Section 404 Permit Program Survives Legal Challenges, Faces Congressional and Administrative Review

Federal jurisdiction over and protection of the nation's wetlands and navigable waters, long a source of spirited litigation, continues to give rise to litigation involving knotty legal issues and heated legislative debate. The large number of decisions to have appeared in recent issues of the Reporter show, not surprisingly, continued controversy over jurisdictional issues. Avoyelles Sportsmen's League v. Alexander¹ adds an important dimension to the long line of cases addressing the permitting authority of the Army Corps of Engineers under the Federal Water Pollution Control Act (FWPCA). A more fundamental challenge tothe Corps' authority was raised in Deltona Corp. v. United States,² in which plaintiffs claimed that the Corps' denial of dredge and fill permits constituted a taking of their property in violation of the Fifth Amendment. While the United States Court of Claims found that a permit denial might constitute a taking in specific cases, the mere diminution in the value of the litigants' property did not constitute a taking. Perhaps equally significant implications flow from the claims of frustrated permit applicants that they have a right to more formal administrative procedures. Two district courts³ have held that applicants for dredge and fill permits are not entitled to formal adjudicatory proceedings.A more authoritative resolution of this difficult issue must await a pending decision of the Fifth Circuit Court of Appeals.

The § 404 Program

The Corps of Engineers' authority to regulate the discharge of dredge and fill materials into navigable waters of the United States can be traced to the Rivers and Harbors Act of 1899.⁴ Section 9 of the 1899 Act prohibits the construction of bridges and other structures over navigable waters without the consent of the Corps,⁵ § 10 prohibits the building of any structure in or over any navigable water without Corps approval,⁶ and § 13 prohibits the deposit of "any refuse matter of any kind" without a permit issued by the Corps.⁷ In the 1972 Amendments to the FWPCA,⁸ Congress expanded the Corps' role. Section 301 prohibits the discharge of pollutants from point sources into "navigable waters' without either a national pollutant discharge elimination system (NPDES) permit issued under § 402 or a § 404 permit.⁹ Under the latter provision, the Corps is authorized to issue permits, "after notice and opportunity for public hearings," for the discharge of dredge and fill material into the navigable waters of the United States.¹⁰ While permits are still issued under § 10 of the 1899 Act, permits are no longer issued under § 13.¹¹

The Corps evaluates § 404 permit applications and specifies disposal sites according to guidelines issued by the Environmental Protection Agency (EPA).¹² The guidelines are notable for the special emphasis they place on the preservation of wetlands:

From a national perspective, the degradation or destruction of special aquatic sites, such as filling operations in wetlands, is considered to be among the most severe environmental impacts covered by these Guidelines.¹³

The EPA Administrator was also given authority to prohibit or restrict the use of any area as a disposal site if the discharge of fill material will adversely affect municipal water supplies, or fishery, wildlife, or recreational areas.¹⁴ In addition, permit applications must be reviewed by the Fish and Wildlife Service.¹⁵ Violations of § 301, i.e. discharging without a permit, can result in civil and criminal penalties or injunctive relief, including restoration of the area to its original condition.¹⁶

[11 ELR 10234]

In 1977 Congress created a number of exemptions from the § 404 permit requirement.¹⁷ The discharge of dredge or fill material in connection with normal agriculture, silviculture, and ranching activites are now exempt from § 404.¹⁸ Permit-issuing authority for dredge and fill activities in certain waters may be transferred to states administering permit programs approved by the EPA Administrator in consultation with the Corps.¹⁹ EPA retains supervisory authority over state permit programs and can veto particular permits or withdraw approval of entire programs if not administered in accordance with statutory requirements.²⁰

Of major importance is the exemption from both the federal and state permit programs for all congressionally-authorized federal projects.²¹ However, § 404(r) requires that an environmental impact statement (EIS) for the project be submitted to Congress prior to the actual discharge of material or authorization or appropriation of funds.²²

Until 1968, the Corps administered the 1899 Act only to protect navigation and the navigable capacity of the nation's waters.²³ In that year, the Corps changed its policies for reviewing permits issued under the Act to include the consideration of "fish and wildlife, conservation, pollution, aesthetics, ecology, and the general public interest."²⁴ This "public interest review" policy was upheld in 1970 by the Fifth Circuit. In Zabel v. Tabb,²⁵ the district court had ruled that the Corps had improperly withheld a dredge and fill permit for a landfill project for the construction of a trailer park. It found that the Corps had no discretionary authority to withhold a permit where the project was found not to interfere with navigation. On appeal, the Fifth Circuit reversed, ruling that environmental factors may properly be considered under the Rivers and Harbors Act.

The [Corps of Engineers] was entitled, if not required, to consider ecological factors and, being persuaded by them, to deny that which might have been granted routinely five, ten, or fifteen years ago before man's explosive increase made all, including Congress, aware of civilization's potential destruction from breathing its own polluted air and drinking its own infected water and the immeasurable loss from a silent-spring-like disturbance of nature's economy.²⁶

The Corps' § 404 Jurisdiction

The reach of the Corps' jurisdiction under the Rivers and Harbors Act and § 404 of the FWPCA was for years the subject of controversy, most of it concerning the definition of the statutory term "navigable waters."²⁷ The definiton of the term and, thus, the reach of the Corps' jurisdiction, is tied historically to concepts of navigability. The traditional test of navigability is whether a river "has been, is, or may be used, with or without reasonable improvements, as a highway for commerce over which trade and travel is, or may be, conducted in the customary modes."²⁸ In keeping with this test, the Corps limited its authority under the Rivers and Harbors Act to "waters that are subject to the ebb and flow of the tides shoreward to their mean high water mark (mean higher high water mark on the Pacific Coast)."²⁹

The 1972 Amendments altered rather than ended the controversy over the definition of the term "navigable waters." Section 502(7) of the Act defines navigable waters as "waters of the United States, including the territorial seas."³⁰ Congress indicated in the legislative history that the new definition encompasses far more than those water bodies covered by traditional concepts of navigability, [11 ELR 10235] though it declined to be more specific.³¹ A number of courts have had occasion to consider exactly what this new definition means.

In United States v. Holland,³² the district court held that even though the wetlands involved in that case lay beyond the mean high water mark traditionally used to define navigable waters, they were nevertheless subject to regulation under the FWPCA.

Congress has wisely determined that Federal authority over water pollution properly rests on the commerce clause and not on past interpretations of an act designed to protect navigation. And the Commerce clause gives Congress ample authority to reach activities above the mean high water line that pollute the waters of the United States.³³

Similarly, in Leslie Salt Company v. Froehlke,³⁴ the Ninth Circuit Court of Appeals rejected the lower court's determination that the geographical extent of the Corps' jurisdiction is coterminous under both the Rivers and Harbors Act and the FWPCA.

It is clear from the legislative history of the FWPCA that for the purposes of that Act, Congress intended to expand the narrow definition of the term "navigable waters," as used in the Rivers and Harbors Act. This court has indicated that the term "navigable waters" within the meaning of the FWPCA is to be given the broadest possible constitutional interpretation under the Commerce Clause.³⁵

However, when the Corps, three years before Leslie Salt, first promulgated regulations under § 404, it defined the term "navigable waters" in a way that limited its jurisdiction under the FWPCA to that which it exercised under the Rivers and Harbors Act:

The term … is administratively defined to mean waters that have been used in the past, are now used, or are susceptible to use as a means to transport interstate commerce landward to their ordinary high water mark and up to the head of navigation …, and also waters that are subject to the ebb and flow of the tides shoreward to their mean high water mark (mean higher high water mark on the Pacific coast).³⁶

The Natural Resources Defense Council (NRDC) and others challenged this limited assertion of jurisdiction as being inconsistent with the intent of Congress to regulate "all waters of the United States." In NRDC v. Callaway,³⁷ the District Court for theDistrict of Columbia agreed, and ordered the Corps to issue new regulations clearly recognizing the statute's full regulatory mandate.

In response, the Corps issued regulations, finalized in 1977,³⁸ extending its § 404 jurisdiction to all navigable coastal, inland, and interstate waters, including lakes, rivers, and streams, and their tributaries.³⁹ In addition, wetlands, swamps, and the like, whether or not adjacent to bodies of water, were also within the scope of the new regulations.⁴⁰ These regulations were upheld in federal district court.⁴¹ However, the application of the Corps' regulations to wetlands and similar areas continues to raise knotty, often scientific issues.

The Corps' 1975 regulations defined the term "wetlands" to include those

areas that are contiguous or adjacent to other navigable waters and that support freshwater vegetation, … that are periodically inundated and that are normally characterized by the prevalence of vegetation that requires saturated soil conditions for growth and reproduction.⁴²

In United States v. Riverside Bayview Homes, Inc.,⁴³ the court found that defendants' land-filling operations were subject to the Corps' permitting powers because the property was characterized by vegetation requiring saturated soil conditions. However, those areas which were inundated less than 25 percent of the time were not "periodically inundated" within the meaning of the regulations and thus did not come under the Corps' jurisdiction.

In the 1977 revision to its § 404 regulations the Corps defined the term "wetlands" to include

those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.⁴⁴

Its stated intent was to recognize a broadened jurisdiction commensurate with the goals of the FWPCA. Thus, the Corps eliminated reference to "periodic inundation" and replaced the words "vegetation that requires saturated soil conditions" with the words "vegetation typically adapted for life in saturated soil conditions" to close a "technical loophole" which might exclude truly aquatic species.⁴⁵

In Avoyelles Sportsmen's League v. Alexander,⁴⁶ the [11 ELR 10236] district court rejected the privatedefendants' contention that the 1977 definition should be restricted to deep swamp areas that are inundated almost 100 percent of the time. Since the area to be cleared by defendants supported a prevalence of vegetation adapted to saturated soil, the Corps had properly concluded that it was a wetlands within the scope of the § 404 program.

In 1977, Congress once again wrestled with the extent of the Corps' regulatory jurisdiction, but chose not to limit its geographic reach.⁴⁷ And while plaintiffs have not infrequently raised jurisdictional claims on review of permit denials or as a defense to enforcement proceedings, such challenges have typically been summarily dismissed. Thus, while the reach of the Corps' jurisdiction is all but settled as a legal matter, as a practical matter, the biological definition of "wetlands" and similar areas allegedly within the Corps' regulatory authority remains as important and often disputed area.⁴⁸

Takings Issues

When jurisdictional claims have failed, frustrated applicants for dredge and fill permits have recently turned to other legal arguments, including constitutional claims. For example, when a federal district court upheld the Corps' denial of permits for two tracts of mangrove wetlands on Marco Island, Florida,⁴⁹ the Deltona Corporation sought monetary compensation in the United States Court of Claims, alleging inverse condemnation. In Deltona Corp. v. United States,⁵⁰ a decision destined for prominence, the court rejected such claims, thereby writing the last chapter on one of the longest running conflicts over wetlands development in memory.⁵¹

Deltona's Marco Island project, begun in 1964, involved the development of a 10,000-acre site as a self-sufficient community of 35,000 persons. The plans called for five major construction areas each to be developed and permitted separately. The Corps routinely issued the first permit for filling the "Marco River" area in 1964 under § 10 of the Rivers and Harbors Act. A second permit was issued for "Roberts Bay" in 1969, conditioned on Deltona's acknowledgement that in light of the Corps' new policy of conducting "public interest" reviews⁵² of dredge and fill permits, favorable dispositions of future permit applications could not be presumed. Before the Corps processed the next three applications, Congress enacted the 1972 Amendments of the FWPCA, and the Corps was ordered to revise its regulations to extend its authority over coastal wetlands.⁵³ In 1976, the Corps denied two permits for filling nearly 2,000 acres in the "Barfield Bay" and "Big Key" areas and granted a permit for filling 113 acres in "Collier Bay," where a significant amount of mangrove wetlands had already been filled.⁵⁴

In reaching this decision, the Corps' Chief of Engineers focused principally on the fact that completion of these stages of the project would cause the destruction of thousands of acres of wetlands and underwater ecological systems.⁵⁵ Citing Congress' goal of maintaining the "chemical, physical, and biological integrity of the nation's waters,"⁵⁶ EPA's guidelines under § 404(b) (which established the destruction of aquatic resources by filling wetlands as "the most severe environmental impact" covered by the guidelines),⁵⁷ as well as Corps' regulations stating that destruction of wetlands should be discouraged as contrary to the public interest,⁵⁸ the Chief concluded that Deltona had failed to show that the benefits of the proposed activites outweighed the environmental damage.

Deltona challenged the Corps' denial of the permits in federal district court and sought damages under the Tucker Act in the Court of Claims. In Deltona Corp. v. Alexander,⁵⁹ the district court ruled that the Corps had complied with its own regulations concerning consideration of public and agency comments. The court also rejected Deltona's contention that the Corps was estopped from denying the later permits because it had known of the Marco Island "master plan" when it issued the first permits in 1964. Deltona had alleged no "affirmative misconduct" by the Corps and thus could not overcome the presumption against applying estoppel against the government. With respect to the company's takings claim, the court deferred to the then-pending decision of the Court of Claims.

In Deltona Corp. v. United States,⁶⁰ the validity of the permit denials was not at issue. Instead, the Court of Claims considered Deltona's claim that it has suffered an uncompensated taking as a consequence of federal regulation in violation of the Fifth Amendment. At the outset, the court noted the crucial factor in the case was the substantial expansion of the Corps' regulatory jurisdiction during the late 1960s and early 1970s. These changes, is noted, substantially advance legitimate federal interests. Further, they provide benefits to Deltona, like other members of the public, which must be taken into account when considering the company's claim for damages.

In attempting to articulate the constitutional significance of Deltona's loss, the court initially agreedthat, at [11 ELR 10237] least with respect to the "Barfield Bay" and "Big Key" tracts, its "reasonable investment-backed expectation[s]" had been frustrated. Nor did the court disagree with Deltona's claim that it had been denied the "highest and best economic use" of its property. But these standards, the court emphasized, mischaracterize the proper test to be applied under the Fifth Amendment. Rather, the question to be asked is whether the alleged taking extinguishes a fundamental attribute of ownership or deprives the owner of all economically viable use of the land. A close look at the facts convinced the court that Deltona could not satisfy this test. While Deltona could no longer develop the two tracts, it had obtained the necessary permits for "Collier Bay" and could develop another 111 upland acres, with a total market value twice what it paid for "Barfield Bay" and "Big Key." These injuries, the court concluded, merely constituted some diminution in value which, standing alone, is insufficient to establish a taking.

In two other decisions decided the same day, the Court of Claims expounded on Deltona. In Jentgen v. United States,⁶¹ plaintiff had been denied dredge and fill permits for 60 acres of mangrove wetlands, but still could develop 20 upland acres and 20 acres for which he had been granted permits. Since he retained an economically viable use of his land, the court reasoned, no Fifth Amendment taking had occurred.

However, in Laney v. United States,⁶² plaintiff had at least a colorable claim that he had been denied the opportunity to put his property to any remunerative use whatsoever. Plaintiff owned a 160-acre island in the Florida Keys on which he intended to establish a primate research facility. However, he had been unable to obtain from the Corps a § 404 permit authorizing construction of a pier needed to provide water access to and from the island. Evidently the Corps' policy is that in the case of island property, any private right of access across navigable water is subordinate to the federal navigation servitude. The court found that this "extraordinary" thesis would render the just compensation clause completely ineffective in protecting island property. It pointed out that in cases cited by the Corps, as in Deltona and Jentgen, plaintiffs sought to improve their access from their land to navigable water in order to enhance its value. Laney, however, simply sought access from navigable water to his land, to make it minimally useful. Again rejecting the contention that a mere diminution in value, i.e., a frustration of the "highest and best use" establishes a taking, it remanded for a consideration whether in this case all economic use had been denied by denying practical access.

Procedural Requirements

A potentially explosive issue, which for unknown reasons has surfaced only recently, involves the procedural requirements of § 404 of the FWPCA. Section 404 directs the Corps to issue permits "after notice and opportunity for public hearings."⁶³ Section 402, in very similar language, directs EPA to issue national pollutant dischargeelimination system permits "after opportunity for public hearing."⁶⁴ In Buttrey v. United States,⁶⁵ plaintiffs, who had been denied a permit to channelize the Gum Bayou in Louisiana, argued that since EPA is required to conduct adjudicatory hearings under § 402, the Corps must similarly conduct adjudicatory hearings for dredge and fill permits. They also invoked §§ 554 and 556 of the Administrative Procedure Act (APA) in support of their position that a hearing with a right to cross-examine is required.

The district court disagreed. Tracing the Corps' permitting jurisdiction back to the Rivers and Harbors Act of 1899, which provides for informal, non-adversarial public hearings, the court found no evidence in the legislative history of the FWPCA indicating that Congress had intended to do anything more than preserve the procedural status quo. In the case of EPA, on the other hand, a new agency issuing new permits, Congress was writing on a "clean slate." There is thus no reason to equate the procedural requirements of the two sections. The court also rejected, based on a previous Fifth Circuit decision,⁶⁶ plaintiffs' due process claims. Plaintiffs had been furnished with the outside comments the Corps considered in evaluating the application, had the opportunity to discuss the applications with the District Engineer, and were given extensions for submitting their own comments and reports. On the basis of the administrative record, the court concluded no procedural violations occurred and the permit was properly denied.

In Nofelco Corp. v. United States,⁶⁷ the district court rejected a similar claim that since adjudicatory hearings are required under § 402, they are required under § 404. It found that even though the term "public hearings" is used in both sections, the legislative history supports the use of different procedures. While § 402 permits have been issued by EPA only since 1972, the Corps has been administering its dredge and fill program, under § 404 and the Rivers and Harbors Act, for decades. Congress implicitly approved of the Corps' informal procedures by failing to specify otherwise in either the 1972 or the 1977 amendments to the FWPCA.

Plaintiffs have appealed the Buttrey decision to the Fifth Circuit. In that forum the crux of their argument⁶⁸ is that Congress did not intend the 1972 amendments to the FWPCA to merely reaffirm the Corps' existing permitting authority. On the contrary, the Act establishes a fundamentally restructured water pollution control regime. While conferring broad powers on EPA, Congress also chose to expand the Corps' regulatory authority from navigational obstructions to discharges in wetlands. In this light, they argue, the essentially identical hearing provisions of §§ 402 and 404 cannot be dismissed as an oversight or historical accident.

[11 ELR 10238]

The Corps' position⁶⁹ is that an adjudicatory hearing is not required under the APA, which applies only if the statute requires a hearing "on the record." Nor does either the language or the legislative history of § 404 contain such a requirement. Indeed, the fact that in the 1972 amendments dredge and fill jurisdiction was left with the Corps rather than given to EPA suggests that Congress intended to continue the informal administrative proceedings of the Rivers and Harbors Act. This interpretation is corroborated by the different judicial review procedures for §§ 402 and 404 determinations.⁷⁰ Moreover, the Corps argues, formal adjudicatory procedures are inappropriate for developing the kind of information necessary for § 404 proceedings.

Outlook

The Corps' program for regulating the discharge of dredge and fill materials into the nation's waters has had a history of many transitions. The "public interest review" added in 1968 significantly stiffened the Corps' regulatory policies to require consideration of environmental impacts. In the mid-1970s, when forced to reevaluate its permitting authority, the Corps vastly expanded its regulatory jurisdiction and began to protect wetlands as well as navigable rivers. While the legal questions surrounding the Corps' powers and responsibilities are ebbing, the increasing number of applications and more complex permitting processes have placed even greater pressures on the agency. It now takes an average of 130 days to process a § 404 permit application,⁷¹ most of which are relatively routine. As a result, the Corps is once again reviewing its § 404 program with an eye to simplifying its procedures and reducing permit processing time.⁷²

The Fifth Circuit's resolution of the procedural issues in Buttrey may have far-reaching impacts on the Corps' ability to achieve its goal of regulatory reform. Should the court rule that adjudicatory hearings are necessary it would add considerable time to the permitting process and further complicate an already elaborate reviewing procedure. In this event, a quick congressional remedy could not be ruled out. Congress is already considering amendments to the FWPCA to limit the Corps' jurisdiction,⁷³ and would probably have no qualms about streamlining the permitting process.

To those commentators who have expressed concern that the Corps' review of its § 404 program may compromise the purposes of § 404,⁷⁴ the recent Court of Claims decisions may be heartening. While Laney made clear that the Corps may not deny permits in all situations without paying just compensation, it appears from Deltona and Jentgen that even a very large diminution in the applicant's property value will not establish a taking. Thus, the Corps is free to deny permits in most situations where the potential environmental damage is great without paying for it.

1. __ F. Supp. __, 11 ELR 20321 (W.D. La. Mar. 12, 1981).

2. __ F.2d __, 11 ELR 20905 (Ct. Cl. Aug. 19, 1981).

3. Buttrey v. United States, __ F. Supp. __, 11 ELR 20932 (E.D. La. Apr. 1, 1981); Nofelco Realty Corp. v. United States, 521 F. Supp. 458, 11 ELR 21090 (S.D.N.Y. Sept. 11, 1981).

4. 33 U.S.C. §§ 401-466n, ELR STAT. & REG. 41141.

5. 33 U.S.C. § 401, ELR STAT. & REG. 41141. See Hart and Miller Islands Area Environmental Group, Inc. v. Corps of Engineers, 621 F.2d 1281, 10 ELR 20452 (4th Cir. 1980) (congressional approval is not required for construction of a diked disposal area for dredged spoils, which is subject only to the requirements of § 10).

6. 33 U.S.C. § 403, ELR STAT. & REG. 41142.

7. 33 U.S.C. § 407, ELR STAT. & REG. 41142.

8. 33 U.S.C. §§ 1251-1376, ELR STAT. & REG. 42101.

9. 33 U.S.C. § 1311(a), ELR STAT. & REG. 42123. Those who qualify for a permit under § 404 are exempted from the requirements of the NPDES under § 402. 33 U.S.C. § 1342, ELR STAT. & REG. 42141.

10. 33 U.S.C. § 1344, ELR STAT. & REG. 42142. The Corps may also issue general permits for certain categories of activities having minimal environmental effects. 33 U.S.C. § 1344(e), ELR STAT. & REG. 42143.

11. Existing permits issued under § 13 remain in force. 33 U.S.C. § 1342(a)(4), ELR STAT. & REG. 42141. The § 10 permit program, which includes § 9 activities, applies to activities modifying navigable channels without regard to whether there has been a discharge, while § 404 reaches only discharges. See W. RODGERS, ENVIRONMENTAL LAW § 4.6 at 399 (1977).

12. 40 C.F.R. pt. 230.

13. 40 C.F.R. § 230.1(d).

14. 33 U.S.C. § 1344(c), ELR STAT. & REG. 42143.

15. 33 U.S.C. § 1344(m), ELR STAT. & REG. 42144.

16. 33 U.S.C. § 1344(s), ELR STAT. & REG. 42144-45.Courts require strict compliance with dredge and fill permits, United States v. King Fisher Marine Services, 640 F.2d 522, 11 ELR 20439 (5th Cir. Feb. 20, 1981), and have required restoration where landowners have acted without a permit. See United States v. DeFelice, 641 F.2d 1169, 11 ELR 20505 (5th Cir. Apr. 9, 1981), cert. denied, 50 U.S.L.W. 3300 (Oct. 19, 1981) (a private, artificial canal is within the Corps' jurisdiction; fill material ordered removed and canal restored to original condition); United States v. Weisman, 489 F. Supp. 1331, 10 ELR 20698 (M.D. Fla. 1980) (restoration of land to original state ordered where defendants constructed a roadway through a wetlands without a permit); United States v. Fleming Plantations, 9 ELR 20103 (E.D. La. 1978) (restoration of wetlands to original condition). But cf. United States v. Martin, 517 F. Supp. 211, 11 ELR 20997 (D.S.C. June 1, 1981) (on equity grounds, court refuses to require restoration of a pond built without a permit).

17. See Comment, The Move to Amend § 404 of FWPCA: House Passes Bill Limiting Federal Authority Over Dredge-and-Fill Activities, 7 ELR 10082 (1977), and Comment, The Clean Water Act of 1977: Congress Passes 'Mid-Course Correction' Amendments to the FWPCA, 8 ELR 10010 (1978).

18. 33 U.S.C. § 404(f), ELR STAT. & REG. 42143. In Avoyelles Sportsmen's League v. Alexander, 473 F. Supp. 525, 11 ELR 20315 (W.D. La. 1979), the court held that since private defendants' land-clearing operations were not part of an ongoing farming or forestry operation they did not constitute normal farming or silviculture practices and thus were not exempt from the permit program under § 404(f).

19. 33 U.S.C. § 1344(g), (h) & (j), ELR STAT. & REG. 42143-44. The Fish and Wildlife Service is responsible for assisting states in developing dredge and fill programs and must review such programs prior to EPA approval. 33 U.S.C. § 1344(g) & (h), ELR STAT. & REG. 42143. Regulation for approving state programs are codified at 40 C.F.R. pt. 123. See Petersen, FWS Assists State Section 404 and Section 208 Program Development, NAT'L WETLANDS NEWSLETTER, Vol. 2, No. 5, at 2 (1980); Petersen, EPA's Role in State Assumption of 404 Permit Authority, NAT'L WETLANDS NEWSLETTER, Vol. 2, No. 5, at 3 (1980).

20. 33 U.S.C. § 1344(h), (i) & (j), ELR STAT. & REG. 42143-44.

21. 33 U.S.C. § 1344(r), ELR STAT. & REG. 42144.

22. Id. In addition, Exec. Order Nos. 11988 and 11990 require federal agencies, including the Corps, to avoid adversely affecting wetlands and floodplains in the management, acquisition, or disposal of federal lands and facilities or in federally assisted construction programs. ELR STAT. & REG. 45026, 45029.

23. See 42 Fed. Reg. 37122 (July 19, 1977).

24. See 33 C.F.R. § 320.4, ELR STAT. & REG. 46368.

25. 296 F. Supp. 764 (M.D. Fla. 1969), rev'd 430 F.2d 199, 1 ELR 20023 (5th Cir. 1970), cert. denied, 401 U.S. 910 (1972).

26. 430 F.2d at 201, 1 ELR at 20023.

27. See generally, 42 Fed. Reg. 37122 (July 19, 1977), containing the preamble to the Corps' 1977 regulations; Comment, The Clean Water Act of 1977: Midcourse Corrections in the Section 404 Program, 57 NEB. L. REV. 1092 (1978). Other disputes have included the term "point source," as defined in § 502(14), and the term "discharge of dredged or fill material," as used in § 404(a). See Avoyelles Sportsmen's League v. Alexander, 473 F. Supp. 525, 11 ELR 20315 (W.D. La. 1979) (land-clearing equipment is a "point source"; clearing of trees and other vegetation, which are part of the navigable waters of the United States under the Corps' definition of wetlands, constitutes the discharge of dredged or fill material); see also United States v. Weisman, 489 F. Supp. 1331, 10 ELR 20698 (M.D. Fla. 1980) (dump trucks and bulldozers are "point sources" and fill material is a "pollutant" within the meaning of § 502).

28. United States v. Sunset Cove, Inc., 3 ELR 20370, 20372 (D. Or. 1973), aff'd in part, 514 F.2d 1089, 5 ELR 20407 (9th Cir. 1975).

29. 33 C.F.R. § 209.120(d)(1) (1977). See Leslie Salt Co. v. Froehlke, 403 F. Supp. 1292, 5 ELR 20039 (N.D. Cal. 1974), modified and rev'd in part, 578 F.2d 742, 8 ELR 20480 (9th Cir. 1978) (upholding Corps regulations extending jurisdiction to the mean higher high water mark on the Pacific coast).

30. 33 U.S.C. § 1362(7), ELR STAT. & REG. 42146.

31. The legislative history states:

The conference bill defines the term "navigable waters" broadly for water quality purposes. It means all "the waters of the United States" in a geographical sense. It does not mean "navigable waters of the United States" in the technical sense as we sometimes see in some laws …

Thus the new definition clearly encompasses all water bodies, including main streams and their tributaries, for water quality purposes. No longer are the old, narrow definitions of navigability, as determined by Corps of Engineers, going to govern matters covered by this bill.

118 CONG. REC. 33756-57 (1972).

32. 373 F. Supp. 665, 4 ELR 20710 (M.D. Fla. 1971). See also United States v. Ashland Oil and Transportation Co., 364 F. Supp. 349, 4 ELR 20185 (W.D. Ky. 1973), aff'd, 504 F.2d 1317, 4 ELR 20784 (6th Cir. 1974).

33. 373 F. Supp. at 675, 4 ELR at 20715.

34. 578 F.2d 742, 8 ELR 20480 (9th Cir. 1978).

35. 578 F.2d at 754-55, 8 ELR at 20486.

36. 33 C.F.R. § 209.120(d)(1) (1977).

37. 392 F. Supp. 685, 5 ELR 20285 (D.D.C. 1975).

38. 42 Fed. Reg. 37122 (July 19, 1977), codified at 33 C.F.R. pt. 320, ELR STAT. & REG. 46361. See Comment, Corps of Engineers Promulgates Revised Dredge and Fill Regulations, 7 ELR 10193 (1977). See also Comment, Comprehensive Wetlands Protection: One Step Closer to Full Implementation of § 404 of the FWPCA, 5 ELR 10099 (1975).

39. 33 C.F.R. § 323.2(a), ELR STAT. & REG. 46382-83.

40. Id.

41. Wyoming v. Hoffman, 437 F. Supp. 1977, 8 ELR 20001 (D. Wyo. 1977).

42. 33 C.F.R. § 209.120 (1977).

43. 7 ELR 20445 (E.D. Mich. 1977).

44. 33 C.F.R. § 323.2(c), ELR STAT. & REG. 46383.

45. 42 Fed. Reg. 37128 (July 19, 1977).

46. __ F. Supp. __, 11 ELR 20321 (W.D. La. Mar. 12, 1981). This was the second of two opinions issued by the court involving the Bayou Natchitoches basin. See note 18, supra.

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

48. See USI Properties Corp. v. Environmental Protection Agency, __ F. Supp. __, 11 ELR 20971 (D.P.R. July 14, 1981).

49. Deltona Corp. v. Alexander, 504 F. Supp. 1280, 11 ELR 20235 (M.D. Fla. Jan. 14, 1981).

50. __ F.2d __, 11 ELR 20905 (Ct. Cl. Aug. 19, 1981).

51. See Marco Island Decisions, NAT'L WETLANDS NEWSLETTER, Vol. 2, No. 6, at 6 (1980). See also Comment, Corps Confirms Policy Against 'Unnecessary' Development in Wetlands, 6 ELR 10117 (1976).

52. See text accompanying notes 23-26, supra.

53. NRDC v. Callaway, 392 F. Supp. 685, 5 ELR 20285 (D.D.C. 1975).

54. Report on Application for Department of the Army Permits to Dredge and Fill at Marco Island, Florida, DAEN-CWO-N (16 Oct. 1975) 6th Ind. (Chief of Engineers, Dep't of the Army, Apr. 15, 1976), 6 ELR 30020 (1976).

55. Id.

56. 33 U.S.C. § 1251(a), ELR STAT. & REG. 42105.

57. 40 C.F.R. § 230.1(d).

58. 33 C.F.R. § 320.4(b).

59. 504 F. Supp. 1280, 11 ELR 20235 (M.D. Fla. Jan. 14, 1981).

60. 11 ELR 20905 (Ct. Cl. Aug. 19, 1981).

61. __ F.2d __, 11 ELR 20910 (Ct. Cl. Aug. 19, 1981).

62. __ F.2d __, 11 ELR 20910 (Ct. Cl. Aug. 19, 1981).

63. 33 U.S.C. § 1344(a), ELR STAT. & REG. 42142.

64. 33 U.S.C. § 1342(a)(1), ELR STAT. & REG. 42141.

65. __ F. Supp. __, 11 ELR 20932 (E.D. La. Apr. 1, 1981).

66. Taylor v. District Engineer, 567 F.2d 1332, 8 ELR 20194 (5th Cir. 1978).

67. 521 F. Supp. 458, 11 ELR 21090 (S.D.N.Y. Sept. 11, 1981).

68. Brief for Appellant, Buttrey v. United States, No. 81-3234 (5th Cir., brief filed June 25, 1981).

69. Brief for Appellees, Buttrey v. United States, No. 81-3234 (5th Cir., brief filed Aug. 1981).

70. Under § 509(b)(1) of the FWPCA, 33 U.S.C. § 1369(b)(1), ELR STAT. & REG. 42148, EPA action under § 402 is reviewed in the court of appeals. Review of Corps actions under § 404 remains in the district courts.

71. See "Army Seeks to Rule Out 'Permit Escalation,'" The Washington Post, Nov. 5, 1981, at A27. Most applications are issued within 70 days.

72. Id.

73. S. 777, 97th Cong., 1st Sess. (Mar. 14, 1981). See also Tomasello, Congressional Action on § 404, NAT'L WETLANDS NEWSLETTER, Vol. 2, No. 4, at 4 (1980).

74. See Conservation Foundation Letter, at 7 (Sept. 1981).