23 ELR 10284 | Environmental Law Reporter | copyright © 1993 | All rights reserved

Federal Wetlands Law: Part II

Margaret N. Strand

Editors' Summary: In this second of a three-part series on federal wetlands law, the author continues her comprehensive review of the current state of federal wetlands laws and regulations. The author first analyzes individual permits under the Clean Water Act § 404 program, including the application process, interagency consultations, the substantive standards for § 404 permits, and EPA's § 404(c) veto authority. She next covers enforcement mechanisms in the § 404 program, including administrative enforcement options and civil and criminal judicial enforcement. She then analyzes judicial review of § 404 wetlands actions, including review of permits, regulatory decisions, and citizen suits. The author next analyzes the controversial takings issues associated with regulating wetlands. She includes coverage of recent takings cases involving wetlands and assesses the potential impacts to wetlands issues from the U.S. Supreme Court's 1992 decision in Lucas v. South Carolina Coastal Council, 22 ELR 21104. Finally, the author explores state program authority under § 404, including the process for state authorization and the preservation of other state powers.

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.

[23 ELR 10285]

Chapter 6. Individual Permits Under § 404

The individual wetlands permit process and standards under the CWA derive primarily from § 404(a), (b), and (c). However, virtually all of the operative requirements are found in regulations, rather than the statute. Section 404(a) gives the Corps authority to issue permits; from this, the Corps has established procedural and substantive regulations to govern individual permit review. Section 404(b) authorizes EPA to set the environmental standards that must be met by each permit, for the disposal of fill; EPA's § 404(b)(1) guidelines thus constitute the substantive environmental criteria for evaluating § 404 permit applications. Finally, § 404(c) allowsEPA to override or veto a Corps' permit if its issuance would adversely affect certain environmental values. Dividing these authorities between the Corps and EPA has produced a permit process replete with interagency consultation. Other laws, including the Fish and Wildlife Coordination Act (FWCA),1 NEPA,2 and the Endangered Species Act (ESA),3 impose additional substantive and coordination obligations on the Corps, EPA, and other agencies involved in the § 404 permit process.

I. Processing the Corps' Permits

The Corps' permit regulations, reissued in 1986,4 set forth the process for issuing § 404 permits.5 Although the regulations provide detailed information, applicants should work closely with the Corps' personnel before and during the permit process to avoid mistakes.

A. Applications for Individual Permits

Preapplication Consultation. For activities requiring a § 404 permit, the Corps encourages preapplication consultations with district engineer staff.6 These consultations allow the staff to advise potential applicants on studies and other information that may be required to process permit applications. District engineers are required to provide potential applicants with all useful information necessary for pursuing an application, including all the factors that the Corps must consider. The Corps will designate a single district staff member as the point of contact to coordinate NEPA's procedures and all attendant reviews, meetings, and hearings.

Application Form and Content. All applicants for a § 404 permit must use standard application form ENG Form 4345. The application must include a complete description of the proposed activity and detailed information sufficient to satisfy all applicable substantive standards.7 The application must contain sufficient data to demonstrate compliance with the requirements of EPA's § 404(b)(1) guidelines. District engineers may request specific additional information on a case-by-case basis. The application must be signed by the person who will undertake the proposed activity, or a duly authorized agent. Where a company is the applicant, an officer of the company must sign the application.8 There is a $100 fee for processing a § 404 permit application.

Typically, the Corps will determine that an application is complete when it decides that it has sufficient information to issue public notice of the application.9 The Corps may, however, issue public notice before it receives all the information necessary to evaluate the application.10

B. Processing Applications

The General Process. The Corps' regulations provide standard procedures for processing permit applications.11 While these work for routine applications, applications for major projects requiring § 404 permits rarely, if ever, are processed within the time limits set forth in the standard procedures.

In general, upon receipt of a permit application, the Corps assigns a number for identification, acknowledges receipt of the application, and advises the applicant of the number assigned. The regulations require the Corps to review the application for completeness and, if not complete, request additional information within 15 days.12 If the Corps determines that the application is complete, it will issue a public notice as detailed in 33 C.F.R. § 325.3.

The public notice is the primary method both of advising interested parties of the proposed activity for which a permit is sought, and of soliciting comments and information that are necessary to evaluate the activity's effects on the public interest. Thus, the notice must include sufficient information to give a clear understanding of the nature and magnitude of the proposed activity. The notice also must advise the public that any person may request in writing a public hearing. In addition, each public notice must include a paragraph describing the various evaluation factors on which decisions will be based.13

Public notices must be distributed for posting in post offices or other appropriate public places in the vicinity of the proposed work site, published in local news media, and sent to pertinent government agencies. Notice must also be sent to all parties who have specifically requested copies of public notices and to the appropriate officials at EPA, the FWS, the National Marine Fisheries Service, and state historic preservation officers.

A district engineer must consider any comments received in response to the public notice,14 and all comments become part of the administrative record of the application. District [23 ELR 10286] engineers may also seek comments from the applicant. The regulations also provide that at the earliest practicable time, other substantive comments will be furnished to the applicant for his information and any views he may wish to offer. The applicant may contact directly parties submitting objections in an attempt to resolve objections, but is not required to do so.15

Hearings. A district engineer will evaluate an application to determine the need for a public hearing.16 As mentioned, any interested member of the public may request a hearing.17 The Corps is not required to hold a hearing, however, if none is requested. Moreover, in AJA Associates v. U.S. Army Corps of Engineers,18 the court held that due process does not require the Corps to grant a permit applicant a hearing, absent a request for a hearing while the application is being considered.

If a hearing is requested in writing, the district engineer may still assess whether a hearing is "needed for making a decision on such permit application."19 The district engineer may try to resolve the issues informally or, if not successful, will set a time and place for a public hearing and give notice.20 Public notice must be given at least 30 days prior to the hearing. The notice is sent to all federal agencies, affected state and local agencies, and other parties having an interest in the hearing.21 Also, the district engineer may deny a hearing request if he determines that the issues raised are insubstantial or there is otherwise no valid interest to be served by a hearing.22 The Corps' headquarters may require a hearing in any case.

The hearings are informal in nature,23 and an adjudicatory or trial-type hearing is not required.24 A district engineer normally serves as the presiding officer at a hearing, although he may designate a deputy district engineer or some other qualified person. Any person may present oral or written statements concerning the subject matter of the hearing and may also call witnesses who may present statements. Although participants are afforded a reasonable opportunity for rebuttal,25 there is no cross-examination of witnesses. After a hearing, the presiding officer must allow at least 10 days for the submission of written comments.26

The regulations provide that a public hearing also may be held when the Corps proposes to modify or revoke a permit.27 The Corps, however, is not required to hold a hearing where the applicant is seeking renewal of an expired permit.28

The Corps' Decision. District engineers are required to prepare a statement of findings (SOF) or, when an EIS has been prepared, a record of decision (ROD) on whether to issue or deny the permit.29 The SOF or ROD includes a statement of the facts, an environmental assessment or EIS, the district engineer's views on the proposed project's effect on the public interest, and analysis indicating conformity with the § 404(b)(1) guidelines. A district engineer's decision acts as notice to EPA and other agencies that, absent their objection, the Corps intends to issue the permit. If no interagency issues arise, the permit will be forwarded to the applicant for signature.

There is no administrative appeal of a district engineer's decision. An applicant may appeal the denial of a permit by filing a civil action in the appropriate U.S. District Court.30 If another federal agency objects to the Corps' decision, there are procedures for addressing these objections at the local level and at the headquarters of either agency. This interagency consultation process is described below.

C. Consultation With Other Agencies

The Corps' obligation to consult with other agencies on § 404 permit applications arises from several legal sources. Section 404(q) of the CWA requires the Corps to enter into MOAs with EPA, the DOI, and other federal agencies to facilitate the coordination of permit review.31 Through this procedural duty, the Corps recognizes the substantive responsibilities of other agencies under laws relating to wetlands. For example, EPA has the authority under § 404(c) to review individual permits, as mentioned.32 Also, the FWS has statutory consultation rights under the FWCA and the ESA.33 Further, the Corps' regulations recognize that many additional federal laws are related or applicable to § 404 permits.34 Through consultation, the Corps leaves room in the processing of permit applications for complete coordination with other federal agencies. Applicants will always be asked to provide information sufficient to enable the Corps to satisfy or resolve the views of the consulting agencies. The Corps, however, remains the ultimate decisionmaker.35

Section 404(q) MOAs. Pursuant to § 404(q), the Corps has executed and from time to time revised MOAs with [23 ELR 10287] EPA, the FWS, and the National Oceanic and Atmospheric Administration (NOAA) within the Department of Commerce. In 1992, new MOAs were signed,36 revising the elevation process that had been in place since 1985.37 The MOAs establish procedures and time frames for elevating disputes over both specific permit applications and general policy matters. The elevation process provides a "safety valve," so that local offices can obtain higher level agency review of significant disputes. The primary concern of the elevation process is finding a balance between reasonably speedy processing of individual permits and resolving policy issues that may arise in the context of individual applications. Additional concerns include allowing autonomy for decentralized permit issuance in the Corps' districts while assuring the uniform application of § 404 standards nationwide.

The 1992 interagency MOAs address general coordination procedures, including setting standards for interagency communication, cooperation with site visits and other application review matters, and rapid notification of comments.38 The MOAs also provide distinct routes for elevation of policy issues and issues involving specific permit applications.39 This approach is designed to avoid delay in individual permit applications where the interagency dispute involves broad policy issues, rather than permit-specific matters. To this end, the MOAs provide that individual permit decisions will not be delayed during policy issue elevations.40

The MOAs establish a significant threshold for elevating disputes over individual permits. Such elevation is limited to cases involving aquatic resources of national importance.41 Permit disputes can be elevated only where such resources will suffer net unacceptable adverse impacts after consideration of any proposed mitigation. The standard is comparable to the standard for invoking § 404(c).42 In contrast, policy issues may be elevated if an action or series of actions raises concerns about the application of any procedural or substantive policies.43 Where policy issues are elevated, the Corps will decide, after review, whether public comment is warranted and whether any formal changes in rules are needed. The final decision on permit applications rests with the Corps. The final decision on policy issues depends on whether the matter falls under the Corps' authority or the legal authority of the commenting agency. For example, EPA has legal authority to issue the § 404(b)(1) guidelines, so resolution of policy issues involving those guidelines would rest with EPA.

Coastal Zone. In areas affecting the coastal zone, an applicant must provide the district engineer with a certification that the proposed activity complies with, and will be conducted in a manner that is consistent with, the applicable state coastal zone management plan.44 NOAA administers the federal Coastal Zone Management Act (CZMA),45 and must be consulted when § 404 permits are proposed in the coastal zone.46 The applicant must demonstrate that its project has been certified as consistent with the state coastal zone management plan, or that consistency has been waived. If actual construction will occur in the coastal zone, an applicant may also need to obtain a separate permit from the relevant state coastal zone management officer or commission.

The Corps issued two RGLs in 1992 addressing consultation under the CZMA. RGL 92-3 encourages the Corps' districts to participate, where appropriate, as states develop Special Area Management Plans (SAMPs), which are designed to guide development in sensitive areas of the coastal zone.47 RGL 92-4 explains the kinds of conditions that the states may impose on the Corps' nationwide permits under authority of either the CZMA or CWA § 401.48 The Corps explains that it will not allow imposition of unreasonable or illegal conditions on the nationwide permit program through the vehicle of state consultation.

Historic Properties. Pursuant to § 106 of the National Historic Preservation Act (NHPA)49 and the Corps' regulations,50 the Corps must take into account "the effects, if any, of proposed undertakings on historic properties both within and beyond the waters of the U.S." Further, where the undertaking that is the subject of a permit action may directly and adversely affect any national historic landmark, as defined in the NHPA,51 the Corps shall, to the maximum extent possible, place conditions in permits to minimize harm to such landmarks.52 Archaeological sites may also be protected historic properties.

In making these determinations the Corps must consult with the applicable state historic preservation officers and the Federal Advisory Council on Historic Preservation (Advisory Council).53 If there are properties on or eligible for listing on [23 ELR 10288] the National Register of Historic Places,54 and if the permitted activities will have an adverse affect on the places, the parties must attempt to enter into an MOA55 that contains provisions specifying how the project will be conducted to avoid or mitigate adverse effects on the properties. If no agreement is reached, the Corps may request comments from the Advisory Council. However, the Corps can proceed with the action without accepting the views of the Advisory Council.56 The commenting authority is extensive, however, and delays caused by reviewing effects on historic properties may defeat a project. In addition, district engineers may add those permit conditions which they determine are necessary to avoid or reduce effects on historic properties.57

Endangered Species. The Corps must also consider the effect of permit activities on endangered species. Section 7 of the ESA requires federal agencies to "insure that any action authorized, funded or carried out by such agency … is not likely to jeopardize … any endangered or threatened species," or to adversely affect such species' critical habitat.58 Thus, the Corps must consider how any listed species may be impacted by issuance of a § 404 permit.59

The scope of the analysis of the effects from permit activities on endangered species that is necessary for making § 404 permit decisions has caused controversy. Generally, the Corps assesses permit activity effects only in the permit area.60 The Corps, however, will assess such effects beyond the immediate permit area in three situations. First, the Corps will consider activity effects on species that are physically caused by the activity authorized by the Corps. Thus, when the activity authorized by the Corps has a physical effect on threatened or endangered species outside the permit area, the Corps will look outside this area to evaluate those effects.61 Second, the Corps will consider activity effects beyond the permit area when the Corps is advised of a linear project, such as a pipeline, that will affect critical habitat outside the permit area and the Corps, through its control over the placement of a river crossing, can reasonably steer the route of the linear project around the critical habitat. The third area where the Corps may enlarge the scope of the ESA's review to include an entire linear project is when "the linear project requires the Corps to issue such a significant number of permits, or permits, authorizing such a large portion of the project length, that by granting the permits, the Corps essentially would be authorizing the entire project or segments thereof."62 When none of these three situations are present, the Corps will confine its ESA review to the permit area.

D. State Water Quality Certification

Section 401 of the CWA requires the district engineers to obtain a certification from the applicable state63 that water quality standards will not be violated as a result of a discharge of fill material. This requirement is reiterated in the § 404(b)(1) guidelines.64

To implement this requirement, the Corps sends the draft § 404 permit to the relevant state agency for a determination that the filling of the wetlands in question will not cause a violation of the state's water quality standards.65 The Corps' RGL 90-0466 addresses water quality considerations. The RGL provides that a state certification of compliance with applicable effluent limitations and water quality standards will be conclusive with respect to water quality considerations, unless EPA advises the district engineer of other water quality aspects that he should examine.

Normally, district engineers can presume that a state's water quality certification satisfies the requirements of CWA § 401, the § 404(b)(1) guidelines, 40 C.F.R. § 230.10(b)(1), and the Corps' regulations at 33 C.F.R. § 320.4(d). However, the Corps may take into account EPA's objections and concerns over water quality outside the scope of the state's § 401 certification, indirect impacts on water quality that the state's certification does not address, and matters in the certification with which EPA has a different viewpoint. In those cases where EPA has advised a district engineer of "other water quality aspects," the district engineer must make his own independent judgment regarding compliance with the § 404(b)(1) guidelines and the consideration of water quality issues in the public interest review process, but is to coordinate his actions with the state certifying agency and EPA.

E. After-the-Fact Permits

The Corps' regulations provide for after-the-fact (ATF) permits in certain circumstances.67 The ATF permits are [23 ELR 10289] addressed as part of the Corps' enforcement policy. Thus, any unpermitted discharge must be investigated by the appropriate district engineer;68 if the activity is still in progress, a cease and desist order is issued.69 After consulting with other federal agencies, the district engineer may either recommend legal action against the discharger, or request that the discharger apply for an ATF permit.70 An ATF permit cannot be entertained until the applicant completes any remedial work required by the Corps, and it cannot be issued if any enforcement litigation is ongoing.71

Also, ATF permits must comply with the § 404(b)(1) guidelines.72 There has been limited judicial review of AFT permits.73 The First Circuit Court of Appeals sustained a Corps' decision to refuse an ATF permit application until the discharger complied with the cease and desist order requiring restoration of the area to its wetland condition.74 The court held that the Corps' regulations "clearly require that remedial work be completed before the Corps will accept an after-the-fact permit application."75

F. Permit as Shield

Section 404(p) of the CWA76 provides that "compliance with a permit issued pursuant to this section, including any activity carried out pursuant to a general permit issued under this section, shall be deemed compliance, for purposes of sections 309 and 505 with sections 301, 307 and 403." Thus, a permit issued under § 404 acts as a shield to enforcement actions, so long as the permittee complies with all of the terms of the permit.

II. Substantive Standards for § 404 Permits

The substantive standards for § 404 permits are found in EPA § 404(b)(1) guidelines, the Corps' public interest review regulations, and policy memoranda of the two agencies. Permits may be conditioned or denied based on these governing standards. Compliance with NEPA may also result in imposition of additional permit conditions.

A. The § 404(b)(1) Guidelines

Congress authorized EPA to establish guidelines setting out environmental criteria for issuing permits. These § 404(b)(1) guidelines are binding substantive rules,77 promulgated by EPA in consultation with the Corps,78 and no § 404 permit can be issued unless the guidelines are satisfied.79

While the § 404(b)(1) guidelines have been described as the cornerstone of the § 404 permit program, applying the guidelines in specific, major cases is often controversial. The criteria set forth in the guidelines are qualitative, rather than quantitative. As such, applying the guidelines requires the exercise of judgment, which has given rise to differences of opinion on the meaning of the guidelines in particular circumstances.

All wetlands are considered to be "special aquatic sites" under the § 404(b)(1) guidelines.80 Special aquatic sites are subject to greater protection than other waters under the guidelines, because of their significant contribution to "the general overall environmental health or vitality of the entire ecosystem of a region."81 The guidelines identify the valuable functions and characteristics of wetlands that warrant this special protection.82

The guidelines also require the evaluation of practicable alternatives to any proposal to fill, and establish a presumption that there are practicable, upland alternatives to filling in wetlands. Under the guidelines, impacts of the filling must be fully analyzed, and the permitted activity may not violate any other applicable law or cause a significant degradation of the waters. Further, the guidelines establish policies to mitigate the impacts of filling. Each of these elements is addressed next.

Practicable Alternatives. The § 404(b)(1) guidelines provide a "practicable alternatives" test, which is designed to assess whether a project that depends on filling can be located elsewhere. The guidelines provide that:

[N]o discharge of dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences.83

The guidelines contain a presumption that a project involving a proposal to fill that is not water dependent (does not require access or proximity to, or siting within, a wetland),84 will have practicable, upland alternatives, unless clearly demonstrated otherwise.85 In addition, where a discharge is proposed for a wetland, there is a regulatory presumption that all practicable alternatives to the proposed discharge, which do not also involve a discharge into a wetland, have less adverse impact on the aquatic ecosystem, unless clearly demonstrated otherwise.86

[23 ELR 10290]

The Corps summarized its construction of the practicable alternatives test for water dependent and nonwater dependent projects in RGL 92-2.87 The RGL notes that even for water dependent projects, 40 C.F.R. § 230.10(a) requires a showing that the proposed action is the least environmentally damaging, taking into account alternatives as appropriate. The RGL uses cranberry production as an example, since it is conceded to be water dependent. Even for such projects, the Corps requires consideration of upland alternatives as part of the regulatory evaluation of environmental damage.88

The applicant bears the burden of demonstrating that there are no practicable alternatives,89 and the burden is difficult to meet.90 As mentioned, if a proposed project is not water dependent, it will be presumed that a practicable alternative site exists.91 In order to meet its burden, an applicant must conduct a survey of all practicable alternatives and submit the results to the Corps during the permit process.92 To succeed in meeting its burden, an applicant must demonstrate that there are no upland areas that can accommodate, or are available for, the project purpose.

Perhaps the stickiest part of the practicable alternatives standard has been measurement of the project purpose: how much weight can or must the Corps give to the applicant's own description of the purpose of the project in determining whether alternatives are practicable.93 Current Corps guidance, provided in lengthy opinions issued when certain permits were elevated under § 404(q), provides that the Corps must independently evaluate the project purpose in light of the public interest, rather than relying solely on the applicant's view of the purpose and alternatives.94

The courts have held that the Corps has a duty to consider the applicant's view of the project purpose when applying the practicable alternatives test. In Louisiana Wildlife Federation, Inc. v. York,95 the U.S. Court of Appeals for the Fifth Circuit stated: "[T]he Corps has a duty to take into account the objectives of the applicant's project. Indeed, it would be bizarre if the Corps were to ignore the purpose for which the applicant seeks a permit and to substitute a purpose it deems more suitable."96 Further, the applicant's purpose must be legitimate,97 and the Corps cannot reject an applicant's genuine and legitimate project purpose. The Corps, however, is not required to issue a permit to accommodate incidental components of a project.98 But, the Corps may consider a portion of a project in light of the entire project.99

In addition, the Corps may legitimately consider the costs and logistics to the applicant.100 One court has held that additional cost alone is a sufficient reason for classifying an alternative as impracticable only when competing alternatives can reasonably be viewed as equivalent with respect to technological feasibility, potential for environmental harm, and other relevant factors.101 It is important to remember, however, that the § 404(b)(1) guidelines treat alternatives as practicable even if the alternative involves property not owned by the applicant.102 Practicable alternatives are not limited to those which can be carried out by the applicant.103

[23 ELR 10291]

In weighing whether an alternative might have more significant adverse environmental consequences than the activity proposed by the permit applicant, EPA and the Corps have previously differed on the role of mitigation. EPA maintains that possible mitigation of a project's adverse effects should not be considered in evaluating practicable alternatives.104 The Corps has previously considered an applicant's proposals for mitigation as part of overall project proposals, which could be weighed against alternative sites.105 However, by joining with EPA in an MOA on mitigation, discussed below, the Corps has adopted EPA's policy as an interpretation of its own regulations.

No Significant Degradation. The § 404(b)(1) guidelines also prohibit permits for discharges of dredged or fill material thatwill "cause or contribute to significant degradation of the waters of the United States."106 Findings of significant degradation must be based on:

* the effect of the fill on the water bottom;107

* the effect of the fill on water flow and circulation;108

* the effect of the fill on turbidity;109

* the effect of any contaminant added to the water;110

* the effect of fill on the aquatic ecosystem and organisms;111 and

* the secondary effects of the fill on the aquatic ecosystems, such as downstream impacts.112

These determinations provide information on the immediate physical impacts caused by the fill activity.113 They are rarely stumbling blocks in obtaining a § 404 permit, unless they support a finding that the filling will "cause or contribute to significant degradation of the waters of the United States,"114 based on an evaluation of this information.

Mitigation or Minimizing Impacts. The § 404(b)(1) guidelines require that filling activities must be performed to achieve minimal adverse impacts:

[N]o discharge of dredged or fill material shall be permitted unless appropriate and practicable steps have been taken which will minimize potential adverse impacts of the discharge on the aquatic ecosystem. Subpart H identifies such possible steps.115

Subpart H sets forth a number of standards to minimize specific kinds of impacts. These rules have been construed to encompass a duty to mitigate impacts, not only through proper management of the filling itself, but also by compensating for wetlands destroyed by filling.

Mitigation is also addressed in the Corps' regulations, under which district engineers have authority to impose permit conditions to mitigate significant losses.116 In addition, the Corps must comply with the regulations of the Council on Environmental Quality (CEQ), which direct federal agencies to mitigate adverse environmental impacts when issuing permits.117 In reviewing mitigation proposals and establishing permit conditions, the Corps relies heavily on the FWS.118 Applicants may find it advantageous to work with the FWS prior to submitting a mitigation proposal.

In addressing mitigation, these agencies focus on three aspects: avoiding damages, minimizing impacts, and replacing the ecological resources lost as a result of a § 404 authorized fill activity. The government's current mitigation policy is embodied in an MOA between EPA and the Department of the Army concerning mitigation under CWA § 404(b)(1) guidelines.119 The Mitigation MOA provides that mitigation is to be approached in the following sequence:

Avoidance. An applicant must mitigate the impact of a project in the first instance by avoiding the filling of any wetlands in order to fulfill the project purpose.

Project modifications. If impacts cannot be avoided, they must be reduced or minimized to the extent practicable through project modifications, such as design changes.

Compensation. If all practicable project modifications have been accomplished and the project nonetheless will result in the loss of wetlands, the applicant must compensate for this loss. The compensation may take several forms, including on-site and off-site restoration or creation of wetlands.

The goal of compensation, however, is to replace lost wetland values or functions, not just to replace wetlands acre for acre. The Mitigation MOA specifically provides that mitigation for wetlands losses "should provide, at a minimum, one for one functional replacement (i.e., no net loss of values), with an adequate margin of safety to reflect the expected degree of success associated with the mitigation plan."120 The Mitigation MOA allows for less than one to one mitigation under certain circumstances.

In 1992, the Bush administration proposed to amend the § 404(b)(1) guideline requirements of sequential mitigation for the filling of wetlands in Alaska.121 The proposal [23 ELR 10292] identifies several special circumstances in Alaska to support allowing deviation from sequential mitigation. First, Alaska has historically lost less than one percent of the state's wetland acreage. Since most potential wetlands mitigation land is found at degraded wetlands sites, this low historic loss rate means that there is very little potential mitigation land available in Alaska.122 Second, 40 percent of Alaska's wetlands are already in federal or state conservation units, including parks, refuges, and other controlled ownership.123 Third, because of topography and the high percentage of land in Alaska that is wetlands, there are often no practicable alternatives to wetlands filling for development. The proposal states that requiring strict mitigation for wetlands filling would unduly hamper development in the state.124 EPA and the Corps recognized in their Mitigation MOA that some areas, like Alaska, might not be appropriate for sequential mitigation and one-to-one wetlands mitigation.125 EPA has requested comment on this proposed amendment.

One means of satisfying wetlands mitigation requirements is to establish "mitigation banks." In 1971, President Bush announced an effort to create and encourage the use of a mitigation banking system.126 In theory, mitigation banking allows a developer to create, restore, or enhance wetlands as compensation not only for wetland losses and impacts from a particular project, but also to plan broader mitigation projects that can be available to compensate for future wetland losses and impacts. Congress has also shown an interest in mitigation banking. The 1991 Surface Transportation Act included a provision that authorizes funding for state transportation departments to establish wetland mitigation banks.127

The availability of mitigation banking would provide greater economic and planning flexibility to developers, and a mechanism to halt the dwindling number of wetland acres nationwide. For example, mitigation banks could encourage the creation, restoration, and enhancement of large wetland areas, which generally have higher success rates and lower costs per acre than smaller ones. Moreover, mitigation banking could improve the success of wetlands mitigation if wetland banks were maintained in locations known to be hydrologically and ecologically favorable to wetlands, such as previously degraded wetlands. On the other hand, environmentalists and scientists are concerned that too much emphasis on off-site mitigation banking will result in destruction of natural wetlands at project sites, rather than project alterations to minimize impacts. Because many wetland functions are site-specific and are lost when wetlands are destroyed, wetland mitigation projects offsite cannot replace these values.128

Mitigation banking offers a structure within which the scientific values of wetlands and the economic development pressures for wetland acres can be coordinated and addressed. However, many issues need to be resolved, including who will manage the wetland mitigation bank and how rights to use the mitigation wetlands will be distributed. And even if mitigation banking is available, the mitigation requirements for individual permits will still be subject to the sequenced evaluations by the Corps and EPA, absent a change in government policy.

B. The Corps' Public Interest Review

The Corps bases its decisions to issue § 404 permits on an evaluation of

[T]he probable impacts, including cumulative impacts, of the proposed activity and its intended use on the public interest.129

In making public interest determinations, the Corps balances the benefits that are reasonably expected to accrue from the proposal against reasonably foreseeable detriments.130 The Corps' district engineers consider a range of factors in making public interest determinations, including: conservation, economics,131 aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shore erosion, recreation, water supply and conservation, water quality, mineral needs, considerations of property ownership, and, in general, the needs and welfare of the people.132 Subject to these considerations, and in accordance with other regulations such as the § 404(b)(1) guidelines, a permit will be granted unless a district engineer determines that it would be contrary to the public interest.133

While this public interest review is far-reaching, it has its limits. In Mall Properties, Inc. v. Marsh,134 the district engineer, as part of his public interest review, considered the socioeconomic impacts that a shopping mall project in North Haven, Connecticut, would have on New Haven, Connecticut. The district engineer concluded that the impacts were contrary to the public interest and that the permit should be denied.135 The court, however, held that the Corps' reliance on the socioeconomic impacts of the mall project on New Haven was not consistent with CWA § 404 or the Corps' public interest regulations. The court held [23 ELR 10293] that the Corps may consider economic effects that are proximately related to changes in the physical environment, but it may not consider and give significant weight to "economic effects unrelated to the impact which a proposed project will have on the environment."136 The court found that there was no basis in either the CWA or the RHA to support the Corps' expanded view of authority to assess a permit on socioeconomic grounds not affecting the physical environment.137 In another 1987 case, a federal district court held, in the context of a NEPA public interest review, that the Corps was required to consider the water supply needs of the receiving community before issuing a permit for a water service pipeline.138

The Corps' public interest regulations specifically identify a concern for wetlands. These regulations provide that "most wetlands constitute a productive and valuable public resource, the unnecessary alteration or destruction of which should be discouraged as contrary to the public interest."139 Moreover, the regulations provide that no permit of any kind that involves the alteration of wetlands identified as important to the public interest will be granted, unless the district engineer concludes that the benefits of the proposed alteration outweigh the damage to the wetlands resource.140

In addition to wetlands, the Corps also takes into consideration other ecological concerns in its public interest review, such as fish and wildlife; water quality; historic, cultural, scenic, and recreational values; and marine sanctuaries.141 Many of these areas of concern occur in wetlands.

C. The National Environmental Policy Act

NEPA142 applies to the Corps' decisions on permit applications and requires the consideration of broad environmental factors. The CEQ, which is responsible for administering NEPA, has promulgated implementing regulations that the Corps follows.143 Further, the Corps has promulgated its own NEPA procedures for the Corps' programs, including the § 404 permit program.144

NEPA's primary function is to assure that all federal agencies make informed, environmentally responsible decisions when considering federal actions that may have a significant impact on the environment. Generally, this requires agencies to evaluate potential environmental consequences of proposed actions. For major federal actions, impacts are required to be assessed in EISs.145

The Corps' regulations require that an environmental assessment (EA) must be prepared before the agency can approve a § 404 permit.146 Thereafter, the Corps must either issue a finding of no significant impact (FONSI) or develop more extensive information in the form of an EIS. Most § 404 permits are issued on the basis of EAs rather than full EISs.147

Environmental Assessments. The purpose of an EA is to help an agency determine whether there is enough likelihood of significant environmental consequences from a proposed action to justify the time and expense of preparing an EIS. Although no special format is required for an EA, it should include a brief discussion of the need for the proposed action, the environmental impacts of the action, potential alternatives, and a list of the agencies, interested groups, and the public consulted.148 The EA may be incorporated into planning and/or engineering reports, and should not normally exceed 15 pages.

After a Corps' district reviews an EA, it must decide whether to prepare a full EIS. If the Corps determines that an action will not have a significant effect on the human [23 ELR 10294] environment, it explains that finding in the FONSI. Either the EA, or a summary of it, is included with the FONSI.149

For the most part, the courts have deferred to and upheld the Corps' decisions that an EIS was not required for particular projects. However, there is a split of judicial authority over the applicable standard for reviewing a FONSI decision. In the U.S. Court of Appeals for the Seventh and D.C. Circuits, a Corps' determination to do a FONSI rather than an EIS will be set aside only if it is an "abuse of discretion."150 Alternatively, the Second, Third, Fifth, Ninth, and Eleventh Circuits apply a "reasonableness test."151 The Seventh Circuit has opined, however, that there is little practical difference between the two tests.152

In determining whether a FONSI decision should be reversed, one court has held that it must determine, based on the evidence before it, whether "contrary to the Corps' finding, the project may have a significant impact or the [Corps'] review of the project was flawed in such a way that it cannot be said whether the project may have a significant impact."153

In River Road Alliance, Inc. v. U.S. Corps of Engineers,, however, the court held that a four page EA, which was supplemented by 17 pages of additional findings, was a sufficient basis for the Corps' FONSI regarding the permitting of a temporary barge fleeting facility on the Mississippi River.154 The courts have also upheld the Corps' determinations that no EIS was required on the basis of a FONSI in conjunction with mitigating conditions imposed by the Corps.155

Environmental Impact Statements. When an EIS is required for major wetlands projects, the EIS and the necessary predicate studies generally are paid for and prepared by the permit applicant.156 The Corps, however, must investigate independently when an applicant's EIS information is credibly challenged as inaccurate.157 If an interagency dispute arises over the adequacy of an EIS, the matter can be referred to the CEQ for review.158

Many other NEPA compliance issues arise in the § 404 permit process. Because NEPA applies to federal actions other than § 404 permitting, NEPA case law involving other federal agencies may be pertinent to § 404 disputes. However, this primer identifies only some of the § 404 matters that have arisen under NEPA; practitioners should consult additional sources on NEPA for more full treatment.

Scope of Project Subject to NEPA. The Corps' regulations provide that an EIS should evaluate those portions of a project that are in waters of the United States, rather than looking in detail at upland portions of a project.159 This regulation was upheld by the Ninth Circuit in Sylvester v. U.S. Army Corps of Engineers.160 After upholding the regulations, the Sylvester court held that the Corps was not required to consider the impact of the entire proposed resort project in deciding that issuance of a permit to fill only 11 acres of wetlands for a golf course did not require an EIS. The court found that the golf course and the rest of the resort were not "joined to each other," and that the developer's plans to place part of the golf course in wetlands did not turn the entire resort complex into a major federal action.161

However, projects that are segmented or conducted in discrete parts may require an EIS. The CEQ's regulations provide in pertinent part that "[p]roposals or parts of proposals which are related to each other closely enough to be, in effect, a single course of action shall be evaluated [23 ELR 10295] in a single [EIS]."162 This is a factual determination and is to be made on a case-by-case basis.163

Adequacy of the EIS/Need for Supplemental EIS. If an EIS is prepared, the Corps must review it to determine whether it complies with the CEQ and the Corps' NEPA regulations.164 As mentioned, a primary purpose of an EIS is to provide decisionmakers with sufficient detailed environmental information to aid in the decision whether to take an action in light of its environmental consequences. Thus, the courts will find an EIS inadequate when it fails to identify major environmental consequences of the proposed action.165

Even after an EIS is prepared, a supplemental EIS may be needed. The passage of time, a change of circumstances, or a change in the project may result in significant impacts on the environment that were not considered in the original EIS.166 However, courts have interpreted NEPA's regulations to require that the new circumstance must "present a seriously different picture of the environmental impact of the proposed project from what was previously envisioned."167

III. The EPA's § 404(c) Veto Authority

Although EPA has used its § 404(c) veto power infrequently, that authority has presented some of the most controversial issues facing the § 404 program. In practice, the § 404(c) veto has been invoked when the Corps and EPA have a major disagreement over whether a discharge of fill should be allowed; the permit applicant and both agencies have engaged in multiple efforts to resolve the disagreement short of a veto; and, generally, fundamental issues concerning the regulations and the aquatic environment are at issue. It should be no surprise that many § 404(c) actions have ended in litigation.

Section 404(c) authorizes EPA to veto a Corps' decision to issue a § 404 permit when EPA "determines, after notice and opportunity for public hearings, that the discharge of [dredge and fill] materials into [a specified] area will have an unacceptable adverse effect on [five enumerated resources]."168 EPA may exercise this veto in advance of a specific permit application, by designating particular areas as unavailable for filling.169 In most cases, however, the § 404(c) veto arises in connection with specific permit proposals.170

EPA's § 404(c) implementing regulations define "unacceptable adverse effect" as an impact on aquatic or wetland ecosystems that is likely to result in significant degradation of municipal water supplies, including surface or groundwater, or significant loss of or damage to fisheries, shell fishing, wildlife habitat, or recreational areas.171 The regulations further provide that "in evaluating the unacceptability of such impacts, consideration should be given to the relevant portions of the 404(b)(1) guidelines."172 In fact, EPA uses § 404(c) as authority to police adherence to the § 404(b)(1) guidelines. Neither § 404(c) nor EPA's regulations provide detailed substantive standards for the veto; rather, EPA has used its interpretation of the § 404(b)(1) guidelines as the basis for most § 404(c) vetoes.

A. Procedures

An EPA regional administrator (RA) can initiate a § 404(c) proceeding on a finding that "an unacceptable adverse effect" could result from filling a particular site.173 An RA initiates such an action by providing written notice to the appropriate district engineer, the site owner of record, and the applicant.174 If the RA is not satisfied within 15 days of providing notice to the district engineer that no unacceptable adverse effects will occur, the RA will publish notice of his proposed determination.175 If a permit is pending, the district engineer may not issue the permit until final action is taken pursuant to § 404(c).176 The RA must give public notice in the Federal Register and send a copy to the appropriate district engineer.177

The RA then allows a comment period of between 30 and 60 days following the date of publication. During this period any interested persons may submit written comments, which are to be considered by the RA in making his [23 ELR 10296] recommended determination.178 If there is significant public interest, the RA may hold an informal hearing.179 Within 30 days after the conclusion of the public hearing or, if no hearing is held, within 15 days after the expiration of the comment period, the RA will either withdraw the proposed determination or prepare a recommended determination to deny the permit or restrict the permit activities.180

The recommended determination is then forwarded to the EPA Administrator for review.181 After reviewing the RA's recommendations and the record, the Administrator, within 30 days, initiates consultation with the Corps and the permit applicant.182 The Corps and the permit applicant then have 15 days to notify the Administrator of any intent to take corrective action that is acceptable to the Administrator to prevent unacceptable adverse effects.183 Within 60 days of receiving the record, the Administrator must make a final determination affirming, modifying, or rescinding the RA's recommended determination.184

B. Substantive Standards

As identified above, EPA's § 404(c) regulations lack any meaningful substantive veto provisions. Rather, most of the core issues at stake in § 404(c) vetoes have concerned the application of the § 404(b)(1) guidelines. A veto may result when EPA and the Corps disagree over how to apply the § 404(b)(1) guidelines, or over a project's impacts. This exposes a permit applicant to the possibility that an unexpressed difference of opinion between the Corps and EPA may endanger his or her permit application. Applicants often feel unfairly surprised by § 404(c) proceedings, even when EPA has commented while a permit is under review at the Corps. The fact that the veto is used to enforce EPA's interpretation of the § 404(b)(1) guidelines also makes it difficult to identify, in any meaningful fashion, the circumstances under which EPA might exercise § 404(c) authority.

As mentioned, there have been very few § 404(c) vetoes.185 However, the threat of a veto encourages the Corps to consider EPA's comments on a proposed permit and to make considerable effort to accommodate EPA's concerns. Some observers feel that EPA has become more willing to veto permits in recent years. A description of a few of the vetoes that have been litigated serves to illustrate the issues that can arise under § 404(c).

EPA's § 404(c) veto of a mall project in Attleboro, Massachusetts, received considerable publicity.186 In this case, the Pyramid Company proposed to develop a shopping mall on an 80-acre tract that contained 25 acres of wetlands. EPA and the Corps disagreed, among other things, on whether there were available practicable alternative sites and whether the applicant's mitigation proposal made the applicant's preferred site environmentally preferable to other alternatives. When the Corps released its notice of intent to issue a permit, EPA's Region I initiated § 404(c) proceedings. The developer's legal challenge to the initiation of the proceedings was dismissed as premature.187 After review by the RA and headquarters, EPA concluded that the permit should be denied because it would not comply with the § 404(b)(1) guidelines due to the availability of a practicable alternative site.

Pyramid challenged EPA's final § 404(c) decision in Bersani v. U.S. Environmental Protection Agency,188 alleging that there was no practicable alternative site available, and that EPA's § 404(c) authority was limited to a determination that the project would have an unacceptable adverse effect on the five resources enumerated in the statute. The Bersani court upheld EPA's decision, and the Second Circuit affirmed.189 The courts affirmed EPA's view that the available practicable alternatives must be measured by a market entry theory. This approach, which EPA articulated during the veto process, requires an applicant to assess all potential alternative sites for its project and demonstrate that nonwetland sites are not available, when it enters the market and plans its proposed project. The courts upheld the market entry standard as most consistent with the wetland protection features of EPA's § 404(b)(1) guidelines. The courts thus agreed that EPA had the authority to consider compliance with the § 404(b)(1) guidelines in exercising its § 404(c) authority.

EPA's § 404(c) veto of a James City County, Virginia, water project was also based on its view that less damaging alternatives were available. Applying the practicable alternatives test of the § 404(b)(1) guidelines, EPA vetoed the Corps' decision to grant the county a permit to create a water supply reservoir by damming Ware Creek and flooding adjacent wetlands and woodlands, which provided substantial wildlife habitat. The Corps concluded that the county should be granted the permit, because no agency, including EPA, had identified practicable alternatives to flooding 425 wetland acres required to create the reservoir, and the county had taken appropriate steps to mitigate the adverse impacts. EPA, however, suggested that alternative sources of water might be obtained either without any dam and reservoir, or by constructing several smaller impoundments instead of one large dam. EPA did not argue that [23 ELR 10297] these alternatives necessarily could be implemented, but rather concluded that there was insufficient information in the record to show that the alternatives were not available. In short, EPA vetoed the permit because it felt the applicant had the burden of proof to disprove the availability of practicable alternatives. However, EPA's veto did not survive judicial challenge.190

In James City County, Virginia v. U.S. Environmental Protection Agency, the court found that EPA had employed a presumption that there are alternatives, unless disproved by the applicant. The court held that this presumption was invalid under the circumstances, because the § 404(b)(1) guidelines establish that presumption only for projects that are not water dependent.191 A water supply reservoir, of course, is a water-dependent project. On appeal, the Fourth Circuit affirmed the district court, but based its decision on the lack of substantial evidence that there were practicable alternatives.192 The court remanded to allow EPA to consider alternative grounds for a veto, which had not been addressed, and in particular, whether the adverse environmental effects on wildlife alone justified the veto.193

On March 27, 1992, EPA issued its decision on remand, again vetoing the Corps' decision to issue the permit, this time based solely on adverse environmental effects.194 In its final determination, EPA described the extensive ecosystem values that are served by the wetlands that would be flooded by the proposed water project and maintained that its veto would protect both the wetlands and marshlands that the Chesapeake Bay depends on for fish habitat. With respect to the proposed project's purpose of satisfying the county's predicted shortage of water, EPA maintains that water supplies can and should be addressed regionally, rather than locally. EPA's decision notes that four municipalities and James City County have formed a regional water study group that has identified 31 regional solutions. This decision was challenged in court, and again reversed.195

The district court found that in its second veto, EPA neglected to properly consider James City County's need for water in evaluating the acceptability of the reservoir project. Since the § 404(c) regulations require consideration of filling on municipal water supplies,196 the court held that EPA could not veto a permit solely considering the environmental concerns of the filling. The court also found that the environmental data in the record did not support EPA's conclusion that the reservoir would impose significant adverse impacts.

In City of Alma v. United States,197 EPA's veto of the Lake Alma dam and impoundment project in Bacon County, Georgia, was upheld. This proposal, which called for developing a recreational lake, entailed almost two decades of environmental litigation, culminating in EPA's § 404(c) veto.198 After considering a number of EPA's prior positions, the court examined EPA's conclusion under § 404(c) that the proposed lake would have an unacceptable adverse impact on wildlife. The veto resulted from a disagreement between EPA and the Corps over the value of the parcel, filled or not filled, as wildlife habitat. The Corps felt that alternative wildlife values would be enhanced by the lake, while EPA put a greater value on the undisturbed wetland habitat. In upholding EPA, the court reviewed the veto decision by examining the sufficiency of the evidence on the record. The court explained that its role was to decide "whether the Agency considered relevant factors and articulated a satisfactory explanation for its decision."199 On review, therefore, EPA did not have to meet any enhanced burden to explain why it overruled contrary findings by the Corps, but merely had to explain its own decision. This, the court found EPA had done.200

The cases that address EPA's § 404(c) vetoes illustrate the uncertainties that permit applicants face under the administrative and judicial systems governing the § 404 program. The CWA's compromise enacted in 1972,201 which established EPA's § 404(c) oversight role, has resulted in great potential for lengthy disputes between EPA and the Corps at the expense of private project applicants. EPA has structured its § 404(c) veto role in a manner that deprives parties of predictability — in a given case, one cannot consult preexisting rules to ascertain whether a veto is likely. While the goals of the CWA may be advanced from the protections afforded by § 404(c), surely 20 years after enactment of the CWA the public should not be surprised each time a veto is invoked. Until a § 404(c) process is developed that provides all interested entities — the applicant, the Corps, EPA, and the public — with the certainty necessary to make plans, this aspect of the program will remain very controversial.

IV. Summary of Individual Permits

The individual permit application process is, in most instances, manageable and governed by clear regulatory standards. Major actions in wetlands, however, are subject to a multilayer administrative process, requiring compliance with the Corps' and EPA's regulations, consultation with many other governmental units, public participation, possible EISs, and sometimes a veto procedure. Many years of administering the process and litigating the results have illuminated the parameters of the major permit requirements. The process can be cumbersome and, where § 404(c) vetoes are involved, may be unpredictable. The best strategy for applicants, as well as other interested parties, is early and consistent communication with the Corps and EPA regarding project plans.

1. 16 U.S.C. §§ 661-666c.

2. 42 U.S.C. §§ 4321-4370c, ELR STAT. NEPA 001-014.

3. 16 U.S.C. §§ 1531-1544, ELR STAT. ESA 001-027.

4. 51 Fed. Reg. 41206 (1986).

5. 33 C.F.R. pts. 320, 323, 325-30 (1992).

6. See infra Part III (listing of the Corps' district offices).

7. 33 C.F.R. § 325.1(d) (1992).

8. Id. at § 325.1(d)(7).

9. See 33 C.F.R. §§ 325.1(d), 325.3(a).

10. Id. at § 325.1(d)(9).

11. Id. at § 325.2(d).

12. Id. at § 325.2(a)(1).

13. Id. at § 325.3(c). The regulations include the precise language for this paragraph.

14. Id. at § 325.2(a)(3).

15. 33 C.F.R. § 325.2(a)(3) (1992). See also Mall Properties, Inc. v. Marsh, 672 F. Supp. 561, 574-75, 18 ELR 20135, 20140 (D. Mass. 1987), appeal dismissed, 841 F.2d 440, 18 ELR 20829 (1st Cir. 1988) (developer was entitled to notice of objections raised by governor in meeting with the Corps' representatives).

16. 33 C.F.R. §§ 325.2(a)(4), 327.4(a) (1992).

17. Id. at § 327.4(b). See Buttrey v. United States, 690 F.2d 1170, 1176, 13 ELR 20085, 20087 (1982).

18. 817 F.2d 1070, 1073-74, 17 ELR 20657, 20659 (3d Cir. 1987).

19. 33 C.F.R. § 327.4 (1992). See Hough v. Marsh, 557 F. Supp. 74, 79-80, 13 ELR 20610, 20612-13 (D. Mass. 1982).

20. 33 C.F.R. § 327.4 (1992). See also 33 C.F.R. § 327.11.

21. 33 C.F.R. § 327.11 (1992).

22. Id. at § 327.4.

23. Id. at § 327.8.

24. See Buttrey v. United States, 690 F.2d at 1175, 13 ELR at 20087 (no right to trial-type hearing and the CWA does not trigger the trial-type hearing procedures in the Administrative Procedure Act); see also Shoreline Assocs. v. Marsh, 555 F. Supp. 169, 174-77, 13 ELR 20421, 20422-24 (D. Md. 1983); Nofelco Realty Corp. v. United States, 521 F. Supp. 458, 11 ELR 21090 (S.D.N.Y. 1981); National Wildlife Fed'n v. Marsh, 568 F. Supp. 985, 993, 13 ELR 20738, 20741 (D.D.C. 1983).

25. 33 C.F.R. § 327.8 (1992).

26. Id. at § 327.8(g).

27. Id. at § 327.4.

28. See Banker's Life & Casualty Co. v. Callaway, 530 F.2d 625, 634-35 (5th Cir. 1976), reh'g denied, 536 F.2d 1387 (5th Cir. 1976), cert. denied, 429 U.S. 1073 (1977).

29. 33 C.F.R. § 325.2(a)(6) (1992).

30. See infra Chapter 8, Judicial Review of § 404 Wetlands Actions.

31. 33 U.S.C. § 1344(q), ELR STAT. FWPCA 062.

32. Id. at § 1344(c), ELR STAT. FWPCA 062. This authority is addressed more fully infra section III.

33. 16 U.S.C. §§ 661-668cc; 16 U.S.C. §§ 1531-1544, ELR STAT. ESA 001-027.

34. 33 C.F.R. § 320.3 (1992).

35. See also RGL No. 92-1, Federal Agency Roles and Responsibilities, May 13, 1992 (expires Dec. 31, 1997), 57 Fed. Reg. 23574 (1992).

36. Memorandum of Agreement Between the Environmental Protection Agency and the Department of the Army, Concerning Clean Water Act Section 404(q) (Aug. 11, 1992) (Corps-EPA 404(q) MOA); Memorandum of Agreement Between the Department of Commerce and the Department of the Army, Concerning Clean Water Act Section 404(q) (Aug. 11, 1992) (Corps-NOAA 404(q) MOA); Memorandum of Agreement between the Department of the Interior and the Department of the Army, Concerning Clean Water Act Section 404(q) (Dec. 21, 1992) (Corps-FWS 404(q) MOA).

37. See EPA and FWS Sign New Section 404(q) MOAs With Army, NAT'L WETLANDS NEWSL. (Envtl. L. Inst.), Jan/Feb. 1986, at 2.

38. Part 1 of each interagency MOA listed supra note 36, contains these procedures and standards.

39. Each of the MOAs are essentially the same in terms of the process and time frames for elevation; the differences between the MOAs largely involve references to the statutory authority and the specific resource concerns of EPA, the FWS, and NOAA.

40. See, e.g., Corps-EPA 404(q) MOA supra note 36, at pt. 1, P3.

41. See MOAs supra note 36, at pt. IV, P1.

42. Corps-EPA MOAs supra note 36, at pt. IV, P1.

43. See MOAs supra note 36, at pt. III, P2.

44. 16 U.S.C. § 1456(c), ELR STAT. CZMA 011. See supra Part III, Chapter 13(VIII).

45. 16 U.S.C. §§ 1451-1464, ELR STAT. CZMA 1-15.

46. 33 C.F.R. §§ 320.3(b), 320.4(h) (1992).

47. RGL 92-3, Extension of Regulatory Guidance Letter (RGL) 86-10, Special Area Management Plans (SAMPs) (Aug. 19, 1992), 57 Fed. Reg. 45773 (1992).

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

49. 16 U.S.C. § 470f (1988).

50. 33 C.F.R. pt. 325, app. C, § 2a (1992).

51. 36 C.F.R. § 800.2(j) (1992).

52. Id.

53. 16 U.S.C. § 470f (1988). See discussion in Hough v. Marsh, 557 F. Supp. 74, 86-88, 13 ELR 20610, 20616-17 (D. Mass. 1982) (The Corps is required to follow procedural consultation requirements of the NHPA).

54. See 36 C.F.R. § 800.4(b).

55. 36 C.F.R. § 800.5(e)(2).

56. The DOI, which decides which properties gain a listing in the national register, has provided in its regulations:

Having complied with [the] procedural requirement[s] the federal agency may adopt any course of action it believes is appropriate. While the Advisory Council comments must be taken into account and integrated into the decisionmaking process, program decisions rest with the agency implementing the undertaking.

36 C.F.R. § 60.2(a).

57. 33 C.F.R. pt. 325, app. C. § 10(a) (1992).

58. 16 U.S.C. § 1536, ELR STAT. ESA 010.

59. See Letter from Major General Arthur E. Williams, Director of Civil Works, U.S. Army Corps of Engineers, to Hon. John Turner, Director, U.S. Fish and Wildlife Service (Nov. 27, 1991) [hereinafter ESA Correspondence].

60. See id. at 2. The permit area is defined as the immediate area and that area immediately affected by the permitted activity.

61. See, e.g., Riverside Irrigation Dist. v. Andrews, 758 F.2d 508, 15 ELR 20333 (10th Cir. 1985); Winnebago Tribe of Nebraska v. Ray, 621 F.2d 269, 10 ELR 20243 (8th Cir. 1980), cert. denied, 449 U.S. 836 (1980); and Save the Bay, Inc. v. U.S. Army Corps of Eng'rs, 610 F.2d 322, 10 ELR 20185 (5th Cir. 1980), cert. denied, 449 U.S. 900 (1980).

62. ESA Correspondence supra note 59, at 2.

63. 33 U.S.C. § 1362(3), ELR STAT. FWPCA 064, provides that:

The term "State" means a State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and the Trust Territory of the Pacific Islands.


64. 40 C.F.R. § 230.10(b) (1992). See also 33 C.F.R. § 320.4(d).

65. See also Hough v. Marsh, 557 F. Supp. 74, 85-86, 13 ELR 20610, 20615-16 (D. Mass. 1982) (reversing issuance of permit, in part, for failure of the Corps, as part of public interest review, to consider local laws affecting wetlands).

66. 57 Fed. Reg. 6591 (1992).

67. 33 C.F.R. § 326.3(e) (1992).

68. Id. at § 326.3(b).

69. Id. at § 326.3(c)(1).

70. Id. at § 326.3(e).

71. Id. at § 326.3(e)(1)(iv).

72. Id. at § 326.3.

73. See Quinones Lopez v. Coco Lagoon Dev. Corp., 562 F. Supp. 188, 13 ELR 20700 (D.P.R. 1983) (sustaining the issuance of an AFT permit, issued without public hearings or state coastal zone certificate); United States v. Alleyne, 454 F. Supp. 1164 (S.D.N.Y. 1978) (holding that an illegal discharge was entitled to evidentiary hearing on the issues of whether an AFT permit should be issued).

74. United States v. Cumberland Farms of Conn., Inc., 826 F.2d 1151, 17 ELR 21270 (1st Cir. 1987).

75. Id. at 1163, 17 ELR at 21276. See also 33 C.F.R. § 326.3(d)(1).

76. 33 U.S.C. § 1344(p), ELR STAT. FWPCA 062.

77. See Buttrey v. United States, 690 F.2d 1170, 1180, 13 ELR 20085, 20089 (5th Cir. 1982); Shoreline Assocs. v. Marsh, 555 F. Supp. 169, 172, 13 ELR 20421, 20422 (D. Md. 1983), aff'd, 725 F.2d 677, 14 ELR 20269 (4th Cir. 1984).

78. 45 Fed. Reg. 85336 (1980) (codified at 40 C.F.R. § 230.2).

79. 33 C.F.R. § 323.6.

80. 40 C.F.R. § 230.41 (1992).

81. Id. at § 230.3(q-1).

82. Id. at § 230.41(b).

83. Id. at § 230.10(a).

84. Id. at § 230.10(a)(3).

85. However, the § 404(b)(1) guidelines do not contain a presumption that practicable alternatives exist if the project is water dependent. See 40 C.F.R. § 230.10(a)(3). See also James City County, Va. v. U.S. Environmental Protection Agency, 758 F. Supp. 349, 21 ELR 20371 (E.D. Va. 1990), aff'd in part and remanded, 955 F.2d 254 (4th Cir. 1992).

86. 40 C.F.R. § 230.10(a)(3) (1992).

87. RGL 92-2, Water Dependency and Cranberry Production, 57 Fed. Reg. 32523 (1992).

88. Id.

89. The § 404(b)(1) guidelines define "practicable" as follows:

An alternative is practicable if it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes. If it is otherwise a practicable alternative, an area not presently owned by the applicant which could reasonably be obtained, utilized, expanded or managed in order to fulfill the basic purpose of the proposed activity may be considered.

40 C.F.R. § 230.10(a)(2).

90. See Bersani v. U.S. Environmental Protection Agency, 850 F.2d 36, 18 ELR 20874 (2d Cir. 1988), cert. denied, 109 S. Ct. 1556 (1989) (applicant for permit to build shopping mall on 25 acres of wetlands in southeast Massachusetts, was denied its permit (pursuant to EPA's § 404(c) veto authority) on "market entry" standard, because there was a practicable alternative available to it at the time it first visited the area and considered purchasing the property. Significantly, at the time it finally purchased property, there were no alternatives available).

91. See Louisiana Wildlife Fed'n, Inc. v. York, 603 F. Supp. 518, 527, 15 ELR 20620, 20624 (W.D. La.1984), aff'd in part and vacated in part, 761 F.2d 1044, 15 ELR 20614 (5th Cir. 1985) (classification of an activity as nonwater dependent does not bar issuance of a permit, but necessitates a more persuasive showing than otherwise concerning the lack of alternatives.). See also Hough v. Marsh, 557 F. Supp. 74, 83-84, 13 ELR 20610, 20614-15 (D. Mass. 1982) (applicant must "clearly demonstrate" that no nonwetland alternative exists).

92. But see Borough of Ridgefield v. U.S. Army Corps of Eng'rs, 20 ELR 21387, 21393 (D.N.J. July 2, 1990) (failure of permit objector to submit suggested alternative sites and supporting data during permit comment period precluded objector from raising such alternatives before the court).

93. For example, an applicant may define the project purpose narrowly so as to fit only one property, such as for the construction of a marina-restaurant-hotel complex near a particular waterway. The Corps may define the project purpose very broadly, and separately, as provision of marina services in the community, and a restaurant and a hotel. Under the applicant's description, all parts are integrated and alternatives must meet all of the integrated criteria; under the Corps' description, there would be many alternatives for provision of the same basic purposes.

94. See, e.g., Department of the Army, Permit Elevation, Plantation Landing Resort, Inc. (Apr. 21, 1989); U.S. Army Corps of Engineers, Headquarters Findings, Hartz Mountain 404(q) Elevation (July 25, 1989); Department of the Army, Permit Elevation, Old Cutler Bay Associates (Sept. 13, 1990); U.S. Army Corps of Engineers, Headquarters Review and Findings, Twisted Oaks Joint Venture Permit 404(q) Elevation (Mar. 15, 1991).

95. 761 F.2d 1044, 1048, 15 ELR 20614, 20616.

96. Id. See also National Audubon Soc'y v. Hartz Mountain Dev. Corp., 14 ELR 20724, 20730-32 (D.N.J. 1983) (alternativesmust meet project proponent's objectives).

97. See Friends of the Earth v. Hintz, 800 F.2d 822, 833, 17 ELR 20030, 20036 (9th Cir. 1986).

98. See Shoreline Assocs. v. Marsh, 555 F. Supp. 169, 13 ELR 20421 (D. Md. 1983), aff'd, 725 F.2d 677, 14 ELR 20269 (4th Cir. 1984) (the Corps' rejection of developer's proposal to locate townhouses near boat houses and launching facility upheld, because alternative site existed for townhouses, and the boat houses and launching facilities were held to be merely "incidental" to the townhouse project).

99. See Sylvester v. U.S. Army Corps of Eng'rs, 882 F.2d 407, 409, 19 ELR 21348, 21348-49 (9th Cir. 1989) (golf course held to be integral part of alpine resort development for practicable alternatives analysis).

100. See id. See also Friends of the Earth v. Hintz, 800 F.2d 822, 833-34, 17 ELR 20030, 20036 (9th Cir. 1986).

101. Friends of the Earth v. Hall, 693 F. Supp. 904, 946-47, 19 ELR 20298, 20315-16 (W.D. Wash. 1988).

102. 40 C.F.R. § 230.10(a)(2) (1992).

103. The Corps and EPA allow a less demanding practicable alternatives test for power plant modifications required by the CAA's Amendments of 1990, since the applicant's choices are restricted by that law. See RGL 92-5, Alternatives Analysis Under the Section 404(b)(1) Guidelines for Projects Subject to Modification Under the Clean Air Act, 57 Fed. Reg. 62312 (1992).

104. 51 Fed. Reg. 22977 (1986) (EPA vetoed a site in part because the Corps considered an applicant's mitigation proposal, which resulted in a net increase of wetland acreage, as the Corps' basis for finding that other alternatives were not less damaging).

105. See, e.g., 33 C.F.R. §§ 320.4(b), 325.4(a), and 51 Fed. Reg. 41208 (1986).

106. 40 C.F.R. § 230.10(c) (1992).

107. Id. at § 230.11(a).

108. Id. at § 230.11(b).

109. Id. at § 230.11(c).

110. Id. at § 230.11(d).

111. Id. at § 230.11(e).

112. Id. at § 230.11(h).

113. The regulations describe these potential impacts in greater detail, with examples, to assist permit writers. See 40 C.F.R. pts. C-F.

114. 40 C.F.R. § 230.10(c) (1992).

115. Id. at § 230.10(d).

116. 33 C.F.R. § 325.4(a)(3) (1992). The Corps may require the applicant to post a bond to assure satisfactory completion of any required permit condition, including mitigation. 33 C.F.R. § 325.4(d). See also 33 C.F.R. § 320.4(r) (mitigation as part of public interest review).

117. 40 C.F.R. § 1508.20 (1992).

118. The FWS has a mitigation policy as well. See 46 Fed. Reg. 7644-63 (1981).

119. Memorandum of Agreement Between the U.S. Environmental Protection Agency and U.S. Department of the Army, Determination of Mitigation Under the Clean Water Act § 404(b)(1) Guidelines (effective Feb. 7, 1990) [hereinafter Mitigation MOA]. A lawsuit challenging the issuance of the Mitigation MOA for not complying with the rulemaking procedures of the Administrative Procedure Act was dismissed as not ripe for judicial review. See Municipality of Anchorage v. United States, 21 ELR 20119 (D. Alaska 1990).

120. Mitigation MOA, supra note 119, at pt. II(B).

121. 57 Fed. Reg. 52716 (1992).

122. Id.

123. Id.

124. Id. at 52717.

125. Mitigation MOA, supra note 119.

126. White House Wetlands Press Release, Fact Sheet: Protecting America's Wetlands (Aug. 9, 1991) (for mention of the mitigation banking system).

127. Intermodal Surface Transportation Efficiency Act of 1991, Pub. L. No. 102-240, 105 Stat. 1914 (1991).

128. See generally Focus Issue: Wetland Mitigation Banking, NAT'L WETLANDS NEWSL. (Envtl. L. Inst.), Jan./Feb. 1992.

129. 33 C.F.R. § 320.4(a) (1992) (emphasis added).

130. Id.

131. With regard to economics, the regulations provide:

When private enterprise makes application for a permit, it will generally be assumed that appropriate economic evaluations have been completed, the proposal is economically viable, and is needed in the marketplace. However, the district engineer in appropriate cases, may make an independent review of the need for the project from the perspective of the overall public interest.

33 C.F.R. § 320.4(q) (emphasis added).

132. The weight of each of these factors is to be determined by its importance and relevance for each proposal. 33 C.F.R. § 320.4(a)(3) (1992). See Shoreline Assocs. v. Marsh, 555 F. Supp. 169, 178, 13 ELR 20421 (D. Md. 1983).

133. 33 C.F.R. § 320.4(a) (1992).

134. 672 F. Supp. 561, 18 ELR 20135 (D. Mass. 1987), appeal dismissed, 841 F.2d 440, 18 ELR 20829 (1st Cir. 1988).

135. Id. at 672 F. Supp. at 565, 18 ELR at20136.

136. Id. at 672 F. Supp. at 566, 18 ELR at 20136.

137. Id. at 672 F. Supp. at 566-68, 18 ELR at 20136-37. The court further held that NEPA does not authorize the Corps' analysis of the socioeconomic impacts in this case. Id. 672 F. Supp. at 571, 18 ELR at 20139. See Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 773, 774, 13 ELR 20515 (1983) ("[t]o determine whether [NEPA] requires consideration of a particular effect [e.g., psychological or economic], we must look at the relationship between that effect and the change in the physical environment caused by the … federal action…." (Emphasis added.) NEPA requires a reasonably close causal relationship between a change in the physical environment and the effect at issue.). Compare Hough v. Marsh, 557 F. Supp. 74, 86, 13 ELR 20610 (D. Mass. 1982) (the Corps must consider economic impacts of proposed structure that would block scenic view).

138. North Carolina v. Hudson, 665 F. Supp. 428, 17 ELR 21260 (E.D.N.C. 1987).

139. 33 C.F.R. § 320.4(b)(1) (1992). The regulations further provide that:

Wetlands that are considered to perform functions important to the public interest include:

i. Wetlands which serve significant natural biological functions, including food chain production, general habitat and nesting, spawning, rearing, and resting sites for aquatic or land species;

ii. Wetlands set aside for study of the aquatic environment or as sanctuaries or refuges;

iii. Wetlands the destruction or alteration of which would affect detrimentally natural drainage characteristics, sedimentation patterns, salinity distribution, flushing characteristics, current patterns, or other environmental characteristics;

iv. Wetlands which are significant in shielding other areas from wave action, erosion or storm damage. Such wetlands are often associated with barrier beaches, islands, reefs, and bars;

v. Wetlands which serve as valuable storage areas for storm and floodwaters;

vi. Wetlands which are groundwater discharge areas that maintain minimum base flows important to aquatic resources and those which are prime natural recharge areas;

vii. Wetlands which serve significant water purification functions; and

viii. Wetlands which are unique in nature or scarce in quantity to the region or local area.

Id. at § 320.4(b)(2) (emphasis added). Compare 40 C.F.R. § 230.41 (wetlands as special aquatic sites).

140. 33 C.F.R. § 320.4(b)(4) (1992). See Shoreline Assocs. v. Marsh, 555 F. Supp. 169, 179, 13 ELR 20421, 20425 (the Corps upheld in denying permit based on finding that wetlands were important within meaning of 33 C.F.R. § 320.4(b)(2)).

141. Id. at § 320.4(c)-(e), (i).

142. 42 U.S.C. §§ 4321-4370a, ELR STAT. NEPA 001-012.

143. 40 C.F.R. §§ 1500-1517 (1992).

144. 33 C.F.R. pt. 230, 53 Fed. Reg. 3127 (1988); 33 C.F.R. pt. 325, app. B.

145. 42 U.S.C. § 4332, ELR STAT. NEPA 003.

146. 33 C.F.R. pt. 325, app. B, § 7a (1992).

147. The Corps processes approximately 10,000 § 404 permits per year, but, on average, requires the preparation of EISs for less than 20 of those permits. Telephone conversation with Lance Wood, U.S. Army Corps of Eng'rs, Office of Chief Counsel (Dec. 9, 1992).

148. 33 C.F.R. pt. 325, app. B, § 7 (1992).

149. Id.

150. See River Rd. Alliance, Inc. v. U.S. Army Corps of Eng'rs, 764 F.2d 445, 449, 15 ELR 20518, 20519 (7th Cir. 1985) citing Wisconsin v. Weinberger, 745 F.2d 412, 417, 14 ELR 20744, 20746 (7th Cir. 1984); Sierra Club v. U.S. Dep't of Transp., 753 F.2d 120, 126 (D.C. Cir. 1985).

151. See Louisiana v. Lee, 758 F.2d 1081, 1083, 15 ELR 20609, 20610 (5th Cir. 1985), cert. denied, 475 U.S. 1044 (1986); Jones v. Gordon, 792 F.2d 821, 827, 16 ELR 20920, 20922-23 (9th Cir. 1986); Sierra Club v. U.S. Army Corps of Eng'rs, 701 F.2d 1011, 1030, 13 ELR 20326, 20335 (2d Cir. 1983); National Wildlife Fed'n v. Marsh, 721 F.2d 767, 782, 14 ELR 20172, 20179-80 (11th Cir. 1983); Township of Lower Alloways Creek v. Public Serv. Elec. & Gas Co., 687 F.2d 732, 742, 12 ELR 21029, 21030 (3d Cir. 1982). However, the D.C. Circuit joins the Seventh Circuit in applying an abuse of discretion standard. See Sierra Club v. U.S. Dep't of Transp., 753 F.2d 120, 126 (D.C. Cir. 1985).

152. River Rd. Alliance, supra note 150, at 449, 15 ELR at 20519.

153. Mississippi ex rel. Moore v. Marsh, 710 F. Supp. 1488, 1503, 19 ELR 21266, 21273-74 (S.D. Miss. 1989), citing Fritiofson v. Alexander, 772 F.2d 1225, 1239, 15 ELR 21070, 21077 (5th Cir. 1985). See also People ex rel. Van de Kamp v. Marsh, 687 F. Supp. 495, 499 (N.D. Cal. 1988) (decision on part of the Corps not to prepare EIS prior to issuing permit to fill 180 acres of wetlands was unreasonable, where the Corps merely relied on other agencies' evaluations of project's cumulative effect on wetlands and wildlife, and did not discuss cumulative impacts on air and water quality, or noise pollution in its decision document.).

154. River Rd. Alliance, supra note 150, at 449, 15 ELR at 20519.

155. See Oklahoma Wildlife Fed'n v. U.S. Army Corps of Eng'rs, 681 F. Supp. 1470, 1489-90, 18 ELR 21357, 21367 (N.D. Okla. 1988) (appropriate mitigating conditions eliminated the need for an EIS for project to transfer reservoir water from one lake to another for municipal and industrial water purposes). See also Park County Resource Council, Inc. v. U.S. Dep't of Agric., 817 F.2d 609, 17 ELR 20851 (10th Cir. 1987); Friends of the Earth v. Hintz, 800 F.2d 822, 836-38, 17 ELR 20030, 20037-39 (9th Cir. 1986); Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 15 ELR 20455 (9th Cir. 1985); Preservation Coalition, Inc. v. Pierce, 667 F.2d 851, 12 ELR 20410 (9th Cir. 1982); Cabinet Mountains Wilderness v. Peterson, 685 F.2d 678, 12 ELR 21058 (D.C. Cir. 1982); Environmental Defense Fund v. Andrus, 619 F.2d 1368, 1376, 10 ELR 20252, 20255 (10th Cir. 1980).

156. See the Corps' RGL No. 87-5, Environmental Impact Statement (EIS) Costs That Can Be Paid by the Applicant (May 28, 1987) (expired).

157. See Van Abbema v. Fornell, 807 F.2d 633, 642, 17 ELR 20429, 20434 (7th Cir. 1986); Sierra Club v. Sigler, 695 F.2d 957, 13 ELR 20210 (5th Cir. 1983); Sierra Club v. Marsh, 701 F. Supp. 886, 912, 19 ELR 20692, 20702 (D. Me. 1988); Lake Erie Alliance for the Protection of the Coastal Quarter v. U.S. Army Corps of Eng'rs, 526 F. Supp. 1063, 1072-73 (W.D. Pa. 1981), aff'd, 707 F.2d 1392 (3d Cir. 1983), cert. denied, 464 U.S. 915 (1983); Missouri Coalition for Environment v. U.S. Army Corps of Eng'rs, 678 F. Supp. 790, 802 (E.D. Mo. 1988).

158. 40 C.F.R. pt. 1504 (1992).

159. 33 C.F.R. pt. 325, app. B, § 7(b) (1992).

160. 871 F.2d 817, 821 (9th Cir. 1989). This decision was amended at 884 F.2d 394, 19 ELR 20652.

161. 871 F.2d at 823. See also Winnebago Tribe of Nebraska v. Ray, 621 F.2d 269, 272-73, 10 ELR 20243, 20244-45 (8th Cir. 1980) (upheld the Corps' decision to consider, in its NEPA analysis, only the 1.25 miles of river crossing of a 67-mile power line; the Corps did not have sufficient responsibility for entire project); Save the Bay, Inc. v. U.S. Army Corps of Eng'rs, 610 F.2d 322, 326-27, 10 ELR 20185, 20186-87 (5th Cir. 1980) (the Corps' decision to limit NEPA's analysis to 24-inch outfall pipe and not to expand to cover entire titanium dioxide manufacturing facility upheld).

162. 40 C.F.R. § 1502.4 (1992). But See Hudson River Sloop Clearwater, Inc. v. Department of the Navy, 836 F.2d 760, 18 ELR 20444 (2d Cir. 1988).

163. See National Audubon Soc'y v. Hartz Mountain Dev. Corp., 14 ELR 20724 (D.N.J. 1983).

164. 33 C.F.R. pt. 325, app. B (1992).

165. See Friends of the Earth v. Hall, 693 F. Supp. 904, 19 ELR 20298 (W.D. Wash. 1988). See also Sierra Club v. Sigler, 695 F.2d 957, 13 ELR 20210 (5th Cir. 1983) (failure of EIS to fully disclose and analyze costs of such activities sufficiently tainted the Corps' permit decision to require reversal). Compare Sierra Club v. U.S. Army Corps of Eng'rs, 701 F.2d 1011, 1029, 13 ELR 20326, 20334-35 (2d Cir. 1983) (court may not rule EIS inadequate if agency has made adequate compilation of relevant information, has analyzed it reasonably, has not ignored pertinent data, and has made disclosure to public).

166. See Louisiana Wildlife Fed'n v. York, 761 F.2d 1044, 1051, 15 ELR 20614, 20617 (5th Cir. 1985) (supplemental EIS was required).

167. Id. at 1052, 15 ELR at 20617-18, citing Wisconsin v. Weinberger, 745 F.2d 412, 421, 14 ELR 20744, 20748.

168. Section 404(c) provides in full:

The Administrator is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site, and he is authorized to deny or restrict the use of an defined area for specification (including the withdrawal of specification) as a disposal site, whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas. Before making such determination, the Administrator shall consult with the Secretary. The Administrator shall set forth in writing and make public his findings and his reasons for making any determination under this subsection.

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

169. 40 C.F.R. § 231.3 (1992).

170. EPA's advanced identification program, 40 C.F.R. § 230.80, is not an exercise of § 404(c) veto power. See supra Chapter 2(II)(B).

171. 40 C.F.R. § 231.2(e) (1992).

172. Id.

173. 40 C.F.R. § 231.3(a) (1992). See Newport Galleria Group v. Deland, 618 F. Supp. 1179, 16 ELR 20033 (D.D.C. 1985) (initiation of § 404(c) proceedings is not final agency action and therefore not subject to judicial review).

174. 40 C.F.R. § 231.3(a) (1992).

175. Id. at § 231.3(a)(2).

176. A note accompanying 40 C.F.R. § 231.3(a)(2), provides that it is anticipated that the procedures of the § 404 referral process (see discussion infra Chapter 6(I)(C) will normally be exhausted prior to any final decision on whether to initiate a § 404(c) proceeding.

177. 40 C.F.R. § 231.3(d) (1992).

178. Id. at § 231.4(a).

179. Id. at § 231.4(b).

180. These time periods may be extended by EPA. See Bersani v. Deland, 640 F. Supp. 716, 16 ELR 20795 (D. Mass. 1986).

181. 40 C.F.R. § 231.5 (1992).

182. Id. at § 231.6.

183. Id.

184. Id.

185. As of 1991, EPA had vetoed the following 11 projects: (1) North Miami landfill, Fla. (Jan. 19, 1981); (2) M. A. Norden site, Mobile, Ala. (June 15, 1984); (3) Jack Maybank site, Jehosse Island, S.C. (Apr. 5, 1985); (4) Bayou Aux Carpes site, Jefferson Parish, La. (Oct. 16, 1985); (5) Sweedens Swamp site, Attleboro, Mass. (May 13, 1986); (6) Russo Development Corporation site, Hackensack Meadows, N.J. (Mar. 21, 1988); (7) Henry Rem Estates site, East Everglades, Fla. (June 15, 1988); (8) Lake Alma, Macon County, Ga. (Dec. 16, 1988); (9) Ware Creek, James City County, Va. (July 10, 1989); (10) Two Forks Dam & Reservoir, Denver, Colo. (Nov. 23, 1990); and (11) Big River Reservoir, R.I. (Mar. 1, 1990).

186. The veto is commonly referred to as either the Attleboro Mall or Sweeden's Swamp veto.

187. Newport Galleria Group v. Deland, 618 F. Supp. 1179, 16 ELR 20033 (D.D.C. 1985). Pyramid tried to argue that EPA was arbitrary and capricious in initiating a veto, because there was no basis for concluding that "an unacceptable adverse effect" could result from the issuance of the permit where the applicant's mitigation plan would result in a net improvement for the aquatic ecosystem. The developer's defense had to wait until after EPA completed its process.

188. 674 F. Supp. 405, 18 ELR 20001 (N.D.N.Y. 1987).

189. Bersani v. Robichaud, 850 F.2d 36 (2d Cir. 1988), cert. denied, 109 S. Ct. 1556 (1988).

190. James City County, Va. v. U.S. Environmental Protection Agency, 758 F. Supp. 348, 21 ELR 20371 (E.D. Va. 1990).

191. Id. at 350-51, 21 ELR at 20372-73. See 40 C.F.R. § 230.10(a)(3).

192. 955 F.2d 254, 22 ELR 20566 (4th Cir. 1991).

193. Id. at 260, 22 ELR at 20569 (4th Cir. 1991).

194. Final Determination on Remand of the U.S. Environmental Protection Agency's Assistant Administrator for Water Pursuant to Section 404(c) of the Clean Water Act Concerning the Proposed Ware Creek Water Supply Impoundment, James City County, Virginia, March 27, 1992.

195. James City County v. EPA, No. 89-156-NN (E.D. Va. Aug. 5, 1992) (memorandum op.).

196. 40 C.F.R. § 231.1(a) (1992).

197. 744 F. Supp. 1546, 21 ELR 20226 (S.D. Ga. 1990) (§ 404(c) litigation).

198. National Wildlife Fed'n v. Marsh, 721 F.2d 767 (11th Cir. 1983) (NEPA litigation).

199. City of Alma, supra note 197, at 1562, 21 ELR at 20233-34.

200. Other EPA vetoes were upheld in Creppel v. U.S. Army Corps of Eng'rs, 19 ELR 20134 (E.D. La. 1988) and Russo Dev. Corp. v. Reilly, 20 ELR 20938 (D.N.J. 1990) (veto of an after-the-fact permit application).

201. See supra Chapter 1(III).

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