Corps of Engineers Promulgates Revised Dredge and Fill Regulations

On July 19, the Army Corps of Engineers issued final revised regulations¹ for its program of controlling discharges of dredge and fill material into waters of the United States pursuant to § 404 of the Federal Water Pllution Control Act (FWPCA). The final rules contain a number of revisions from the interim regulations² published in response to a court order in 1975³ and are intended to meet criticism that the regulatory regime initially imposed was too complex and the relevant procedures and requirements too uncertain. Provisions for general and nationwide rather than individual permits for certain classes of activities, for instance, seem particularly designed to counter accusations that the Corps' dredge and fill jurisdiction under § 404 of the FWPCA as interpreted by the court and the agency is overly extensive and should be legislatively cut back. The Corps does in fact face just such a legislative challenge from a section of the bill to amend the FWPCA passed by the House earlier this year.⁴

Provisions of the Regulations

The final regulations reiterate the Corps' general policy that activities such as dredge and fill discharges that destroy ecologically valuable wetland areas will be permitted only where the economic benefits exceed the ecologicall costs and it is "necessary" that the activity take place in a wetland area.⁵ The new rules contain additional guidance on this point that was not in the original interim regulations."Necessary" in this context is defined to mean "whether the proposed activity is primarily dependent on being located in, or in close [7 ELR 10194] proximity to, the aquatic environment and whether feasible alternative sites are available."

In describing the limits of its dredge and fill discharge jurisdiction, the Corps has substituted, for the term "navigable waters" that is used in § 404, the phrase "waters of the United States," which is the definition given that term in § 502(7). These waters are described and divided into four simpler categories rather than the nine differentiated in the 1975 regulations. The definition of "wetlands" adjacent to these waters has been changed from "periodically inundated"⁶ areas that are "normally characterized by a prevalence" of vegetation that requires saturated soil conditions to grow to 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."⁷

The rules also define the "headwaters" of a stream or river as the point at which the average or, if that proves misleading because of wide seasonal variations, the median annual flow is less than five cubic feet per second.⁸ Dredge and fill discharge activities above that point will be allowed under a single nationwide permit and will thus not require individual permit approvals.⁹ Unlike the 1975 regulations, the final rules place no size limitation on natural lakes and artificial impoundments that are subject to the Corps' jurisdiction but instead provide for the issuance of nationwide permits allowing discharges of dredge or fill material into natural lakes less than ten acres in surface area, including adjacent wetlands, that are fed by a stream or river above the headwaters or are isolated and not part of a tributary system to navigable waters.¹⁰

One main criticism leveled against the Corps' program in the past was that farming activities would be subject to Corps' regulation. The new regulations, however, specifically state that discharges associated with "plowing, seeding, cultivating and harvesting for the production of food, fiber and forest products" are not covered by the § 404 program.¹¹ In addition, the Corps has attempted to close a potential loophole by modifying the definition of fill material to exclude those pollutants that are discharged into water primarily to dispose of waste.¹² This change was made to prevent the disposal as fill in wetlands or waters of municipal or industrial solid waste materials which were intended to be regulated under the National Pollutant Discharge Elimination System (NPDES) permit program. The discharge must also be free from toxic pllutants in other than trace quantities.

The regulations contain nationwide permits for a number of dredge and fill discharge activities that have relatively minor environmental effects. These include discharges in conjunction with utility line construction, bank stabilization, minor road crossings, and repair or replacement of existing fills.¹³ General permits covering other types of discharges with minimal individual and cumulative adverse environmental impacts may be issued by district engineers for particular regions of the country.¹⁴

Applications for individual permits will be processed concurrently with any other required federal, state, or local authorizations, and wheresuch an authorization has been denied, the application for a dredge and fill discharge permit will be denied also. If, on the other hand, the required federal, state, or local authorizations or certifications are granted, the dredge and fill discharge permit will generally also be issued unless there are overriding national factors of the public interest that weigh against issuance.¹⁵

Conclusion

The new regulations further refine the policies, procedures, and requirements of the Corps' regulatory program for controlling discharges of dredge and fill materials into waters of the United States and their adjacent wetlands. The provisions for nationwide and general permits may result in looser restrictions on certain de minimis discharge activities, but the basic regulatory scheme remains comprehensive and workable. Yet the program faces a serious threat in the form of continuing congressional efforts to amend § 404 to circumscribe the Corps' dredge and fill jurisdiction. The Senate and House bills¹⁶ to amend the FWPCA, the latter of which contains such an amendment to § 404, are scheduled for conference committee reconciliation.Therefore, whether the jurisdictional rug will be pulled out from under these regulations and the agency's broader efforts to protect the nation's wetlands will soon be known.

1. 33 C.F.R. pts. 321, 323, 42 Fed. Reg. 37122, 37144 (July 19, 1977), ELR Stat. & Reg. 46361, 46377.

2. 33 C.F.R. § 209.210, 40 Fed. Reg. 31320 (July 25, 1975). See Comment, Corps Issues Interim Rules for Discharges of Dredge and Fill Materials, 5 ELR 10143 (1975).

3. Natural Resources Defense Council v. Callaway, 392 F. Supp. 685, 5 ELR 20285 (D.D.C. 1975). See Comment, Comprehensive Wetlands Protection: One Step Closer to Full Implementation of § 404 of the FWPCA, 5 ELR 10099 (1975).

4. H.R. 3199, 95th Cong., 1st Sess. (1977). See Comment, The Move to Amend § 404 of the FWPCA: House Passes Bill Limiting Federal Authority Over Dredge and Fill Activities, 7 ELR 10082 (May 1977).

5. 33 C.F.R. § 320.4(b)(4), 42 Fed. Reg. 37137 (July 19, 1977), ELR Stat. & Reg. 46368.

6. This phrase had proved difficult to interpret in practice because there was no guidepost for determining how long a period of time could elapse between inundations without removing the area from the category of wetlands. See United States v. Riverside Bayview Homes, __ F. Supp. __, 7 ELR 20445 (D.E. Mich. Feb 24, 1977).

7. 33 C.F.R. § 323.2(c), 42 Fed. Reg. 37144 (July 19, 1977), ELR Stat. & Reg. 46383.

8. 33 C.F.R. § 323.2(i), 42 Fed. Reg. 37145 (July 19, 1977), ELR Stat. & Reg. 46383.

9. 33 C.F.R. § 323.4-2(a)(1), 42 Fed. Reg. 37146 (July 19, 1977), ELR Stat. & Reg. 46385.

10. Id. at § 323.4-2(a)(2).

11. 33 C.F.R. § 323.2(l), (n), 42 Fed. Reg. 37145 (July 19, 1977), ELR Stat. & Reg. 46383.

12. Id. at § 323.2(m).

13. 33 C.F.R. § 323.4-3, 42 Fed. Reg. 37146 (July 19, 1977), ELR Stat. & Reg. 46385.

14. 33 C.F.R. § 323.3(c), 42 Fed. Reg. 37145 (July 19, 1977), ELR Stat. & Reg. 46384.

15. 33 C.F.R. § 320.4(j), 42 Fed. Reg. 37138 (July 19, 1977), ELR Stat. & Reg. 46369.

16. S. 1952, 95th Cong., 1st

Sess. (1977); H.R. 3199, 95th Cong., 1st Sess. (1977).