R. 11) and call for a conference on the combined measure. The Senate's version of the jobs bill (S. 427), which was passed on March 10, extends funding authorizations for sewage treatment plant construction grants and other EPA water programs for two years but includes no amendment to § 404.The Senate Public Works Committee put forward this "authorization only" measure after deciding to defer action on controversial changes in the Act until later in this session in the interest of expediting action on the authorization extension. In its report,¹⁵ the Committee noted that as many as 34 states may exhaust their allocated construction funds before September 30, 1977.

The House refused to go to conference with the Senate on the jobs bill for almost a month, however, while it brought to fruition a number of substantive amendments to the FWPCA, including the new restrictions on federal dredge-and-fill jurisdiction, in H.R. 3199. The tactic of adding these provisions to the House version of the jobs bill and then calling for a conference is clearly designed to hold the jobs bill and FWPCA funding extension, which are universally agreed to require swift enactment, hostage to Senate acceptance of the House FWPCA amendments, including its modifications of § 404.

The Senate, led by Senators Randolph (D-W.Va.) and Muskie (D-Me.) of the Public works Committee, is sticking to its guns for now, and the resulting impasse makes unlikely early enactment of any § 404 amendment. In the meantime, supporters and opponents of § 16 will be busy attempting to ensure that their respective points of view predominate in any compromise arrived at in conference. The environmental community in particular will be watching the conference closely since the fate of the nation's wetlands literally hangs in the balance.

1. 123 CONG. REC. H3063 (daily ed. Apr. 5, 1977).

2. 33 U.S.C. § 1344, ELR 41124.

3. 33 U.S.C. § 1362(7), ELR 41125. Navigable Waters is defined in § 502(7) as all "waters of the United States." The Corps of Engineers regulations implementing § 404 administratively exclude from this expansive standard natural lakes with a surface area of less than 5 acres and streams with a normal flow of less than 5 cubic feet per second. 33 C.F.R. § 209.120(d)(2)(h)(ii)(c) and (d), ELR 46324.

4. 33 U.S.C. § 401 et seq., ELR 41141.

5. Natural Resources Defense Council v. Callaway, 392 F. Supp. 685, 5 ELR 20285 (D.D.C. 1975).

6. 33 C.F.R. § 209.120, ELR 46319, 40 FED. REG. 31320 (July 25, 1975).

7. Report on Application for Department of the Army Permits to Dredge and Fill at Marco Island, Florida, 6 ELR 30020 (Chief of Engineers, Dept. of the Army, Apr. 15, 1976). See also, Comment, Corps Confirms Policy Against Unnecessary Development in Wetlands, 6 ELR 10117 (June 1976).

8. H.R. 9560, 94th Cong., 2d Sess. (1976).

9. See Comment, Congress Fails to Amend the Clean Air Act or § 404 of the FWPCA, 6 ELR 10246 (Nov. 1976).

10. See State Water Control Board v. Hoffmann, __ F. Supp. __, 7 ELR 20219 (W.D. Va. Jan. 11, 1977).

11. 33 C.F.R. § 209.120, ELR 46319. The regulations are currently being revised.

12. 123 CONG. REC. E1963 (daily ed. Mar. 31, 1977) (remarks of Rep. Ottinger).

13. Joint Statement by the Corps of Engineers and Environmental Protection Agency on Section 404, reprinted at 123 CONG. REC. E1963 (daily ed. Mar. 31, 1977).

14. 123 CONG REC. H3058-3060 (daily ed. Apr. 5, 1977).

15. S. REP. No. 95-38, 95th Cong. 1st Sess. (1977).