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WWRC 86-05o
The Role of the 404 Program in Riparian Wetland Protection

Historical Perspective

The 404 permit program is the most expansive attempt by the U.S. Congress to regulate dredging and filling activities in the nation's waters. The first program of this type was authorized in 1899 when Congress passed the River and Harbor Act This act protects interstate navigation and the navigable capacity of American rivers and haibors for commercial activities. The waters regulated by this statute are those subject to the ebb and flow of the tide shoreward to their mean high water mark and/or waters that are, ever have been, or ever could be used for interstate or foreign commerce. Among the activities regulated by the act are the construction of dams, dikes, piers, breakwaters, bulkheads, revetments, navigational aides, and on-shore facilities which could impact navigable capacity. The United States Army Corps of Engineers (COE) was given the responsibility of administering the permit program established pursuant to Sections 9, 10 and 13 of the River and Harbor Act.

It was not until the explosion of environmental consciousness in the late 1960s that environmental factors were considered in this Corps of Engineers permit process. In 1968, the Corps of Engineers revised its policy with respect to the review of permit applications. The new policy allowed other factors, in addition to navigation, to be included in the permit process. These additional factors included fish and wildlife, soil and water conservation, pollution, aesthetics, ecology, and general public interest concerns. The National Environmental Policy Act of 1969 also required that all federal agencies give full consideration to environmental concerns.

In 1970, the Corps of Engineers expanded its operating regulations to require a public interest review on all activities landward of the established harbor lines. The harbor line was usually construed to be the seaward edge of the piers and bulkheads that make up navigational and commercial facilities.

Congress, recognizing that adverse water quality impacts were resulting from uncontrolled dredging and filling in all the nation's waters, strengthened the role of the federal government in regulating these activities on October 18, 1972 with the passage of the Water Pollution Control Act (P.L. 92-500). A significant cause of concern was the loss of wetlands in the United States, which has been estimated to be as much as 50% of the total which existed prior to the colonization of North America by European peoples (Council on Environmental Quality, 1978).

Swift and Barclay (1980) concur with this appraisal and further state that most remaining riparian habitats in the contiguous 48 stales have been seriously affected by man's activities. P.L. 92-500 was enacted with the announced purpose of restoring and maintaining the chemical, physical and biological integrity of the nation's waters. Section 301 of the Water Pollution Control Act prohibits the discharge, from any discemable conveyances (i.e. point sources), of pollutants into the navigable waters of the United States unless the discharge is in compliance with 402 or 404 of this Act According to Section 502(6) of the Act, dredged spoils or fill material are considered to be pollutants capable of causing pollution of the waters of the United States. In 1977 Congress amended the Water Pollution Control Act and strengthened the provisions of Section 404. The amended Act (P.L. 95-217) is commonly referred to as the Clean Water Act (CWA).

The provisions of the Clean Water Act requiring the U.S. Army Crops of Engineers to issue permits for discharges of dredged or fill materials into waters of the United States are commonly referred to as the 404 Permit Program. Section 404 establishes a permit system to regulate these discharges and authorizes the Secretary of the Army to issue permits for the disposal of dredged or fill materials into the navigable waters of the United States. According to Thompson (1977), the intent of Congress was to define navigable waters to mean any waters of the United States (i.e. any place where water normally flows). This permit system is currently administered by the U.S. Army Corps of Engineers with environmental guidelines developed by the U.S. Environmental Protection Agency (EPA).

The regulatory program authorized by Section 404 has been extensively litigated in the courts (Want, 1984). The statutory protection afforded wetlands, stream channels and shorelines has generated considerable passion within the regulated community which has generally been opposed to the program. Objections raised by dissatisfied permit applicants have focused on perceived government interference with the rights of private property owners, the jurisdictional limits of the Corps to regulate dredging and filling activities in all waters or the United States and costs suffered as a result of program processing, delays, modifications and lost opportunities (Congress of the United States, Office of Technology Assessment 1984).

Lawsuits brought by environmental groups have generally questioned the amount of environmental protection given waters of the United States by the Corps. The adequacy of regulations promulgated by the Corps to enforce the provisions of the Clean Water Act have been frequently challenged in the courts. The court battles have, nearly unanimously, strengthened the role of the federal government in protecting stream channels, shorelines and wetlands. There has been much controversy regarding the limits of Corps jurisdiction over waters in the United States, and the issue is still being argued. Virtually all waters, including wetlands, are potentially regulated by the Section 404 Program. The Corps also has jurisdiction over man-made wetlands provided they were not created by the Corps (Track 12, Inc. vs. District Engineer, U.S. Army Corps of Engineers). The level of protection afforded isolated wetlands and streams above the headwaters is less than that given to other waters of the United States and wetlands contiguous or adjacent to them. The headwaters are defined as "the point on a nontidal stream above which the average annual flow is less than five cubic feet per second." The definition of wetlands which is used by the Corps, and was recently upheld by the U.S. Supreme Court in a historic 9-0 decision (United States vs. Riverside Bayview Homes), is "Those lands that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal conditions do support, a prevalence of vegetation typically adapted to life in saturated soil conditions." This definition of wetlands is broad enough to include most riparian zones in Wyoming. Some riparian habitats, especially those on ephemeral drainages, would not be classified as wetlands using either the definition of the Corps of Engineers or the U.S. Fish and Wildlife Service's system (Cowardin 1979). Riparian wetlands are classified as either riverine (emergent non-persistent wetiand) or palustrine (emergent persistent or scrub-shrub wetlands ) (Cowardin 1979).

In 1974, following the enactment of the Water Pollution Control Act, the Corps of Engineers promulgated regulations pursuant to Section 404 that limited the 404 permit program to the same waters regulated under the River and Harbor Act of 1899. The Natural Resources Defense Council and the National Wildlife Federation went to court challenging this limitation as being inconsistent with the intent of Congress (NRDC, et al. vs. Callaway). On March 27, 1975, the United States District Court for the District of Columbia ordered the Corps of Engineers to rescind that part of the 404 regulations "which limits the jurisdiction of the Corpsó to other than (all) the waters of the United States." Numerous subsequent legal decisions have since upheld this challenge by finding that it was not the intent of Congress to restrict the definition of navigable waters to the definition established in the River and Harbor Act of 1899 (Rosenbaum 1979).

The United States District Court (Western District of Louisiana, Alexandria Division) in the case of "the Avoyelles Sportsman's League, Inc. et al. vs. Clifford L. Alexander, et al." on March 12, 1981 found, in regard to the intended scope and coverage of the 404 program, that the:

"Congress was acutely aware...in drafting Section 502(7) of the Federal Water Pollution Control Act (now CWA), (and) deliberately moved away from the earlier restrictive definitions of navigable waters. The conferees fully intended that the term 'navigable waters' be given the broadest possible constitutional interpretation unencumbered by agency determinations which have been made or may be made for administrative purposes."

Although section 101(a)(l) of the Clean Water Act refers to the discharge of pollutants in the navigable waters, it is clear that Congress was not referring to navigable waters in the usual physical sense. In fact, the statutory definition mentions no physical characteristics such as width, depth, volume or flow. It mentions none of the characteristics normally associated with navigability such as ebb and flow of tide or highwater mark or low water mark. The CWA defines navigable waters in terms consistent with Congress' stated objective to restore and maintain the chemical, physical and biological integrity of the nation's waters. The report of the House Committee on Public Worics which accompanied the House bill defined integrity to mean a condition in which the natural structure and function of ecosystems is maintained... In enacting the 1972 Amendments to the Federal Water Pollution Control Act (now CWA), Congress intended to extend the Act's jurisdiction to the Constitutional limit.

Section 404 offers the most comprehensive statutory protection to the nation's waters from dredging and filling activities, however, some activities are not specifically regulated. Dredging is only questionably covered by the provisions of the Clean Water Act (Want, 1984). The Corps program exempts dredging if the dredged materials are removed by equipment that does not enter the water body (i.e. draglines, backhoes, etc.) and the dredged spoils are deposited above the ordinary high water mark. A regulatory guidance letter of the U.S. Army Corps of Engineers (1981) states that the Corps is not authorized by the Clean Water Act to regulate "De minimis discharge occurring during normal dredging operations, such as drippings from a dragline bucket" However, dredging may result in water quality standards violations which are regulated by the Wyoming Department of Environmental Quality.

The regulatory program authorized by section 404 will, undoubtedly, continue to be refined in the courts and the federal agencies charged with program administration will be forced to revise their regulations to reflect court rulings. Congress may, in the future, choose to clarify the enabling legislation. Reauthorization of the Clean Water Act is presently being debated by Congress and bills have been passed in the House and Senate. The two bills contain no significant changes to section 404. It is the opinion of this author that significant weakening of the dredge and fill permit program is unlikely. Environmental advocacy groups have clearly made a strong 404 program a priority issue and will continually monitor and challenge any perceived relaxation of program requirements. Want (1984) and Nagle (1985) present excellent papers addressing the legal impacts of the 404 program and are highly recommended for those desiring additional information.

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