EPA Sets Policy on the Protection of Wetlands

The Environmental Protection Agency recently established a policy to preserve the nation's wetlands and to protect wetland ecosystems from destruction through wastewater or non-point source discharges. It need hardly be pointed out that wetlands, which include marshes, swamps, bogs and other low-lying areas, have tremendous environmental value. They provide habitats for important fur-bearing mammals and many species of fish and waterfowl, moderate extremes in water flow, aid in water purification, maintain and recharge groundwater, and offer unique recreational opportunities. Hence it is appropriate that EPA adopt a policy especially favoring their protection.

An interesting aspect of EPA's statement of policy is its explicit reliance upon the National Environmental Policy Act as authority for refusing, as a matter of principle, to grant funds for treatment facilities to be constructed on wetlands, except when no other alternative is "feasible." Instances of creative reliance by federal agencies on the expanded authority conferred on them by NEPA have been hard to find. Yet NEPA does confer such authority, as the new draft CEQ Guidelines¹ and Zabel v. Tabb² indicate.

EPA's statement of policy follows:

a. In its decision processes, it shall be the agency's policy to give particular cognizance and consideration to any proposal that has the potential to damage wetlands, to recognize the irreplaceable value and man's dependence on them to maintain an environment acceptable to society, and to preserve and protect them from damaging misuses.

b. It shall be the agency's policy to minimize alterations in the quantity or quality of the natural flow of water that nourishes wetlands and to protect wetlands from adverse dredging or filling practices, solid waste management practices, siltation or the addition of pesticides, salts, or toxic materials arising from nonpoint source wastes and through construction activities, and to prevent violation of applicable water quality standards from such environmental insults.

c. In compliance with the National Environmental Policy Act of 1969, it shall be the policy of this agency not to grant federal funds for the construction of municipal waste water treatment facilities or other waste-treatment-associated appurtenances which may interfere with the existing wetland ecosystem except where no other alternative or lesser environmental damage is found to be feasible. In the application for such federal funds where there is reason to believe that wetlands will be damaged, an assessment will be requested from the applicant that delineates the various alternatives that have been investigated for the control or treatment of the waste water, including the reasons for rejecting those alternatives not used. A cost-benefit appraisal should be included where appropriate.

d. To promote the most environmentally protective measures, it shall be the EPA policy to advise those applicants who install waste treatment facilities under a federal grant program or as a result of a federal permit that the selection of the most environmentally protective alternative should be made. The Department of the Interior and the Department of Commerce will be consulted to aid in the determination of the probable impact of the pollution abatement program on the pertinent fish and wildlife resources of wetlands. In the event of projected significant adverse environmental impact, a public hearing on the wetlands issue may be held to aid in the selection of the most appropriate action, and EPA may recommend against the issuance of a Section 10 Corps of Engineers permit.³

In a press release EPA has stated that the wetlands policy will be applied to the fullest extent of its authority in conducting all program activities, including regulatory activities, research, development and demonstration, technical assistance, control of pollution from federal institutions, and the administration of the construction and demonstration grants, state program grants, and planning grant programs.

1. 38 Fed. Reg. 10856 (May 2, 1973) §§ 2, 4. ELR subscribers were sent reprints of these draft revised guidelines with the May issue. See also Comment, CEQ Proposes New Guidelines for NEPA, 3 ELR 10056 (May 1973).

2. 430 F.2d 199, 1 ELR 20023 (5th Cir. 1973), cert. denied 401 U.S. 910 (1971).

3. Environmental Protection Agency, Administrator's Decision Statement No. 4 (Feb. 21, 1973), 38 Fed. Reg. 10834-35 (May 2, 1973). EPA Administrator's Decision Statement No. 4 is available from the ELR Digest Facsimile Service (ELR Dig. [5-A] 2 pp. $0.20 [reprinted from the Federal Register]).