[Senate Hearing 105-328]
[From the U.S. Government Publishing Office]
S. Hrg. 105-328
WETLANDS: REVIEW OF REGULATORY CHANGES
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HEARING
BEFORE THE
SUBCOMMITTEE ON
CLEAN AIR, WETLANDS, PRIVATE PROPERTY AND NUCLEAR SAFETY
OF THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED FIFTH CONGRESS
FIRST SESSION
TO CONDUCT OVERSIGHT OF WETLANDS NATIONWIDE PERMIT PROGRAMS
ADMINISTERED BY THE CORPS OF ENGINEERS AND THE ENVIRONMENTAL PROTECTION
AGENCY
__________
JUNE 26, 1997
__________
Printed for the use of the Committee on Environment and Public Works
U.S. GOVERNMENT PRINTING OFFICE
45-801 cc WASHINGTON : 1998
_______________________________________________________________________
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington DC 20402
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED FIFTH CONGRESS
JOHN H. CHAFEE, Rhode Island, Chairman
JOHN W. WARNER, Virginia MAX BAUCUS, Montana
ROBERT SMITH, New Hampshire DANIEL PATRICK MOYNIHAN, New York
DIRK KEMPTHORNE, Idaho FRANK R. LAUTENBERG, New Jersey
JAMES M. INHOFE, Oklahoma HARRY REID, Nevada
CRAIG THOMAS, Wyoming BOB GRAHAM, Florida
CHRISTOPHER S. BOND, Missouri JOSEPH I. LIEBERMAN, Connecticut
TIM HUTCHINSON, Arkansas BARBARA BOXER, California
WAYNE ALLARD, Colorado RON WYDEN, Oregon
JEFF SESSIONS, Alabama
Jimmie Powell, Staff Director
J. Thomas Sliter, Minority Staff Director
______
Subcommittee on Clean Air, Wetlands, Private Property, and Nuclear
Safety
JAMES M. INHOFE, North Carolina, Chairman
TIM HUTCHINSON, Arkansas BOB GRAHAM, Florida
WAYNE ALLARD, Colorado JOSEPH I. LIEBERMAN, Connecticut
JEFF SESSIONS, Alabama BARBARA BOXER, California
(ii)
C O N T E N T S
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Page
JUNE 26, 1997
OPENING STATEMENTS
Boxer, Hon. Barbara, U.S. Senator from the State of California... 8
Chafee, Hon. John H., U.S. Senator from the State of Rhode Island 2
Hutchinson, Hon. Tim, U.S. Senator from the State of Arkansas.... 3
Graham, Hon. Bob, U.S. Senator from the State of Florida......... 7
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma... 1
Sessions, Hon. Jeff, U.S. Senator from the State of Alabama...... 9
WITNESSES
Carter, Derb S., Jr., Southern Environmental Law Center, Chapel
Hill, NC....................................................... 37
Prepared statement........................................... 117
Davis, Michael, Deputy Secretary of the Army for Civil Works..... 5
Charts....................................................... 13
Prepared statement........................................... 56
McKenzie, Donald F., Conservation Policy Coordinator, Wildlife
Management Institute........................................... 35
Fact sheet, Duck Hunting and Wetlands........................ 112
Letter, supplementing testimony.............................. 43
Prepared statement........................................... 108
Noyes, James, Assistant Director, Los Angeles County Department
of Public Works, on behalf of the National Association of Flood
and Stormwater Management Agencies............................. 32
Prepared statement........................................... 100
Seibert, Darrel, President, Siebert Development Corporation,
Hudson, OH, on behalf of the National Association of
Homebuilders................................................... 30
Letters, Corps of Engineers and Department of Justice........ 68
Motions, Injunction in Tulloch Rule case..................... 91
Prepared statement........................................... 64
Siegel, Donald, Professor of Earth Sciences, Syracuse University,
Syracuse, NY................................................... 33
Prepared statement........................................... 104
Responses to additional questions from Senator Chafee........ 107
Wayland, Robert H. III, Director, Office of Wetlands, Oceans, and
Watersheds, Office of Water, U.S. Environmental Protection
Agency......................................................... 10
Guidance letter, Court decision on dredged material
discharges, Corps of Engineers and Environmental Protection
Agency..................................................... 24
Prepared statement........................................... 51
Winter, Thomas W., President, Winter Brothers Material Company,
St. Louis, MO, on behalf of the National Aggregates Association 39
Prepared statement........................................... 119
ADDITIONAL MATERIAL
Article, Fisheries, Wetlands and Jobs, Campaign to Save
California Wetlands............................................ 199
Fact sheet, Effects on Duck Hunting of Renewing Federal
Protection of Wetlands, Wildlife Management Institute.......... 112
Letters:
National Wildlife Federation................................. 136
North Carolina Coastal Federation............................ 188
Membership list, Nationla Wetlands Coalition..................... 129
Memorandum, Single Family Housing Permit Program................. 191
Statements:
Gulf Restoration Network..................................... 121
National Association of Realtors............................. 124
National Wetlands Coalition.................................. 126
National Wildlife Federation................................. 130
Pacific Coast Federation of Fishermen's Associations......... 192
Wise Use Movement............................................ 226
WETLANDS: REVIEW OF REGULATORY CHANGES
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THURSDAY, JUNE 26, 1997
U.S. Senate,
Committee on Environment and Public Works,
Subcommittee on Clean Air, Wetlands, Private
Property, and Nuclear Safety,
Washington, DC.
The subcommittee met, pursuant to notice, at 9:30 a.m. in
room 406, Dirksen Senate Office Building, Hon. James M. Inhofe
(chairman of the subcommittee) presiding.
Present: Senators Inhofe, Hutchinson, Sessions, Graham, and
Chafee (ex officio).
OPENING STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR FROM
THE STATE OF OKLAHOMA
Senator Inhofe. The hearing will come to order.
I'd like to welcome everyone at the hearing today. This is
the first Senate hearing on wetlands issues in this Congress.
The focus of today's hearing is recent changes on wetlands
program.
Over the last year there have been two major changes in the
wetlands program. The first major change occurred last December
when the Army Corps of Engineers reissued the nationwide
permits beginning the elimination of Nationwide Permit 26.
The second major change happened in January of this year
when the U.S. District Court of the District of Columbia
invalidated the Tulloch rule. Both of these changes have major
impacts on our Nation's wetlands policy.
Last December the Corps issued new regulations
reauthorizing the Nationwide Permit program. In doing so, they
drastically changed the Nationwide Permit 26 and announced its
elimination within 2 years. This permit had been in place since
1977 and has been reauthorized every 5 years.
They also announced that they would develop replacement
permits over the next 2 years.
My major concern is when did the Corps decide to eliminate
this permit and why. I know the environmental community has
been calling for the permit to be eliminated for years, but the
Corps had the opportunity to work on replacement permits since
they last reauthorized the program in 1991.
Particularly disturbing to me is the fact that the
elimination of the program was not mentioned at all in the
proposed rulemaking last June. The Administration did not
propose this program change. It did not solicit any comments.
In my opinion, they have not followed the Administrative
Procedures Act. I hope the Administration witnesses can shed
some light today as to why they felt compelled to change this
program without proper notice and without comment and
procedures.
I'm also concerned about the burdens this change will place
on the Corps as they work to approve wetlands permits. At a
hearing in the last Congress, the Corps defended the slow
process time of the individual permits by saying that most
applicants used the Nationwide Permit program. Of course, if
they change this permit program then that's going to--they're
going to lose that argument. They've also placed themselves
under the gun regarding elimination of Nationwide Permit 26 in
under 2 years.
If they don't have adequate replacement permits in place,
the number of individual permits will cripple the Corps. If it
looks like this will happen, I will introduce some ``push-
through legislation'' that continues the old Nationwide Permit
26 program until the replacement permits take effect.
Regarding the Tulloch decision, I do believe the Corps
overstepped its authority to issue the Tulloch rule. This is an
issue that should be left to Congress to decide, and I think
the court was correct in recommending that Congress should take
up this issue. My major concern for the Administration today is
to learn how they are implementing the court order, what the
district offices are doing, and to ask the Corps for
legislative language regarding the underlying problem with the
Tulloch rule.
We have two panels today. The first panel has just two
witnesses. We will have six witnesses in the second panel.
Since this hearing will be concluded at precisely 11:40, we
will devote a little more time to the second panel. We'll try
to get through the first panel by--let's say by 10:20.
With that, I'll turn to the chairman of our full committee.
I'm delighted to have Senator Chafee here with us today.
OPENING STATEMENT OF HON. JOHN H. CHAFEE, U.S. SENATOR FROM THE
STATE OF RHODE ISLAND
Senator Chafee. Thank you very much, Mr. Chairman.
I look forward to participating in this, the first hearing
of the 105th Congress on section 404 of the Clean Water Act.
I'd like to join you in thanking all of the witnesses that
will appear before the subcommittee this morning.
Today's hearing, as you indicated, Mr. Chairman, is
important, as it will give us a better understanding of some
very contentious issues surrounding the scope and jurisdiction
of our Federal wetlands program.
During the 104th Congress, this subcommittee and the full
committee held a number of hearings on wetland reform. These
hearings demonstrated some of the difficulties experienced by
section 404 permit applicants, ranging from delays in the
processing of permit applications to the rigid and inconsistent
application of 404 standards.
Although I agree that 404 is in need of reform, any reform
must ensure that the key protections of section 404 are not
undermined. Despite the widespread disagreement over
contentious issues like the Tulloch rule and Nationwide Permit
26, there is one thing on which I believe we can all agree:
wetlands and the functions they serve and the benefits they
provide are critical. These functions include, amongst others:
water purification, flood control, recharging of groundwater
aquifers, and waterfowl and wildlife habitat.
Another factor that we cannot ignore is that more than half
of the wetlands that existed in the lower 48 States during
colonial times already have been substantially degraded or lost
totally.
Section 404 has helped to improve dramatically the
integrity and vitality of our Nation's waters.
I look forward to working with you, Mr. Chairman, chairman
of the subcommittee, and Ranking Members Baucus and Graham and
others to address the difficulties of the wetlands regulatory
program in a manner that maintains the important protections of
section 404.
Thank you.
Senator Inhofe. Thank you, Mr. Chairman.
Senator Hutchinson, I have enjoyed your Stuttgart, AR,
hunting areas for quite some time, so it's appropriate that you
be here to talk about wetlands.
OPENING STATEMENT OF HON. TIM HUTCHINSON, U.S. SENATOR FROM THE
STATE OF ARKANSAS
Senator Hutchinson. Thank you, Mr. Chairman. I appreciate
the opportunity to be here and to express my views on this
issue in my opening statement, realizing that we may have votes
scheduled through the morning.
Let me begin by saying that this hearing comes at an
opportune time for me, as an Arkansan, for one of the agencies
that receives the most complaints in Arkansas is the Army Corps
of Engineers. Honestly, they are right up there with the IRS
when it comes to not being respected within the State. There
are a lot of complaints in regard to public relations, which
we're in the process of working on, and we've received
cooperation from the Corps in that regard.
Many of the problems, however, deal with the permitting
processes of the Corps. In meetings with the constituents, I've
heard the Corps described as arrogant, they've been described
as uncooperative, and these are very much common themes, not
isolated incidents. So we already have a huge problem in
Arkansas with the public's perception of the Corps, and now the
Corps has changed the regulations that exist to protect our
wetlands, the Nationwide Permit 26.
It is one thing for the Corps to make the changes they see
fit with regard to wetlands, but they made many of these
changes without regard to public comment.
It is my understanding that three of the provisions
changing Nationwide 26 were not in the proposed ruling, yet
they were in the final rule. And if I understand the
Administrative Procedures Act correctly, this is not in
compliance with that Act.
But even if it were not a violation of the Act, one of the
most basic tenets of proposing a regulation is to notify the
public and to allow comment. It's amazing to me that this
process was not followed.
It is not as if these changes were minor, either. One of
the largest changes is to require an individual permit if 500
linear feet of a river bed is disturbed. There's no definition
for what a river bed is. Its definition may be left up to the
districts to decide.
Another change in the final rule is to eliminate the
Nationwide Permit 26 altogether. The other change was to
prohibit stacking of nationwide permits.
Prior to this rule, someone could use multiple nationwide
permits if multiple permits were necessary. Now even if someone
is doing something unrelated to the rest of the project they
cannot use multiple nationwide permits.
This is the type of arrogance that I've seen in the
districts in Arkansas. An agency that is supposed to serve the
public ignores common courtesy when implementing regulations,
and it certainly should not even appear to be skirting the law.
A big part of the frustration that my constituents faced
with the Corps is a lack of an appeals process. If their
request is denied and they want it reconsidered, it is simply
sent back to the same group that reviewed it in the first
place.
In 1993 the Administration set out its goals for a wetlands
plan, and one of these goals was to establish an administrative
appeals process. I don't know what has been done to this point,
but it's my impression that very little has been done.
I understand this issue also came up in the April House
hearing. Mike Davis, who is here today, testified that the
Congress had not appropriated money for the Corps to implement
an appellate process. To me, that's an unsatisfactory answer.
We should not be debating in congressional hearings why there
is not an appellate process. This process should exist, and it
should exist, period.
Considering the level of contact that the Corps has with
constituents, an appellate process should be standard operating
procedure. Agencies cannot continue to blame Congress for
inaction. Many agencies are facing the same budget difficulties
as the Corps of Engineers, and yet they have appellate
processes available.
I understand that Congressman Young indicated in the House
hearing that he would introduce legislation to require the
Corps to implement an appellate process, and I intend to take
corresponding legislation in the Senate and introduce it here.
It's time that the Corps respond to the public's concern.
Since the Corps of Engineers cannot keep their own promises, it
is time for Congress to take action. I commend our subcommittee
chairman for calling this hearing and for expressing his
concern about this issue and ensuring that the Corps is more
responsive to the needs of our constituents and to the
constituents around the country.
Thank you, Mr. Chairman.
Senator Inhofe. Thank you, Senator Hutchinson.
We'd ask Mr. Davis and Mr. Wayland to approach the table.
As I said, we may have some votes today. It's my hope we
can get by the first panel without having to be interrupted
with votes. If they are, I won't make the mistake I made last
time by continuing. In frustration, Mr. Chairman, we allowed
some of them to continue to testify when we were voting. I
won't make that mistake again. It didn't go unnoticed.
We'll ask you, all witnesses in the first and the second
panel, to make an opening statement not to exceed 5 minutes.
We've got the red and the yellow and the green lights, which
are self-explanatory, and if you would comply with that we'll
try to do the same when answering your questions.
We'll start with Mr. Davis.
STATEMENT OF MICHAEL DAVIS, DEPUTY SECRETARY OF THE ARMY FOR
CIVIL WORKS, U.S. ARMY
Mr. Davis. Good morning, Mr. Chairman, members of the
committee. I am Michael Davis. I'm the Deputy Assistant
Secretary of the Army for Civil Works for Policy and
Legislation.
I am pleased to be here today to provide testimony on
behalf of the Department of the Army and the Administration on
this very important issue of wetlands protection and, in
particular, the issue of the reauthorization of the Corps'
Nationwide Permit program.
My colleague from EPA, Mr. Bob Wayland, will follow me and
discuss the Tulloch rule that has already been mentioned here
and the recent judicial decision affecting that regulation.
I will summarize my comments and, with your permission,
I'll submit a more-detailed statement for the record.
Senator Inhofe. All statements will appear in the record in
their entirety.
Mr. Davis. The Corps and EPA have been given the authority
under section 404 of the Clean Water Act to ensure the
chemical, physical, and biological integrity of the Nation's
waters, in part through the protection of wetlands.
Senator Chafee alluded to the importance of wetlands in
reducing floods, providing habitat, and maintaining water
quality. We also know that we've lost more than half of our
wetlands since the era of European settlement.
The maintenance of a viable and effective regulatory
program is vital to the protection of our Nation's wetlands
resources. The Administration's 1993 wetlands plan has provided
a much-needed road map and strategy for improving wetlands
programs. We have implemented many of the 40 initiatives in the
plan, and wetlands programs are now more fair, more flexible,
and more effective than ever before.
Based on the principles in the President's wetlands plan,
this past December the Corps issued on its normal 5-year cycle
a package of revised nationwide permits. These permits became
effective on February 11 of this year.
The Corps and EPA worked with others in the Administration
to develop a package of nationwide permits to reflect the need
to protect important wetlands, and also the need to allow
activities that are truly minor to go forward with little or no
review.
It is important to understand the authority of the Corps of
Engineers to issue general permits. This authority is found in
Clean Water Act section 404(e). The authority prescribes two
explicit requirements for all general permits, including
nationwide permits.
First, general permits must be based on categories of
activities which are similar in nature. Second, the activities
authorized must not result in more than minimal adverse
environmental effects, either individually or cumulatively.
These are two statutory thresholds.
General permits can be issued on a State, regional, or
nationwide basis for a period not to exceed 5 years.
Clearly, the general permit program has become a very
integral part of the Corps' overall regulatory program. In
fact, over 85 percent of all the section 404 actions are
authorized by general permit. The average time for a final
decision under these general permits is 14 days. Yes, over 85
percent of the people who have to get 404 permits are covered
under a general permit in an average time of just 14 days.
In June 1996 the Corps published for public notice and
comment a proposal in the ``Federal Register'' to issue,
reissue, and modify the nationwide permits. In December 1996,
the Corps announced the reissuance of 37 permits and the
issuance of two new nationwide permits. These permits provide a
balanced package that incorporates over 4,000 public comments,
years of State and Federal experience with the nationwide
permits, and many months of discussions with the Government,
private, commercial, and nonprofit entities.
Over two-thirds or 25 of the nationwide permits were
reissued without any changes. Less than one-third of the
nationwide permits were modified. The vast majority of these
modifications were made to increase their applicability and
scope. Finally, two new nationwide permits were issued for some
activities that formerly required individual permits.
As you have alluded to, by far the most controversial issue
was the proposal to reauthorize Nationwide Permit 26 for
activities in isolated and headwater systems. This nationwide
permit, alone, accounts for approximately 30 percent of all the
activities authorized by nationwide permits, and, perhaps more
importantly, 75 percent of the total impact resulting from all
of the nationwide permits.
The most recent data and scientific literature indicate
that isolated and headwater wetlands play an important
ecological role--in fact, as important as other types of
wetlands--in protecting water quality, reducing flood flows,
and providing habitat for fish and wildlife species.
The National Academy of Sciences in its 1995 report on
wetlands noted, ``The scientific basis for policies that
attribute less importance to headwater areas and isolated
wetlands than to other wetlands is weak.''
In light of the above and in response to public comment,
several substantive changes were made to Nationwide Permit 26.
These include: reduction of the upper threshold from 10 acres
to 3 acres, addition of a 500 linear foot limitation for stream
bed impacts, prohibiting the use of Nationwide 26 with other
nationwide permits when the total impacts exceed 3 acres, and
the expiration and subsequent replacement of Nationwide 26
within 2 years.
The Corps determined that these provisions were necessary
to ensure minimal individual and cumulative impacts to the
statutory threshold.
We made these changes based on surveys from our field
offices and discussions with the public and others. For
example, the data shows that of the nearly 14,000 projects that
are authorized annually under Nationwide 26, these resulted in
about 5,000 acres of impacts annually. That's only part of it.
These are the ones we knew about. We estimate that there are
many more, perhaps as many as 20,000 other activities that were
allowed to go forward under Nationwide 26 that we didn't even
know about, bringing the total projects to nationally just
about 34,000 acres.
Senator Inhofe. Mr. Davis, I'd ask you to conclude your
opening statement.
Mr. Davis. I'll summarize. OK.
In conclusion, we strongly believe that the changes in the
Nationwide Permit program were needed in order to continue to
ensure that the tens of thousands of activities authorized
result in no more than minimal adverse environmental effects
either individually or cumulatively. Our experience with
administering the nationwide permit indicated that the form of
limitations on Nationwide 26 could no longer ensure that these
thresholds were met.
An essential part of the Corps' experience with
implementing the nationwide permit includes an increase in
scientific information. It clearly indicates the important
functions and values of headwaters and isolated waters to the
Nation's overall aquatic system. At the same time, the Corps
recognizes that activities that involve only minor impacts
should be allowed to proceed with little or no review and no
delay.
The nationwide permit replacements will ensure better that
the environmental effects of the Nationwide Permit program are
minimal and more clearly identify the activities covered.
Senator Inhofe. In conclusion?
Mr. Davis. I'll conclude there, Mr. Chairman, and I'll be
happy to answer any questions.
Senator Inhofe. Thank you very much.
We have been joined by the Ranking Member of our committee,
Senator Graham.
Senator Graham, did you have an opening statement?
OPENING STATEMENT OF HON. BOB GRAHAM, U.S. SENATOR FROM THE
STATE OF FLORIDA
Senator Graham. Thank you, Mr. Chairman.
Just some brief comments.
The items on our agenda today to me raise the basic
question of the Federal/State partnership for the protection of
wetlands. The Federal Government became involved in wetlands
protection originally through the desire to be able to give
greater protection to what I would describe as de facto
navigable waters--those waters such as, in States of Senator
Sessions and myself, the Appalachicola, to be able to protect
those waterways and allow the Federal Government to exercise
its national responsibilities for navigation.
From that beginning idea, the wetlands policy has expanded
into the areas that are the source of discussion today.
The States have traditionally had responsibility for land-
use planning, and much of national wetlands policy now is
essentially an attempt to have a Federal land use planning
imposed on very small parcels of land that are often
disassociated from the original goal of the 404 program.
I think the appropriate question for the Federal Government
in wetlands policy today is how can it use its influence to
encourage a cohesive, respectful partnership between the
Federal Government and the States, and that that question
should be a focus of this subcommittee's activities.
I know it's an issue of great concern to our chairman, and
I look forward to working with you in seeing that we can forge
that partnership which will both protect our Nation's wetlands
and also be respectful of our traditions of local
responsibility for local land use.
Senator Inhofe. Thank you, Senator Graham. I have here a
statement for the record from Senator Boxer.
[The prepared statement of Senator Boxer follows:]
Prepared Statement of Hon. Barbara Boxer, U.S. Senator from the State
of California
Mr. Chairman, today we will hear about the future of our country's
wetlands, an issue of vital concern to the people of California.
When California became a State in 1850, the State had an estimated
five million acres of wetlands. Today there are less than 450,000 acres
left, a loss of more than 90 percent. These 4.5 million acres of
wetlands were lost to urbanization, agricultural expansion, and flood
protection measures.
Most people agree that wetlands are important. They function as a
conveyance for floodwaters, as barriers to erosion and in sediment
control. They are vital for the continued existence of both waterfowl
and many important fish species. Wetlands are treasured for their
aesthetic properties and as recreational sites. They provide some of
the most biologically diverse ecosystems in our country.
Most of our country's remaining wetlands are on private lands.
Understandably, these private land owners have a keen interest in the
future of these lands.
The focus of the national debate then is not should we protect
wetlands, but rather how do we best balance the protection of wetlands
with an individual's right to manage his or her property?
Today we will hear how effectively the Army Corps of Engineers and
the Environmental Protection Agency is finding this balance.
We will hear about Nationwide Permit 26. This permit was
established by the Corps in 1977 to allow certain activities with minor
environmental effects to be conducted in headwaters and isolated waters
with little or no individual review by the Corps. Unfortunately, the
environmental effects of these activities have not been minor. The
California Department of Fish and Game says ``. . . Nationwide Permit
26 has resulted in significant adverse environmental impacts in
California.'' The U.S. Fish and Wildlife Service has found that in
northern California alone, more than a thousand acres of wetlands have
been filled between 1987 and 1994, under Nationwide Permit 26.
In December, 1996, the Corps issued an interim Nationwide Permit 26
that will expire in 2 years. Today we will hear how implementation of
the permit has affected wetlands and development activities. I support
the Corps' efforts to assess the effects of this permit and I look
forward to working with them during the interim period on development
of a final rule due in 1998.
Another issue we will hear about today is the Tulloch Rule, which
was established jointly by the Corps and the EPA to close a major
loophole in the Clean Water Act.
The loophole allowed a developer in North Carolina, using
sophisticated ditching techniques, to drain and destroy 700 acres of
valuable wetlands to build a golf course and related facilities, all
without a Clean Water Act permit. This activity not only destroyed
wetlands, but also flooded neighbors' property and polluted nearby
streams.
In response to a lawsuit brought by the North Carolina Wildlife
Federation over this particular development, the Corps and the EPA
developed the Tulloch Rule in August 1993. This rule was designed to
protect wetlands from unrestricted destruction. The rule was
immediately challenged in a lawsuit by the American Mining Congress.
The U.S. District Court for the District of Columbia overturned the
Tulloch Rule earlier this year. The Department of Justice has appealed
that decision.
I hope that the Appeals Court will reinstate the Tulloch Rule
because I see it as an important tool to be used by the Corps in
meeting the stated purpose of the Clean Water Act: ``to restore and
maintain the chemical, physical, and biological integrity of the
Nation's waters.''
Today, I look forward to hearing and discussing the pertinent
facts.
I also think it is critical that we look at how to make the
permitting process more efficient for legitimate activities.
Lastly, I believe we need to look at ways to help the enforcement
agencies in carrying out their important mandates for the protection of
the waters of the United States.
Finding the proper balance between streamlining the permitting
process while at the same time protecting our water resources will
continue to be a challenge. But it is a challenge that we must meet to
ensure a sound economy and a healthy environment.
As we listen to our panelists and as we engage in our discussions,
let us never lose sight that the Clean Water Act was enacted to protect
the lakes, rivers, streams, and wetlands of this country. For the sake
of our children and all the generations yet to be born, we have a
sacred obligation to protect what is left of this very precious
resource.
Thank you Mr. Chairman.
Senator Inhofe. We have been joined also by Senator Jeff
Sessions from Alabama.
Senator Sessions, do you have an opening statement?
OPENING STATEMENT OF HON. JEFF SESSIONS, U.S. SENATOR FROM THE
STATE OF ALABAMA
Senator Sessions. I do, and I'll make it a part of the
record. I would just like to say this is a matter of some
interest. As a Federal prosecutor, we worked with the Corps of
Engineers and the U.S. attorney, and sometimes got a lot of
complaints. Sometimes people were very unhappy with things.
It's a difficult area. We must remember that the fifth
amendment to the Constitution is quite clear, unambiguous:
private property cannot be taken without just compensation
being paid.
That's the fundamental principle we have to consider:
whether a regulation becomes a taking. I hear a lot of concerns
in my State about this.
There are good relationships, Senator Graham, I think,
between the Federal and State regulatory agencies, I think we
should build on that. I think you're exactly correct. And
sometimes the States are much more strict than the Federal
agencies and sometimes they're not as strict. That positive
relationship--that trust in the States to make some judgments
about their properties and environment--is important.
Thank you, Mr. Chairman.
Senator Inhofe. Thank you, Senator Sessions.
[The prepared statement of Senator Sessions follows:]
Prepared Statement of Hon. Jeff Sessions, U.S. Senator from Alabama
I would like to begin by thanking Chairman Inhofe for calling this
hearing today to discuss the recent series of administrative and
judicial changes that have occurred with regard to the regulation of
wetlands under section 404 of the Clean Water Act. These changes have
generated a great deal of comment within both the regulated community
and the environmental community, and I think it is appropriate that
this committee takes this opportunity to address these issues at this
time. By focusing today on both the recent judicial invalidation of the
``Tulloch Rule'', and also on the modified re-issuance of Nationwide
Permit 26 by the Army Corps of Engineers, this committee will be
effectively concentrating it's time and energies on the two issues that
have generated the lion's share of criticism by individuals on either
side of the current regulatory debate.
I would also like to take this opportunity to thank the witnesses
who will be testifying before the committee today. I am certain that
the knowledge that they bring forward and the opinions that they
possess will add greatly to our discussion of these issues.
Mr. Chairman, in a broader sense, today's hearings will vividly
illustrate the tension that exists as we try to maintain the balance
between two competing priorities. The first of these priorities
concerns the preservation of private property rights as a fundamental
right of American citizenship. As we all know, the fifth amendment to
the Constitution protects against the taking of private property for
public use without just compensation. With some estimates of wetland
acreage placing as much as 75 percent of our countries remaining
wetlands on privately-owned property, any change which serves to expand
the government's regulatory authority over such land or any change
which seeks to limit a property owners ability to develop their land
must be carefully evaluated to ensure that basic property rights have
not been improperly infringed upon.
The priority that we place on maintaining property rights often
seems to be at odds with the priority that we have placed on
environment stewardship. Certainly, we all recognize that there are
significant environmental benefits to be derived from the existence of
wetland regions. In fact, recognition of these benefits led Congress to
enact specific legislative protection for these areas. The Clean Water
Act, which gave rise to the Nationwide Permitting Process that will be
discussed today, serves as a prime example of the enactment of
specifically tailored legislation to further a particular environmental
goal. As the recent judicial invalidation of the ``Tulloch Rule''
illustrates, however, the careful balance between these dual priorities
can become blurred when Federal agencies enact regulatory changes that
seemingly expand their regulatory authority beyond its carefully
enacted limits.
That is why hearings such as the one we are attending today are
important. We have an oversight responsibility to ensure that actions
taken by Federal agencies do not result in improper obstructions of
one's ability to enjoy the benefits of private property ownership. I
commend the Chairman for his recognition of this oversight
responsibility and I look forward to today's discussion of these
important issues.
Senator Inhofe. Mr. Wayland.
STATEMENT OF ROBERT H. WAYLAND III, DIRECTOR, OFFICE OF
WETLANDS, OCEANS, AND WATERSHEDS, OFFICE OF WATER,
ENVIRONMENTAL PROTECTION AGENCY
Mr. Wayland. Thank you, Mr. Chairman.
I appreciate the opportunity to be here this morning with
you.
My prepared testimony and this greatly abbreviated summary
statement address four issues: the importance of wetlands, the
so-called ``Tulloch rule,'' mitigation banking, and the
agency's inter-agency Alaska initiative.
Any discussion of the 404 program needs to begin by
emphasizing the values and importance of wetlands as part of
the Nation's aquatic resources. They provide a multitude of
services to society: flood control, water quality improvement,
groundwater recharge, and fish and wildlife habitat, just to
name a few. And they also form the basis for many thousands of
jobs and contribute billions of dollars to the economy. Just
think of the importance of commercial fishing and recreational
hunting to our Nation, to name just two of those values.
Recognizing the importance of wetlands protection and
restoration to realizing the goals of the Clean Water Act, the
Administration set out to ensure that our wetlands programs are
fair, flexible, and effective. The result was the 1993
Administration wetlands plan.
Implementation of many of the plan's administrative
initiatives have produced tangible results by making the 404
program more fair and flexible, while continuing to ensure
effective protection of the Nation's human health and the
environment.
An important component of the plan was the EPA/Corps
issuance of a rule revising three section 404 regulatory
definitions. Let me emphasize that the district court decision
addressed only one part of that rule, the revised definition of
``discharge of dredged material.''
As a result, in the Government's view, the rest of that
rule, the so-called ``Tulloch rule,'' remains valid and in
effect. It provides that the placement of pilings is regulated
under section 404 when such placement has the effect of a
discharge of fill material. In addition, it also codified the
agencies policy that prior converted crop lands are not subject
to Clean Water Act regulation.
As you know, in response to a challenge brought by several
industry groups, the Federal district court invalidated the
Corps/EPA revised definition of ``discharge of dredged
material,'' frequently referred to as the ``Tulloch rule.''
EPA and the Corps respectfully disagree with the decision.
On April 10 the Department of Justice filed a notice of appeal,
and on April 22 a motion for stay of judgment in the district
court. On May 27 the district court issued a decision rejecting
our request for a stay. On May 30, DOJ filed a motion for stay
pending appeal in the court of appeals and requested, in the
alternative, that the court of appeals expedite consideration
of the case.
However, unless or until the district court's decision is
stayed or overturned, the Government is fully committed to
complying with the court's injunction.
On April 11, EPA and the Corps issued joint guidance to our
field staffs explaining the decision and its effect on the
section 404 program. The agency's decision to issue the Tulloch
rule was based on our increased understanding of the severe
environmental effects often associated with activities covered
by that rule, the increasing sophistication of developers who
seek to convert waters of the United States to uplands without
being subject to subject 404 environmental review, and
litigation brought to address these issues, notably Avoyelles
Sportsman's League v. Marsh.
EPA and the Corps continue to believe that the regulatory
clarification expressed in the Tulloch rule is within our
statutory authorities and was, in fact, consistent with the
practice of many Corps districts and EPA regions as they sought
to apply the Avoyelles decision.
The case that gave rise to the Tulloch rulemaking provides
a graphic illustration of the type of environmental harm that
occurred in the absence of 404 review prior to issuance of the
Tulloch rule. Developers in New Hanover, NC, drained, cleared,
and destroyed 700 acres of valuable wetlands to prepare a site
for residential and commercial development and a golf course.
This is an illustration of the activities that were underway on
that site.
[Indicates photographs in exhibit.]
This environmental destruction was not subject to review
because the developers went to great lengths to ensure that the
operation of their drag lines, backhoes, bulldozers, and dump
trucks allowed only a small amount of material to be discharged
into wetlands.
Moreover, these impacts were virtually identical to those
resulting from less-sophisticated projects, where the only
difference is the amount of material falling back into the
wetlands. These developers had sought a 404 permit, withdrawn
their permit application, and elected to proceed in a way they
felt would not be subject to regulatory review.
We're extremely concerned that our inability to provide 404
regulatory review of activities covered by the court's decision
will weaken our ability to ensure effective and consistent
protection of the Nation's health and the environment.
The decision creates an incentive for persons to once again
take advantage of regulatory loop holes. They'll be able to
design large projects that destroy hundreds of acres of
wetlands, harm neighboring property, and pollute streams and
rivers in a way that precludes effective Clean Water Act
review.
This review is not aimed at preventing development, but
instead is intended to minimize pollution and ecological
damage, as well as provide appropriate mitigation to offset
environmental harm.
To quickly update you on two other areas covered in the
Administration's wetland plan, wetlands mitigation banking is
an innovative, market-based way for landowners to effectively
and efficiently compensate for unavoidable wetland impacts. Our
issuance in November 1995, of a Federal mitigation banking
policy has facilitated the establishment of mitigation banks
nationwide. There are now about 200 mitigation banks that have
been approved or are under development. We believe that well-
designed, professionally managed mitigation undertaken by
persons with a strong incentive to achieve lasting results will
substantially improve the disappointing record of compensatory
mitigation to date.
I'll conclude at this point, Mr. Chairman.
Senator Inhofe. Thank you, Mr. Wayland.
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Senator Inhofe. As you probably heard the bells ringing,
Senator Hutchinson is going to go and vote and come right back,
so we're going to go ahead and continue for a few more minutes
here.
Let me start by asking Mr. Davis the question. In your
testimony, both your written testimony and your oral testimony,
you talked about the 14 days as the average time it takes the
Corps to approve a general permit and 104 days for the approval
of individual permit, but I've heard all kinds of scary stories
from the field saying it has been much, much longer than that.
One of the reasons that I understand is that it takes the
Corps quite a number of days before it decides when an
application is complete, so that you don't start the clock
running until that point, and then maybe after that point it's
104 days.
Now, I would like to ask you, have you done any studies to
determine how long it is from the time the application is first
submitted and is granted, not when it's accepted as an
application of proper form?
Mr. Davis. I don't think, Mr. Chairman, we've done any
specific studies. We have, though, encouraged our field,
through training and guidance, to expedite the process and to
not allow this initial phase, which is obviously very important
to get a complete application before we can go out with a
public notice and advertise to the public the proposed project,
we have encouraged them to keep that moving.
If you look at the literally tens of thousands of actions a
year, I'm sure there are some abuses of that. But, on balance,
when you look at the way the program is working----
Senator Inhofe. It's striking an average here. If it's 104
days, do you think that maybe at an average it would take 200
additional days from the time it's submitted until it's
considered to be complete?
Mr. Davis. Absolutely not. The law requires us to publish a
public notice within 15 days of complete application. My
experience has been that a large majority of them come in
relatively complete and we're ready to go with that and we meet
that 15-day requirement. So I think it would be much less than
200 days.
Now, there are projects that are very large projects----
Senator Inhofe. No. I'm talking about just average,
because----
Mr. Davis. No. On average it would not be 200 days.
Senator Inhofe. This is my concern. I know there are
exceptions. All right.
Mr. Davis, I'm concerned also about the decision to
eliminate Nationwide 26 permits. This option was not included
in the proposed regulations last June, yet you went forward
with it in December without requesting any comments, so I'd
have to say: when did the Corps first consider eliminating the
permit, and when was that decision made?
Mr. Davis. You really have to go back to 1993 when an
inter-agency team put together the Administration's wetlands
plan. One of the 40 initiatives in that plan was to eventually
move away from Nationwide 26, as we had it in a nationwide
permit format, and move to more regional activity-type permits.
Senator Inhofe. But if it was considered before June 1996,
then why was that not included in that report as an option,
listed as an option?
Mr. Davis. That's a good question. We laid out what we
thought was a starting point for a reasonable approach. In
fact, we did propose various options for Nationwide 26 in the
proposal, and that involved various scenarios for acreage
thresholds and a way that we could potentially consider
ratcheting down on Nationwide 26.
We were becoming increasingly concerned that that permit
didn't meet the plain words of section 404(e) that I described
in my oral statement.
Senator Inhofe. Well, let me ask you, Mr. Wayland, a
question concerning the Tulloch rule.
In your testimony--and I'll quote this now--it says, ``The
Government is compelled to comply with the terms of the court's
injunction.'' And, ``The agencies are continuing to coordinate
closely with our field staffs to ensure that we comply with the
injunction, pending any further rulings in the case.''
There have been reports that field staff are saying, ``Yes,
Tulloch was overturned, but the Government is appealing, and if
you engage in any activity during this period of time, then if
they're successful in this appeal we'll go back and find you in
violation.''
Is this accurate or inaccurate?
Mr. Wayland. That's completely inconsistent with the
guidance that the Corps and EPA have jointly issued. I'd
certainly be interested in any specific indication of those
problems, because we would like to follow up with field staff
in those instances.
Senator Inhofe. In the event that you are found to be wrong
in this case, would you say that it's a matter of fairness, it
would not be fair?
Mr. Wayland. I think for individuals to proceed on reliance
of the court's decision where a regulation has been set aside
by injunction, it certainly would not be fair at a later date
to penalize them should the district court decision be
overturned.
Senator Inhofe. If they started the process in accordance
with their understanding at that time--in other words, if the
court has not already overruled the activity you would consider
that to be a fairness issue if the Government went back later
and said you're in violation?
Mr. Wayland. Yes, Mr. Chairman, I would consider that.
Senator Inhofe. All right. We're going to stand in recess
for not more than 3 or 4 minutes, and I would instruct the
staff that when Senator Hutchinson, who I understand is coming
back right now, he'll continue, and at that point it will be a
matter of questions to the two of you.
So if we can recess for about 4 minutes, we'll be right
back.
[Recess.]
Senator Hutchinson [assuming the chair]. It's my
understanding, in order to expedite and allow us to continue,
that I'm being permitted to begin some questions until the
chairman returns.
First of all, let me--in my opening statement I made
reference to a couple of issues that I would like you to
address. No.1, in the 1993 Administration proposal, part of the
administrative proposal, as I understand it, which you've made
reference to, was that there would be an administrative appeals
process established, and that that was originally announced in
1993.
What has been done in the last 4 years to implement this
proposal, because, as I said in my opening statement, the Corps
of Engineers has, for whatever reason, engendered a lot of
resentment on the part of my constituents. We've got a lot of
Corps lakes. We've got a lot of wetlands, as the chairman made
reference to, in south and east Arkansas on the Delta. And the
permitting process has engendered a lot of frustrations, and
the lack of an appeals process has been, I think, a big source
of the frustration that my constituents have experienced.
And so, since this was recommended 4 years ago, what steps
have been taken to see that become a reality?
Mr. Davis. Senator those are good questions and very
important questions, and I have to say I guess I'm troubled
that we are up there with the IRS now in the image of the
Corps.
Senator Hutchinson. At least in Arkansas. I don't know.
We're working on it.
Mr. Davis. But I'd like to work with you to help
rehabilitate that image a little bit.
But we believe very strongly that an appeals process is
very important and, in fact, a lot of work has been done since
we announced that in August 1993. There were a lot of
infrastructure that had to be put into place or needed to be
put into place, and a regulation for things like job
descriptions for these positions. This is something brand new
to the Corps of Engineers.
Most of that work has been completed. We have proposed a
regulation a couple years ago. We are very near to being in a
position to finalizing that regulation. We could do that very
quickly. So a lot of work has been done.
But it truly does go back to how do we pay for this and how
do we balance this very good objective with other good
objectives. If we do this without a relatively small increase
in funding to staff this initiative, then we take away from
other parts of the program, and that means additional delays
for other segments that have to get permits and have to engage
the program.
So, as we looked at balancing these two things, we felt
that without additional resources, it would not be good for the
public.
We're talking about a relatively small amount of money--
about $5 million--to fund these positions and bring this up to
speed. We've been asking for it for about 2 to 3 years now.
It's in the President's 1998 budget. And if we get that, we're
in a position to move out very quickly and implement this very
important piece of the Administration's initiative. We think
it's very important.
Senator Hutchinson. If I heard you correctly, while you may
be saying it's very important, you're saying it's less
important than most everything else; that you went ahead--that
this was dropped on the priority list; that you felt that, in
the scheme of things of what you have to do in order to fund
this within your budget, that it wasn't all that important;
therefore, in 4 years it hasn't been done.
Is that an unfair characterization?
Mr. Davis. It's a matter of several very important things.
If you look at the beneficiaries of the appeals process, it
would be relatively few people, because relatively few people
get permits denied. We're talking about maybe 250 to 300 people
a year who have their permits denied who would then enter this
appeals process, and some other number who might challenge a
jurisdictional determination.
If you take people away from the permit evaluation or
processing piece then to implement this, then those people who
would never have a need to engage or enter into the appeals
process then will pay that price because there will be less
people to work on their permits, and that's the point.
Senator Hutchinson. Mr. Davis, I'm sorry, but, I mean, if
we're talking only 250 to 300 people per year that are going to
be appealing, it seems to me it would be a relatively simple
and inexpensive process to establish that kind of opportunity.
If, in fact, it is that small----
Mr. Davis. It's more than that, because there are two
pieces, Senator. There are two pieces, and that's the permit
denial piece, and then the administrative appeal proposal that
we have ready to go also allows individuals to challenge a
wetlands jurisdictional determination. That could literally
be--we do about 40,000 of those a year, so that could be a lot
of additional work on the Corps, and we're very concerned that
if we have to shift the resources to do that, then on balance
the people who are coming in and getting the permits----
Senator Hutchinson. We don't have it both ways here. So
we're not talking 250 to 300 people, we're talking 40,000
potential----
Mr. Davis. Potentially, if both pieces are implemented.
Senator Hutchinson. So when we talk about the importance of
an appeals process, we're talking about thousands of people who
would be impacted. And when we talk about the poor image that
the Corps has and the poor public relations that it has
demonstrated and the frustration that my constituents feel,
this is a much bigger issue than 250 to 300 people.
Mr. Davis. It's bigger than 250 to 300 people, but, again,
we've very carefully looked at this and tried to make some good
decisions based on how we can run the program, given the
resources we have, and looked at the positive sides and the
negative sides of doing both. Our determination right now is
that it would not be a good thing without additional resources.
We are very interested in doing this.
Senator Hutchinson. Mr. Chairman, I've got other questions,
but I'll be glad to yield back to you.
Senator Inhofe [resuming the chair]. Go ahead and continue
any questions you have.
Senator Hutchinson. You've given your conclusion that
you're very interested in it but you decided it's not important
enough to do right away until Congress gives you more money. I
will say that if you're really interested in public perception,
public relations, and improving the way the Corps is perceived
around the country, then I think this should be a high
priority. It is to me and it is to obviously a lot of
individuals in Congress. I will be introducing that
legislation.
The other thing I mentioned in my opening statement was in
regard to the 500 linear feet and the change in the regulations
regarding the stream beds.
It is my understanding that that regulation, which will be,
I think, very difficult for many to comply with, was not in the
original proposed draft regulation upon which public comment
was received.
Was there an opportunity for the public to give comment on
that new regulation?
Mr. Davis. You are correct in saying that it was not in the
original proposal. It was an outgrowth of the process, however.
Many people raised that. Our own field staff at times had
raised that as an issue.
Let me give you an example why it was important. Under
the----
Senator Hutchinson. Mr. Davis, I don't mean to be rude, and
I have limited time, but my question was: did the public have
an opportunity to comment on that proposed--not the validity of
it, not the merits of it, but whether or not the public had the
opportunity to comment on it.
Mr. Davis. The public did, on their own initiative, comment
on it, and we had six or seven public hearings. I'm not sure,
and I can check if----
Senator Hutchinson. Was there a proposed regulation
submitted to the public in which they had opportunity to
comment on a proposed regulation?
Mr. Davis. No, sir. Not for that particular piece.
Senator Hutchinson. Mr. Chairman, thank you. I'll yield.
Senator Inhofe. Well, let me just get back. I've already
asked my questions, but, Mr. Wayland, I am still concerned
about the reports that we get from the field saying that the
Tulloch rule was overturned, but since the Government is
appealing it, and if somebody on that overturn is out doing a
project and it is overturned you'll go back--at least the
threats are in the field you'll go back and cite them for a
violation. And you were saying you didn't believe that was
true.
Let me read to you from written testimony, one we'll be
hearing from, from Stormwater Management. ``Irrespective of the
guidance, NAFSMA--'' that's the stormwater organization, and
we'll have that in the second panel--``member agencies and
others have been informed by the Corps that, although a permit
would not be needed at this time, the agency would have to
cease operations and apply for a permit if the decision was
stayed or overturned on appeal or faced potential enforcement
actions.
``A copy of the letter from the Corps's Omaha district to a
local agency notes clearly that if the ruling is stayed or
reversed the Corps would again regulate activities such as
those proposed. The letter further stated that if this occurs
and your project has already begun, the Agency would be
required to stop work and obtain authorization.''
Of course, at that point any number of things could happen.
They could find that the permit wouldn't be granted and they
would be found then in violation.
Do you still feel that your response to the question was
accurate?
Mr. Wayland. Absolutely, Senator. Let me submit a copy of
our guidance to you for incorporation into the record.
[The document referred to follows:]
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Senator Inhofe. It will be placed in the record, but the
letter that I'm referring to, are you saying that you agree
with that letter?
Mr. Wayland. Senator, you posed a question about the
vulnerability of a project sponsor to enforcement. The
description you have just read pertains to whether or not a
permit would be required if the--and we're making--I'm making a
distinction. Our guidance makes a distinction between
enforcement--that is to say penalties or administrative actions
to rectify a violation of the Clean Water Act--versus the
permit requirements, again attaching to the activities that may
have begun during the term of the district court's decision but
which might be--where the state of the law might very well
change after the appeals court rules.
So if activity was started on a project for which the
appeals court later determines that section 404 applies and a
permit is required, yes, we would require a permit, and that's
stated clearly on page 2 of the guidance under the caption,
``New or pending permit actions.''
Paragraph 4 of our guidance memorandum addresses
enforcement actions.
Senator Inhofe. This is something that is a very serious
thing that we must consider. It might even precipitate some
legislation on our part.
I thank the panel very much. I'm not sure, but I think
there is another--Senator Sessions.
Senator Sessions. I don't really have any questions at this
time, Mr. Chairman, but I would just associate myself with the
concerns that have been addressed.
I think, when you're dealing with people's property and the
Government sets new regulations that impact the use of the
land, I think we ought to have an appropriate opportunity for
people with interests in that regard to express themselves.
In my State people are very concerned about these matters.
We'll be looking at them very carefully. I thank you for the
leadership that you are giving us in discussing it openly and
so we can make some good decisions regarding these issues.
Senator Inhofe. Thank you, Senator Sessions.
We thank the panel very much.
We'd now like to call the second panel. We have Mr. Darrel
Seibert, president of the Seibert Development Corporation,
Hudson, OH, and the National Association of Homebuilders; Mr.
James Noyes, assistant director, Los Angeles County Department
of Public Works and the organization I just referred to in a
question--I hope that you'll address that in your remarks;
Professor Donald Siegel, professor of earth sciences in
Syracuse; Mr. Don McKenzie, conservation policy coordinator,
Wildlife Management Institute; Mr. Derb Carter, Southern
Environmental Law Center, Chapel Hill, NC; and Mr. Thomas W.
Winter, president, Winter Brothers Material Company, St. Louis,
MO, for the National Aggregates Association.
We'll go ahead and start in that order. We'll first
recognize Mr. Seibert.
STATEMENT OF DARREL SEIBERT, PRESIDENT, SEIBERT DEVELOPMENT
CORPORATION, HUDSON, OH, ON BEHALF OF THE NATIONAL ASSOCIATION
OF HOMEBUILDERS
Mr. Seibert. Thank you very much, Mr. Chairman.
Ladies and gentlemen, my name is Darrel Seibert from Akron,
OH. I'm here to testify today on behalf of the 190,000 member
firms of the National Association of Homebuilders. The vast
majority of NAHB members are small business owners.
I would like to talk about two related but separate issues
involving recent regulatory and judicial developments
concerning wetlands. The two issues are the regulatory decision
by the U.S. Army Corps of Engineers to eliminate Nationwide
Permit 26 and the recent court decision overturning the Tulloch
rule. I will address them in that order if I have time.
First, I would like to talk to you about the economic
impact to our industry resulting from the Corps' changes made
to NWP 26. Since the NWP 26 was first authorized in 1977, it
has remained essentially the same, allowing the wetland
conversions from 1 to 10 acres using the NWP 26 permit.
But the Corps' recent change to NWP 26 has created a great
deal of uncertainty for our industry. The Corps received over
400 comment letters on changing NWP 26. I'm told that 70
percent of these letters agreed with NAHB's position--to leave
the permit as it has been since 1977.
The majority of the local Corps districts who filed
comments also supported no changes to NWP 26. Nonetheless, the
Corps ignored those comments and on December 13, 1996, issued a
final rule that reduced the threshold limits, as you know from
testimony, from 1 acre and 10 acres to \1/3\ and 3 acres.
The Corps also decided that the new, much more restrictive
NWP 26 will be completely eliminated in 18 months.
I want to emphasize that, without these permits or a viable
alternative solution, many of our members will be forced out of
business. The scarcity of lots and homes that will be caused by
this rule change will cause home prices to dramatically
escalate and cause many Americans to lose the opportunity to
own a home.
I would like to emphasize that most of the wetlands that
builders convert are marginal pot holes in fields. They are
created many times by a truck or dozer leaving ruts or blocked
small swales where cattails grow. As a developer, I assemble a
number of these small depressions, the marginal wetlands, that
in total can add up to an acre and be filled to allow road or
lots to be created.
I believe most people envision big dozers filling many
acres of pristine water when they think about the NWP 26. The
vast majority of wetlands are not pristine wetlands being dozed
full of dirt.
The Corps decided to make many of these important and
substantial changes to NWP 26 without public notice or hearing,
which is a violation of SBREFA.
The Corps claims that it made a decision to phase out NWP
26 based on comments to the proposed rule expressing concern
that the old NWP 26 allowed unacceptable wetland losses. Our
numbers from three reliable sources show there was actually a
net increase in wetlands created under the old NWP 26.
In place of the 6,500 acres of wetlands converted under the
old NWP 26 in 1995, 7,800 new acres of wetlands were created or
restored. The net increase was even better in 1996.
If the old NWP 26 created or restored more wetlands than
were impacted, how can the Corps also argue that the permit
allowed too great an impact on wetlands?
The Corps suggests the new rule will increase the number of
individual permits it will have to process by 10 percent. NAHB
believes the number will be far greater. We believe the Corps
did not consider the potentially significant increase in
individual permit applications resulting from the maximum 500
linear feet of stream disturbance rule change that they added
at the very end.
Mr. Davis from the Corps indicated that if no action under
NWP 26 was taken within 45 days you could proceed and that the
general permits are processed in 13 days. This is not my
experience in Ohio.
Why did NAHB file suit on NWP 26 rule change? NAHB filed
suit because the U.S. Army Corps of Engineers chose to
significantly modify and eliminate NWP 26 without proper public
notice, comment, or review, or showing us workable replacement
permits which would assure us that we could continue our
businesses.
Further, NAHB feels it is necessary to support a
legislative solution to the problem caused by the modification
and elimination of NWP 26.
Congressman Neumann is working on the legislation in the
House, as I understand it.
On a proactive basis, to create more wetlands and to meet
the national goal of no-net-loss, NAHB is pursuing a mitigation
banking program which promotes restoring wetlands while giving
builders the degree of certainty needed to conduct our
business.
Builders have demonstrated they have the knowledge and
ability to restore and create new wetlands to create those lost
in the growth process.
Senator Inhofe. Mr. Seibert, we're running out of time
here. If you could make a real quick conclusion, we'll go on
with the other witnesses.
Mr. Seibert. Well, we feel it's essential that we are
allowed to continue. To put a mitigation banking program in
effect is going to take us a minimum of 5 years. We're working
on that as hard as we possibly can, but we feel that we have an
opportunity to work with the environmental lobby and the
community and to allow us to continue to work on our mitigation
banking program, and also to extend the period of time. The 18
months that they want to cutoff our permits creates the
uncertainty that we feel is devastating to our industry.
Thank you.
Senator Inhofe. Thank you, Mr. Seibert.
Mr. Noyes.
STATEMENT OF JAMES NOYES, ASSISTANT DIRECTOR, LOS ANGELES
COUNTY DEPARTMENT OF PUBLIC WORKS, ON BEHALF OF THE NATIONAL
ASSOCIATION OF FLOOD AND STORMWATER MANAGEMENT AGENCIES
Mr. Noyes. Thank you, Mr. Chairman. Good morning. It's a
pleasure to be here today.
One of the problems that flood control agencies around the
Nation face is the maintenance of what we call ``natural
channels.'' These are channels with levees typically on either
side where the ground in between is natural in origin. Over a
period of time, what will happen is deposition of sediment will
occur in these channels, vegetation growth will occur in these
channels. For the older channels in the country, they were not
designed to accommodate these kinds of features.
It's essential that, if those facilities are to provide the
intended flood protection, that that material must be removed,
and for years we have been able to do that.
With the introduction of the Tulloch rule in 1993, the
ability of flood control agencies to maintain those channels
became greatly impaired. When the channels aren't maintained,
their ability to carry floodwaters decreases with the
corresponding increase in the flood hazard threat to adjoining
communities. We find that this is an intolerable situation, and
we must go out and we must do the work.
We felt, along with the plaintiffs, that the Tulloch rule
was, in fact, our exceedance of the Corps' understanding of the
Clean Water Act. The Association filed an amicus brief in
support of the plaintiffs and were very relieved as to the
court action thus far in the proceedings. We are following
those developments very closely.
What we propose is that the Congress enact an exemption to
flood control agencies for flood control facilities that are
manmade. In those instances where we've gone in and have
constructed a flood control facility, that we would be exempted
from the provisions of 404 and, in fact, be allowed to maintain
those facilities such that we maintain the ability of them to
provide the flood protection to the community.
Such an exemption, in fact, was approved by the House a
couple years ago in one version of the Clean Water Act.
We have talked a little bit this morning about nationwide
permits. When the new nationwide permit was announced here a
year and a half or so ago, we were very excited because there
was to be a nationwide permit that we thought would cover our
situation, Nationwide Permit 31. However, the way the rule has
been published and my interpretation of the rule, it puts us in
no better position, I feel, than where we were a couple of
years ago.
We have a case in my county, Los Angeles County, where we
began discussions with the Corps and other Federal and State
regulatory agencies in November 1995 to come up with a permit
and a program to allow us the maintenance of these channels. We
are now currently almost in July 1997, 20 months later, and we
still don't have any indication from the Corps or the
regulatory agencies as to what any permit requirement might be.
Furthermore, the Corps has told us that they feel in our
situation it's better to go ahead and try to get a general
permit instead of trying to use Nationwide Permit 31.
So we are very anxious and, like I say, we strongly
recommend that there be a Federal law exempting flood control
facilities from the 404 provisions.
The ironic fact about this is that in many cases these
channels were built by the Corps of Engineers with counties and
other local government being what's called the local sponsoring
agency, which assume maintenance responsibility upon completion
of the project. Now we find--the Corps finds themselves in the
position where I get documents from the maintenance staff of
the Corps telling me, ``Clear out the channels, remove the
vegetation, you're losing flood protection, you're causing a
threat to the community,'' yet the regulatory people in the
Corps are telling me, ``No, you can't do that,'' or we're going
to have to go through some lengthy permit process with who
knows what kind of expensive and time-consuming mitigation
measures.
That concludes my statement. Thank you very much.
Senator Inhofe. Thank you, Mr. Noyes.
Dr. Siegel.
STATEMENT OF DONALD SIEGEL, PROFESSOR OF EARTH SCIENCES,
SYRACUSE UNIVERSITY, SYRACUSE, NY
Mr. Siegel. Mr. Chairman and members of the committee, I'm
Donald Siegel, professor of earth sciences at Syracuse
University. My academic and research specialization is wetland
hydrology and chemistry, the study of how water and chemical
substances move in and out of wetlands systems.
I was a member of the National Academy of Science panel on
wetland characterization, which completed its report in late
1995, and I gather that I was invited today to answer questions
on the scientific conclusions reached by NAS panel related to
the science and the regulation of headwater and isolated
wetlands.
Although I have been in formal contact with other members
of the former committee regarding the issues at hand, I do
submit this testimony entirely on my own behalf.
The major issue regards Nationwide 26, recently
reauthorized and revised by the Corps. Nationwide 26 regulates
headwaters and isolated wetlands separately from wetlands
directly connected to navigable surface water bodies. The
implication of this regulatory separation is that headwater and
isolated wetlands are scientifically less valuable with respect
to maintaining habitat, protecting water quality, and
controlling floods than are wetlands directly connected to
streams and rivers.
Wetlands science in the past 10 years or so has shown
otherwise. The NAS wetlands panel recognized that small,
isolated wetlands can be very important to maintain regional
ecosystem health and surface water quality and control some
flooding. For example, isolated prairie pothole wetlands in the
north central States constitute less than 5 percent of the
geographic area but support a large percentage of the total
populations of the most abundant waterfowl.
Isolated wetlands and headwater areas, in general,
effectively remove suspended sediment contaminants and harmful
nutrients from surface waters. Indeed, there is mounting
scientific evidence that small-scale wetland disturbance in the
watersheds of the smallest tributaries of streams affects
stream water quality proportionately more than the same amount
of disturbance along larger reaches of streams.
In wetlands scientific circles, it is now being argued that
the greatest emphasis on wetland protection should, in fact, be
placed on maintaining headwater and isolated wetlands, and that
wetland size may be less important than wetland length.
However, headwater and isolated wetlands may be less important
or have ``less value'' in some regions than in other regions of
the country with respect to sustaining biological resources
deemed important by society.
For example, the NAS Wetlands Committee felt that it is
important to preserve prairie pothole wetlands in the Great
Plains States and playa lakes and vernal ponds in the arid
western states because these places are effectively the wettest
parts of a generally dry landscape; therefore, they have very
special and important biochemical and water quality functions
within the entire watershed context. However, some isolated
wetlands in the humid northeastern or north central States may
be less important than those in dry places with respect to
water quality and biological habitat because these wetlands
occupy a much larger part of the regional landscape.
Previous to the Corps' 1996 revision to Nationwide 26,
wetlands less than 1 acre in size could be effectively filled
without notifying the Corps, and the cap on maximum allowable
acreage for each wetland fill was 10 acres. The 1996 revision,
effective for 2 years, now requires that the Corps be notified
of any proposed filling greater than \1/3\ of an acre in size,
and a maximum allowable fill is 3 acres.
The Corps' intent in the Nationwide 26 revision is to
replace the current 2-year provisional regulations with
activity-specific replacement general permits, regionalized to
best-achieve balanced wetland protection. I agree with
replacing the current permit process with regional activity-
specific general permits. The Corps has moved in the right
direction to produce a scientifically credible permit system
while maintaining fairness to wetland users. However, the
Corps' task to regionalize and develop activity-based
permitting will be scientifically formidable.
First, it is difficult to assign quantitative thresholds
governing acceptable limits to water quality, habitat health,
and potential for flooding caused by individual wetland loss.
Impacts on these wetland ``functions'' are often cumulative and
unidentifiable until substantive loss has already occurred.
Second, regionalization can be scientifically made according to
ecological, hydrologic, landscape, and climatic criterion. I
urge the Corps to actively solicit scientific advice on which
classification method of these best suits the regulatory
process. The Corps should also quickly and publicly define what
activities they expect to consider in their evaluation process
in the future.
In summary, I think that the new provisional changes to
Nationwide 26 are appropriate and will lead to a more
scientifically meaningful and politically sound regulation of
our Nation's wetlands. I applaud the Corps' effort to both
constrain the piecemeal loss of isolated and headwater wetlands
by temporarily implementing stricter wetland regulations while
concurrently working to develop scientifically meaningful
activity-based regionalization of Nationwide 26.
I think the Corps has struck a balanced position with
respect to wetland regulation somewhere between what I view are
extreme positions of preventing all further nationwide wetland
loss to allowing unrestricted filling of isolated and headwater
wetlands.
I thank the Committee on Environment and Public Works for
soliciting my views, and I welcome any questions.
Senator Inhofe. Thank you, Doctor Siegel.
Mr. McKenzie.
STATEMENT OF DONALD F. McKENZIE, CONSERVATION POLICY
COORDINATOR, WILDLIFE MANAGEMENT INSTITUTE
Mr. McKenzie. Thank you, Mr. Chairman.
The Wildlife Management Institute appreciates this
opportunity to support the conservation of wetlands of national
and international importance.
I am before you today as a professional waterfowl biologist
and as a private landowner. I own and reside on nine rural
acres in rural Loudoun County, VA. One-third of my property is
wetlands, thus I am now subject to some of the very regulations
that are under consideration here today. Yet, wetland
regulations have not impeded my or my family's use of our
property at all. We've met all our personal goals for the
property in the several years we've lived there.
WMI's primary points are simple. First, drainage and
excavation of wetlands needs to be clearly regulated by section
404 of the Clean Water Act.
Second, small wetlands are vital habitat for many species
of wetland-associated wildlife and also should be protected by
section 404.
Third, the interests of millions of American sportsmen and
sportswomen are directly affected by the fate of wetlands.
WMI is disappointed that the Tulloch rule was overturned.
While we have no opinion on the legal merits of that case, our
professional resource management judgment is that drainage and
excavation are leading causes of wetland degradation and can be
as damaging to wetland functions as deposition of fill
materials.
Therefore, we strongly believe that the Clean Water Act
should regulate drainage and excavation of wetlands, whether by
administrative or legislative action.
WMI applauds the recent action of the Corps to phaseout
Nationwide Permit 26, which has provided virtual automatic
approval for all activities on wetlands smaller than 10 acres.
This permit constituted the single largest and most damaging
loophole in the Clean Water Act's regulatory program and has
been largely responsible for impeding the achievement of no-
net-loss of wetlands.
Furthermore, Nationwide Permit 26 has been a source of
inconsistency between the Clean Water Act and USDA's
Swampbuster authority, which does not provide an acreage
exemption. WMI supports efforts to make section 404 and
swampbuster as consistent in favor of conservation as
reasonably possible, given the fundamental differences between
those two programs.
Suitable habitat is the fundamental requirement of all
wildlife. For example, ducks require duck habitat. During the
breeding season, duck habitat consists of a mixture of small,
medium, and large wetlands with water, along with upland
nesting cover in the same places at the same time. If any of
these habitat elements is missing, ducks and other wetland
wildlife cannot survive, much less thrive.
History proves that abundant duck habitat depends on
Federal measures to protect wetlands. Intensive wetland
drainage in the United States that peaked during the 1960's and
1970's, combined with new fencerow-to-fencerow farming
techniques, resulted in two decades of declining duck
populations that reached historic lows in the 1980's. Only in
the last 4 years has the duck decline apparently been stemmed
and even reversed.
The United States recently is enjoying increasing duck
numbers, improved duck hunting, and liberalized hunting
seasons, which demonstrates that conservation does pay off.
Two actions of the Federal Government have been responsible
for ensuring that adequate habitat was in place when the water
finally returned to the prairies. First, Federal protection of
remaining wetlands has greatly reduced the rate of wetland
losses. Section 404 protects the public interest by prohibiting
the filling of wetlands. The USDA disincentive program, known
as ``swampbuster,'' attaches wetland conservation strings to
the voluntary receipt of public agriculture subsidies.
While neither program individually provides adequate
protection for all important wetland types, the two programs
have been mutually reinforcing, with positive conservation
results.
Second, Federal investments in restoration of degraded
wetland habitat are making meaningful progress toward
rebuilding the Nation's wetland habitat base. Wetland
conservation programs such as the North American Wetlands
Conservation Act, the conservation reserve program, the wetland
reserve program, and Fish and Wildlife Service's Partners For
Wildlife program are nearly offsetting the remaining rate of
wetland losses.
The United States now is approaching the hard-earned
national goal of no-net-loss of wetland functions. This
combination of Federal actions--protection, and investment--is
proving successful at rebuilding important public resources;
however, this hard-earned progress can be lost quicker than it
was gained. A reduction in either of these Federal actions is
certain to catalyze the resumption of net loss of wetlands.
That development would, in turn, cause populations of ducks and
other wetland wildlife to decline once again.
The interests of duck hunters are directly dependent on
duck populations, which, in turn, are directly dependent on
abundant duck habitat. A foundation of scientific wildlife
management is that harvest by hunters must not exceed the
ability of the species to sustain itself. Thus, the Fish and
Wildlife Service is charged with carefully regulating hunting
seasons depending on the best available data on population
status and trends.
I have attached to my written testimony the Service's
adaptive harvest management framework that is used to determine
how liberal or how restrictive the hunting season will be each
year based on that year's waterfowl populations.
I see that my time is up. I will cut my testimony short
here, merely concluding that those who support hunting,
hunters, and other wildlife enthusiasts cannot have it both
ways. Waterfowl hunting cannot be maintained without continued
Federal protection and investment in wetland resources.
Thank you.
Senator Inhofe. Thank you, Mr. McKenzie.
Mr. Carter.
Senator Chafee. Mr. Chairman, I have to go and will be in
and out. First I wanted to note that Professor Siegel is a
University of Rhode Island graduate, so we welcome you. Second,
I think the points that have been made here have been
excellent. Mr. Chairman, I regret that I kind of will be back
and forth. I think it's interesting that the protection of the
small wetlands, the stress that's given to that seems to be
very important. It isn't just the big wetlands that count, it's
the small wetlands.
Thank you very much.
Senator Inhofe. Thank you, Senator Chafee.
I'm going to go ahead and continue this. I believe that
Senator Hutchinson will be back, and then I'll run and vote and
make this happen.
Mr. Carter.
STATEMENT OF DERB S. CARTER, JR., SOUTHERN ENVIRONMENTAL LAW
CENTER, CHAPEL HILL, NC
Mr. Carter. Mr. Chairman, members of the subcommittee,
thank you for the invitation and opportunity to testify today.
My name is Derb Carter. I'm an attorney with the Southern
Environmental Law Center in Chapel Hill, NC. For over 15 years,
I've represented citizens, communities, and the fishing
industry to protect wetlands in the southeast. I've seen the
Federal wetlands protection program up close and on the ground.
I was a lead attorney in the Tulloch case in North Carolina.
What I would like to do today is focus on the Tulloch rule
and, in any remaining time I have, give you a few perspectives
on Nationwide Permit 26.
But even before I do that, let me give you a quick overview
and perspective of things going on in North Carolina as we
speak.
Looking back historically, we've lost, as many States, a
great number of wetlands. North Carolina has lost about one-
half of its historic wetlands. The remaining wetlands are
primarily coastal, surrounding the Nation's second-largest
estuary and the primary fish nursery area for the entire mid-
Atlantic region.
Like the Chesapeake Bay to the north, our estuaries are
suffering from excessive pollution, particularly nutrient
runoff from the surrounding lands. This is leading to extensive
algae blooms, massive fish kills now in the millions of fish in
our coastal estuaries, and the recent emergence of a toxic
algae form that is not only killing fish but leading to public
health advisories in the coastal area of North Carolina.
We're in the third year of a total moratorium on the
issuance of commercial fishing licenses in North Carolina due
to precipitous declines in fish stocks, much of it related to
water quality degradation and habitat loss, including wetland
loss.
The remaining wetlands in North Carolina, as many other
coastal States, are the first line of defense to protect our
remaining wetland quality and fisheries habitat. The State of
North Carolina has recently issued comprehensive rules under
section 401 of the Clean Water Act for the first time to put in
place a wetland protection and mitigation program.
The State of North Carolina is working in full partnership
with the Corps under its section 404 authorities to protect,
mitigate, and restore wetlands in the State.
This is the setting in which the Tulloch case arose in
coastal North Carolina, and it's important to understand the
facts of that case to understand the reason for the rule. In
that case, developers with the specific intent to circumvent
permit requirements ditched and drained hundreds of acres of
wetlands adjacent to North Carolina's estuaries. They used
modified equipment and took great care to discharge only small
amounts of dredged material back in the wetlands during their
ditching and clearing of the site.
When this case was brought to our attention after the Corps
determined that these were no longer wetlands and development
could proceed with no environmental review or permits, we
examined the law, and it appeared clear to us that these
wetland drainage activities should require a permit. To reach
this conclusion, one need not go beyond the plain language of
the statute.
Section 301 of the Clean Water Act prohibits the discharge
of any pollutant. Section 502 defines the discharge of
pollutant to include any addition of any pollutant,
specifically including dredged material from any point source
into a water of the United States, including wetland. Section
404 authorizes the Corps to issue permits for the discharge of
dredged or fill material, with no exemptions based on the
quantity discharged.
Moreover, section 404(f) states that any discharge of
dredged or fill material in a wetland that is incidental to any
activity having as its purpose bringing a wetland into a use in
which it was not previously subject, where the flow and
circulation is impaired or the reach of the water is reduced,
shall be required to have a permit.
Certainly the law required a permit for the discharges of
even small amounts of dredged material in these coastal North
Carolina wetlands to convert them to uses that not only
eliminated the wetlands but harmed the estuaries.
We were able to settle the case with the promulgation of
the Tulloch rule. We believe it's an imminently sensible rule,
fully consistent with the purpose of section 404 to protect our
remaining wetlands from unregulated and unmitigated
destruction.
The decision in the AMC case was unexpected and, to our
minds, unfortunate. And, like the Corps, we disagree with that
district court decision and are appealing it.
One need not look further than the two developments that
gave rise to the Tulloch rule to forecast the environmental
damage that will result if this decision is upheld. The impacts
of drainage and conversion of the 700 acres of wetlands of
these two developments destroyed important fish and wildlife
habitat. The State of North Carolina has permanently closed the
adjacent waters to the taking of shell fish. Neighboring
properties are being flooded. The persons who bought property
at these two drained developments are suffering extensive
flooding and are turning to the county for public assistance to
address their flooding problems.
So, in conclusion, I would say: what should Congress do? As
this case proceeds through the courts, my respectful
recommendation is to let the judicial process take its course.
But when Congress does reauthorize section 404, don't draw a
distinction between filling and excavating and a regulatory
program and explicitly include these activities that have
resulted in the destruction----
Senator Inhofe. Thank you, Mr. Carter.
We're going to have to recess at this point or I'm going to
miss this vote. I thought that perhaps Senator Hutchinson would
make it back in time.
So, Mr. Winter, we'll hear your testimony as soon as he
returns. He'll be right back.
We're in recess.
[Recess.]
Senator Sessions [assuming the chair]. We're going to
start. Senator Inhofe has asked that I chair the committee and
finish hearing the testimony, and he'll be back shortly. It's
just going to be one of those days with the votes. I guess
that's what they pay us for.
I believe, Mr. Winter, we'll be glad to hear from you at
this time.
STATEMENT OF THOMAS W. WINTER, PRESIDENT, WINTER BROTHERS
MATERIAL COMPANY, ST. LOUIS, MO, ON BEHALF OF THE NATIONAL
AGGREGATES ASSOCIATION
Mr. Winter. Thank you, Senator.
I'm Thomas W. Winter, president of Winter Brothers Material
Company in St. Louis, MO, and chairman of the board of the
National Aggregates Association.
First, I want to thank Chairman Inhofe, Senator Graham, and
the members of this subcommittee for providing me with the
opportunity to appear here today.
As chairman of the board of directors of National
Aggregates Association, NAA, I am here today to speak on behalf
of the member companies that make up our association. I want to
emphasize our willingness, not only as an association but as an
industry, to be helpful to the members of this subcommittee, as
well as the entire House and Senate.
We are committed to providing you with any information you
may need or in answering any questions in this process. We
regret that the short notice to which we have been given an
invitation to testify has not provided us with the time we
would normally need to provide detailed information. We are,
however, preparing a detailed submission for use in the
official record of this hearing.
We are truly an organization focused on the delicate
balance between the interests of small business and its agenda
and the interests of sound policymaking in our Nation.
NAA is an international trade association representing
producers of construction aggregates, which is the largest
mining industry in the United States.
Our industry produces over two billion tons of sand,
gravel, crushed and broken stone sold annually in the United
States dedicated to the maintenance and development of our
Nation's infrastructure. Of course, wetlands is a very
sensitive issue to our industry, and laws and regulations
pertaining to activities that may impact them are important to
us, as well.
Today I would like to touch on two related issues involving
recent wetlands regulatory and judicial developments, not
because we as an industry have mastered our position on these
issues, but because, due to the grave uncertainties and
confusion surrounding these issues, we as an industry have not.
Members of the subcommittee, I would like to briefly
address the controversy surrounding the Tulloch rule and the
Nationwide Permit 26. These two issues serve as a very real
example of the many uncertainties and confusion that we as an
industry must operate under in a regulatory system that has
become all too overburdensome and over-cumbersome.
The Tulloch rule and Nationwide Permit 26 are symptoms of
the overall problem and are merely emblematic in nature. This
confusion and uncertainty are of great concern to the
aggregates industry and, unfortunately for our industry, the
communities we serve. Confusion in the sense of misinformation
or no information often comes from Federal agencies to State
and field representatives. As alarming and also of great
concern to us is the sense of uncertainty and confusion we
believe exists among those who actually regulate us.
Can I continue to operate, prosper, and continue to be an
important part of our Nation's highway and infrastructure
program should this environment adversely affect our trust and
confidence in the system?
As such, I'm here to ask for consideration of the
following:
Congress should consider the elimination of the
bureaucratic labyrinth in which our industry currently operates
as it relates to wetlands.
Congress should clarify current law and regulations which
have been poorly implemented and communicated to the regulated
community.
And Congress should take notice of NAA's sincere and
dedicated commitment to work and participate in this process.
The first issue I'd like to mention is the Tulloch rule.
The statutory foundation of the Federal wetlands program,
section 404 of the Clean Water Act, regulates the discharge of
dredged or fill material into the water of the United States at
specific disposal sites. In August 1993, the Corps of Engineers
adopted the Tulloch rule, thereby redefining the term discharge
of dredged material to include incidental fall-back. Because
excavation and land clearing almost inevitably results in some
sort of incidental fall-back, and because under the rule that
fall-back now constitutes a discharge of dredged material, the
Tulloch rule made all removal activities subject to a permit
requirement.
The Tulloch rule is an example of just one of the many
uncertainties that has caused confusion and stymied our
industry's growth and prosperity.
While NAA supports the notion that additional activities
harmful to wetlands should be regulated, the association
opposes illegal effort to go beyond the statutory authority of
the Clean Water Act and expand through regulation of a program
not promulgated by the Nation's elected representatives.
The proper forum to expand protection for wetlands is in
Congress, where the expanded coverage can be combined with
reasonable reform of the current regulatory program and to
receive congressional oversight. Only then can we provide more
protection for environmentally sensitive wetlands, balancing
the economics and the environmental tradeoffs, as well as more-
efficient permitting process.
NAA, along with the American Forest and Paper Association,
the American Road and Transportation Builders Association, the
National Association of Homebuilders, and the National Mining
Association challenged this rule by successfully making the
argument that Tulloch was contrary to the intent of Congress
and went beyond the scope of authority provided by Congress to
the Corps of Engineers under the Clean Water Act.
NAA is pleased with the decision of the Federal district
court, and we will continue to work with allied organizations
to ensure that it is upheld.
Let me, however, be clear: the decision does not mean that
we are not regulated as an industry. We are regulated by a
myriad of local and State permits and regulations. We view the
court's decision as a reasonable judicial opinion and we concur
with the Court's ruling that the regulation expanded beyond the
intent of the Clean Water Act.
As alarming, the NAA has received numerous complaints and
inquiries, all gravitating around the notion or misinformation
that stated the ruling only applied to plaintiffs in the
lawsuit or was only applicable in the District of Columbia.
This serves as an example of the confusion under which we must
operate and attempt to succeed in providing the vital raw
material needs of our communities.
We need, we rely, and we very much depend on district
representatives from the Corps to convey timely and accurate
information. The Corps and EPA issued formal guidance in April
1997, and I thank the other plaintiffs in the lawsuit for their
efforts to compel the Corps to issue this guidance to alleviate
some of the confusion.
Senator Sessions. If you can wrap up as you are able.
That's all right. Take a minute.
Mr. Winter. I was going to make some comments on Nationwide
26, but I----
Senator Sessions. You have a minute or two.
Mr. Winter. The National Aggregates Association represents
business interests whose focus embrace the interests of the
American economy. A large part of our industry, which is in
every State and nearly every congressional District, are small
producers. If for no other purpose, we would like to make this
subcommittee aware of our strong desire to work with you in the
development of clear, concise, progressive legislation that
lends itself to reasonableness and responsible policymaking.
The aggregates industry is committed to working with all
sectors and interests in wetland preservation. We look forward
to working with each of you and your respective staff in this
regard.
Again, I thank the members of this subcommittee for holding
these hearings. We appreciate your time and consideration of
our views.
Senator Sessions. Thank you very much.
We appreciate those remarks. You're out every day doing the
kind of work that I know causes you to confront these
regulations, and we appreciate your insight into it.
I don't know if--Mr. Winter has just finished. I believe
that's the last panel member, Mr. Chairman.
Senator Inhofe [resuming the chair]. That's correct. It is.
We'll begin now with our questions. I thank you for coming
back.
Mr. McKenzie, I am an avid waterfowl hunter and have been
for quite some time, and in your testimony--and I think we all
know it's true the duck population is pretty healthy right now
and has increased, and yet you said you can't have it both ways
during the time that we experienced that increase and
Nationwide 26 was in full force. Are we having it both ways
now?
Mr. McKenzie. No, we're not. Duck populations depend on the
small wetlands, middle-sized wetlands, big wetlands, upland
nesting cover, and water all being present in the same place at
the same time.
During the years 1985 and forward, Swampbuster was
protecting small wetlands and the Conservation Reserve Program
was in operation restoring wetlands and millions of acres of
upland nesting cover in the prairie pothole region. The only
thing that was lacking during the years 1985 through about 1991
or 1992 was the water. We were in several years of pretty
serious drought then. And that drought, on top of the intensive
farming techniques and the wetland drainage of the 1960's and
1970's, the cumulative effects of all those impacts were too
much for waterfowl populations. They hit historic lows during
the late 1980's.
When the water finally returned to the prairies in the
1990's, there were, indeed, still small wetlands remaining,
thanks to Swampbuster. There were millions of acres of upland
nesting cover, thanks to the Conservation Reserve Program, amid
those wetlands in the prairie potholes, and the water was
finally there, so the ingredients were present and the ducks
have responded.
If any of those ingredients were to be taken away, the
ducks will respond accordingly and we'll have declining
populations and then more-restrictive hunting seasons once
again.
Senator Inhofe. So we're not having it both ways?
Mr. McKenzie. I don't believe so.
[Additional information submitted for the record follows:]
[GRAPHIC] [TIFF OMITTED] T6779.011
[GRAPHIC] [TIFF OMITTED] T6779.012
Senator Inhofe. Mr. Winter, first of all I apologize for
not being here, but we did have an opportunity to look at your
written testimony. You stated in that testimony that the Corps
was late in reissuing existing permits and issuing new permits
in the last 5 years--last two 5-year cycles. What were the
effects of the Corps' delays on your member companies?
Mr. Winter. Well, there's tremendous uncertainty. We
obviously--all of our members are--most of our members are
operating in all the communities of the United States, and we
have to provide those raw material needs in those communities.
Our industry is a highly capital-intensive industry. And delays
in securing permits or extensions of existing permits only
creates more of the uncertainty and the burdens on our
association members.
Senator Inhofe. In projecting forward, would you say what
will be the consequences of delays of the NWP replacement
permits? What would be those consequences?
Mr. Winter. Beg your pardon?
Senator Inhofe. Are you going to have similar problems if
we experience delays in replacement permits? You know, right
now there is--part of the controversy of this hearing is
whether we are going to be able to get the replacement permits
in the 2-year period that began in last December.
Mr. Winter. Well, we're going to be faced with a situation
where a lot of producers that may be involved in activity that
has minimal effect or minimal acreage will have to go through
the individual permit process, which is going to, of course,
create extensive burdens, expense and time on that, and I'm not
sure that--we are of the opinion that the Corps probably does
not have the personnel to deal with those additional individual
permit processes if we find a situation here in 2 years where
we don't have the national permit 26 and we don't have in place
existing individual replacements for the Permit 26.
Senator Inhofe. I see.
Senator Sessions, I know that you had indicated you have to
get to another hearing, so I'd like to have you go ahead and
ask questions, and I have quite a few more questions for later
on.
Senator Sessions. Thank you.
There was not a second vote ongoing while you were over
there, was it?
Senator Inhofe. No. It will be 20 minutes debate and then a
second vote.
Senator Sessions. OK.
Senator Inhofe. I think we can be finished by then.
Senator Sessions. Mr. Noyes, I appreciate the fact that you
are concerned about flood control.
Dr. Siegel, I think you are exactly correct that what may
be a good rule for the West may not be a good rule for the
Southeast. Alabama, Mobile I believe, has 70-plus inches of
rain per year. The terrain is different. It just does not make
sense to do that if we're going to reach the level of
environmental protection we want.
I understand--I don't know if any of you are aware of this,
but I understand there are problems with actually cleaning out
ditches or streams that have been there for many, many years
for just nat-
ural protection of maybe residential areas or farmland. Are you
familiar with that, Mr. Noyes?
Mr. Noyes. Yes, Senator. There are many instances, not only
in our county and the State of California, but throughout all
of the NAFSMA organization where there have been time delays
and obstacles put up with respect to mitigation measures,
expensive mitigation measures that would be required by the
regulatory agencies in order to get the permits to take the
necessary maintenance measures and to clean those channels out
and to restore them to their original flood control
capabilities.
Senator Sessions. Mr. Seibert, are you familiar with any
complaints or problems in cleaning or removing obstructions
from long-existing drainage ditches or streams?
Mr. Seibert. Yes, sir. I know that our county engineer
where I'm from in Ohio pulls his hair out every time he has to
go out and try to clean out a drainage ditch to stop flooding
that has been occurring in the areas. Before they've always had
the easements and right to go in and clean out the silt and the
weeds and the debris and put them back in good operating order,
but with the new rule they are dealing with today they are
having a lot of problems.
Senator Sessions. Mr. Winter, I appreciate your comments
and your concern for the environment. It is most noteworthy. I
think, however, in Alabama you'd be what we call a ``gentleman
farmer.'' That's a person whose income really does not depend
on the productivity of the land and are able to do things with
it that someone who is trying to feed his family with it may
not be able to. It's a real serious problem when persons have
been conducting their farming operations with certain
techniques and then are just told no longer can you do that,
which, in fact, takes from that person the beneficial use of
that property.
Let me ask this. I have a sense that many landowners who
would be willing and be open-minded about setting aside certain
properties if there was some compensation for it, sort of
delegating it to environmental uses, which perhaps is not very
profitable for them at this time at any rate, but they do not
and resist very strongly the principle that the Government can,
just by taking a regulation, remove from them the beneficial
use of that property.
Have you given--has the Wildlife Association given any
thought to encouraging, through the principles we do now--we
encourage people through crop support programs not to plant. We
pay them money not to plant. Perhaps we could pay them not to
clear timber on certain lands or to not drain certain
properties. It may not be a very costly prospect to me. Have
you given any thought to that?
Mr. McKenzie. Yes, sir. We've given a lot of thought to
that, and I spend 90 percent of my time working with
agriculture programs to promote incentive programs, just as you
described, for conservation of habitat.
There are several in place right now: the Conservation
Reserve Program that I mentioned, the Wetlands Reserve Program,
which is designed specifically to restore and protect wetlands
on farmland. There are new ones now. There's the Wildlife
Habitat Incentives Program, Environmental Quality Incentives
Program. There's a collection of more than $2 billion a year
worth of conservation programs that USDA administers now.
So yes, I think it is important.
Senator Sessions. How does that work? Let's say for a
farmer who has a stream bed area that is not particularly
productive but he could plant timber there and harvest it at a
given time, which would have some degradation to the stream
bank, how would that work? Do you know?
Mr. McKenzie. The clean and concise answer is it depends on
what kind of land it is, what the situation is, the farmer's
interest, and whether he wants a simple cost-share arrangement
with the Government or whether he's willing to give up a long-
term or permanent easement with the Government.
There is an array of programs that can take care of an even
broader array of needs.
Senator Sessions. I'm intrigued by that. I think that has
potential and I would like to see more of that done because we
have a serious Constitutional problem, in my opinion, of taking
property without just compensation.
Mr. Winter, would you share with us some of the stories
that you have heard or maybe personally experienced in which
these regulations have caused--been applied in an irrational
manner and has made unnecessary and costly expenses to
construction projects?
Mr. Winter. Well----
Senator Inhofe. And let me throw this in, as well--the
confusion of the application of this law should have been just
the five plaintiffs or just in Washington, DC, and how your
membership was inconvenienced by that misinterpretation.
Mr. Winter. Well, our members are confused. That's the
major point of our concern here is that we're dealing with a
law that was apparently intended to deal with the discharge of
filled material into designated areas, and over a period of
time, if you try to expand that, to regulate wetlands. It
really wasn't a law written and designed to regulate wetlands,
and what we're finding as a result of that is that there is
confusion amongst those who we have to deal with, the
representatives from the various agencies, as to what the law
is and how it applies and what applies to what particular
situation.
I think that confusion probably also adds to a lot of the
delays in obtaining permits.
A number of our members--it takes quite a bit of time to
obtain a permit. And it takes quite a bit of time even to
obtain a renewal or an extension of an existing permit. We're
talking a number of years just to obtain an extension on an
existing permit. We're not talking weeks or months.
It's very frustrating because we have a lot of capital
invested and we're providing a vital need for our communities.
They need the raw materials. And it's--we have to go where God
put the product and so in that endeavor we will--our activities
will, of course, impact certain areas that may or may not be
wetlands or waters of the United States.
We would be very interested--our main concern is to have a
program, a set of regulations which are clear, concise, and are
administered on the local level in a consistent manner so that
we can provide guidance to our companies around the country in
how to deal with this, what is obviously--would naturally be a
very complicated regulatory apparatus.
Senator Sessions. Did I understand that you suggested that
even after the Tulloch ruling that you were being told by
Governmental officials that that only applied in one court and
you could still be applied to other people around the country?
Did you hear----
Mr. Winter. Our association has received a number of calls
and complaints from individual member companies in which these
statements were being made to them on the local level, and I
think what it reflects is the confusion of those agency
representatives on the local level, and that confusion then
overflows into confusion of us who have to operate under these
regulations and continue to operate. So yes, we have received a
number of those complaints.
Senator Sessions. Well, I think, when you have a court
order like that, the word ought to go through the Department,
the agency, and they ought to get the word out and it ought not
to be a confused message being sent, but I can understand how
sometimes those things happen, but it's not a justifiable
procedure.
That's all I have, Mr. Chairman.
Senator Inhofe. Thank you, Senator Sessions.
I think, Mr. Noyes, you--I am sympathetic, having been a
former mayor. We've faced some of the same confusion. Do I
understand that you're in a situation where Tulloch would have
prevented you from maintaining your various channels, at the
same time, if you didn't do it, you have another bureaucracy
that is telling you that you have to do it, whether it's FEMA
or the national flood insurance. So tell us what do you do when
you have two bureaucracies telling you two diametrically
opposed----
Mr. Noyes. We try to work out as best we can, Senator, and
we're going through that process now with the local Corps
people that we deal with.
As I indicated earlier, we've been in discussions with the
Corps and the other regulatory agencies for several months now.
We're hopeful that we'll get that resolved, but it is an
expensive and time-consuming process.
I can't give you an exact figure, but I can certainly tell
you that we have spent well into six figures resource time in
our agency providing information to the regulatory agencies,
and still we don't have anything. We're fearful of what the
cost might be when that does come out.
Meanwhile, we're talking to the Corps. We're saying, ``What
are we supposed to do, because part of your organization is
telling us to clean it out and the other part is telling us we
can't do it without going through the permit process.''
Senator Inhofe. Would you consider this an unfunded
mandate?
Mr. Noyes. Definitely it's an unfunded mandate.
Senator Inhofe. Yes. Mr. Carter, how would you respond to
this? Do you think that Tulloch should apply to routine
maintenance and flood control operations by local governments
and should they be required to get permits from the Corps for
these routine maintenance functions?
Mr. Carter. It would probably, Mr. Chairman, boil down to
the facts of that specific case and circumstance. My
understanding of the law is that there is an exemption for
maintenance of currently serviceable drainage structures that
currently exists in the law.
Senator Inhofe. There is an exemption, Mr. Noyes? I don't
want to--are you aware of----
Mr. Noyes. There is an exemption for levees, per se, a
levee being a structural piece of unit that is part of the
system. What we're concerned about is what is between the two
levees in terms of the sedimentation that occurs and reduces
flood capacity and the vegetation that grows in there and the
need to remove that. That's what's subject to permit in the
law.
Senator Inhofe. Mr. Carter, I didn't mean to interrupt. I
just was not----
Mr. Carter. I think, Mr. Chairman, again it would boil down
to the facts of the specific case. If it were a situation in
which you had existing levees, ditches, canals, and structures
that needed to be cleaned out to their original extent in order
to provide the flooding relief that's sought, my understanding
is that that's absolutely exempt from any permitting
requirement in the law.
If you're going beyond that to, in essence, put in new
drainage, what would amount to new drainage that would have
effects on wetlands, that's the type of activity that should be
subject to some type of environmental review to determine the
extent of the environmental impact and who is benefited, who is
being harmed, because channeling floodwater downstream affects
other people downstream, too.
I'm reminded in the Tulloch case of Mr. Thunderbird, who
was not a gentleman farmer, who was a farmer who happened to
live next to this development who received the drainage water
from the drainage of those wetlands that harmed his property
and interfered with his farming operation.
Senator Inhofe. Yes.
Mr. Carter. So it's a complex question.
Senator Inhofe. Thank you, Mr. Carter.
Dr. Siegel, you said in your testimony that some of the
headwaters and isolated wetlands provide important benefits,
but isn't it true that some do not?
Mr. Siegel. Yes, that's correct.
Senator Inhofe. And isn't it also true that under the
system the Corps can make a determination that if they--can
reject these permits based on the fact that something
significant--some problem would exist?
Mr. Siegel. Yes, they can.
Senator Inhofe. And they have 30 days to do it, and they're
increasing that now to 45 days.
Mr. Siegel. Yes.
Senator Inhofe. I would ask why doesn't that offer enough
protection in terms of what you're concerned with and we are
all concerned with, and that is the wetlands that do provide
the beneficial or the important benefits?
Mr. Siegel. I think the issue is a regionalization issue,
in that in some parts of the country in some wetland systems,
such as a prairie pothole region of the Dakotas, for example,
that I mentioned, I think there might be justification for far
more stringent types of regulatory practice to control wetland
loss. In other regions there would be less so.
Without providing a sound and cohesive scientific
justification for this, though, on a regional basis, I think
historically it's difficult for people in the Corps to make
these sorts of calls in a way that's defendable.
Senator Inhofe. I'd like to pursue that, because I don't
quite understand why it would be different from region to
region, and we've got another vote in progress. I'm going to
stay as long as I can here. But I would like to have you submit
for the record, when you say from region to region, kind of say
how the effect in different regions and why uniformity, since
it's a discretionary thing--the Corps can, at its own
discretion, make that determination--why it would be different
from region to region.
Do you have any quick answer or would you like to----
Mr. Siegel. I could give my own personal view on this.
In upstate New York, for example, there are quite a few
small parcels of cattail-type swamp and a common sort of
perception of it which probably don't form as much of a
protective----
Senator Inhofe. But wouldn't the Corps be able to determine
that in that area?
Mr. Siegel. I don't think the Corps right now has the body
of knowledge prepared in the proper way in order for them to
determine this. I think they could--as in many regulatory
agencies, the letter of the law is followed rather than the
spirit of the law.
Senator Inhofe. OK. One other question I wanted to ask you.
You had implied that 2 years may not be long enough insofar as
these replacement permits, to get them in place. How long do
you think it will take?
Mr. Siegel. I really can't--I really don't know.
Senator Inhofe. More than 2 years?
Mr. Siegel. I think it could take longer than 2 years.
Senator Inhofe. OK. Mr. Seibert, you heard the Corps and
EPA both testify earlier concerning the amount of time that it
generally takes on these permits--14 days for a general permit
and 104 days for an individual permit. My question that I had
to him was: you don't start at the time you make the
application but when the permit is received and it is
considered to be credible and in proper form. I further asked
him, in that timeframe, would you estimate an average of some
200 days, and of course he said no.
Do you have any kind of documentation as to how long it
takes, from the time the application is made to the time a
permit is issued individual?
Mr. Seibert. I don't personally have any documentation. I'm
sure that we could round that up. I know, from experience and
working with the individual permits, that it talks about the
percentage that was approved, but it doesn't talk about all
those people who were so frustrated they give up. Many times
30, 40, or 50 percent of the people who are applying just throw
up their hands and give up in frustration, and those numbers
are not reflected in those numbers that were presented to you
today, I think.
I think that many of the other people, as you say, the time
starts ticking when they have a perfect permit.
Senator Inhofe. But it's my understanding that in December
1998 it's going to have to be replacement permits or individual
permits. Do you think they're going to be able to have time, as
we've asked some of the other witnesses, to have those in place
by December 1998, replacement permits?
Mr. Seibert. Absolutely not.
Senator Inhofe. And a question that I guess anyone could
respond to, if that's the case--and we all seem to agree that
is the case--and the Corps found themselves in a position to be
reliant upon individual permits for that period of time, is the
Corps adequately staffed to give the attention to individual
permits on all these? Does anyone have a thought about that?
Just kind of yes or no as we go?
Mr. Winter. I don't think so, in my opinion.
Senator Inhofe. What do you think, Mr. Winter?
Mr. Winter. I don't think so. I think that's where the main
problem is, because there have been so many added
responsibilities to the Corps of Engineers. I'm not sure that
they--they just don't have the capacity to deal with all these
additional permits and additional activities which they claim
are coming within the purview of the Clean Water Act, and they
just don't have the manpower to deal with them. It's just going
to exacerbate the problem even more if we get rid of Nationwide
26 and don't have replacement permits in hand.
Senator Inhofe. Mr. McKenzie.
Mr. McKenzie. They certainly will have to adapt to the work
load, without a doubt.
Senator Inhofe. Mr. Noyes, anybody else?
Mr. Noyes. Couldn't say it any better than Mr. Winter did.
Senator Inhofe. All right. We only have 4 minutes left on
the vote and then there's another one after that, so while we
said we'd go to 11:40 it's going to have to be 11:35.
I know that Senator Chafee and I believe Senator Hutchinson
and maybe some on the Democrat side have questions they'd like
you to answer, and they will submit those questions to you, and
we'd like to have you respond to those questions in writing, if
you would.
I thank you very much and I do apologize for the two
interruptions we've had during the course of this meeting.
Thank you very much.
We're adjourned.
[Whereupon, at 11:35 a.m., the subcommittee was adjourned,
to reconvene at the call of the chair.]
[Additional statements submitted for the record follow:]
Prepared Statement of Robert H. Wayland III, Office of Wetlands,
Environmental Protection Agency
Good morning, Mr. Chairman and members of the Subcommittee. I am
Robert H. Wayland III, Director of the Environmental Protection
Agency's (EPA's) Office of Wetlands, Oceans, and Watersheds. I am
pleased to be here today to provide this statement addressing the
important issue of wetlands protection.
At the outset, I would like to emphasize EPA's commitment to the
administration's 1993 Wetlands Plan to assure that wetlands protection
is fair, flexible, and effective. Implementation of many of the Plan's
administrative initiatives has produced tangible results by making the
Clean Water Act's Section 404 program more fair and flexible, while
continuing to ensure effective protection of the Nation's human health
and the environment.
Consistent with the focus of this hearing, this statement addresses
three recent developments in the Section 404 program: ongoing
litigation concerning activities subject to Clean Water Act (CWA)
permitting; mitigation banking; and, our Alaska wetlands initiative.
EPA and the Corps of Engineers have coordinated closely in the
preparation of agency testimony. To help to facilitate our
presentations, EPA's testimony focuses on issues related to the
``Tulloch rulemaking'' and the recent Federal District Court decision,
while the Corps' testimony discusses the recent improvements to the
Section 404 nationwide permit program. Before turning to these specific
matters, I want to review why we believe wetlands protection and
restoration are so important in realizing the CWA objective to
``restore and maintain the physical, chemical, and biological integrity
of the Nation's waters.''
importance of wetlands
Wetlands are among our Nation's most critical and productive
natural resources. Wetlands are the vital link between land and water.
They provide a multitude of services to society, are the basis of many
thousands of jobs, and contribute billions of dollars to the economy.
Wetlands fulfill vital functions across the landscape. They protect
private property from flooding, and provide shoreline erosion control.
They are critical areas for recharge of aquifers that provide drinking
water for communities across the country. Wetlands are primary habitat
for wildlife, fish, and waterfowl, and, as such, provide opportunities
for recreation, education, and research, as well as the basis for many
economic opportunities. Waterfowl hunters spend over $600 million
annually in pursuit of wetlands-dependent birds. In the southeastern
United States, over 90 percent of the commercial catch of fish and
shellfish depend on coastal wetland systems. In fact, wetlands
contribute over $15 billion annually to our economy for fisheries
alone. Also, a high percentage of the Nation's threatened and
endangered species rely on wetlands for their survival and recovery.
Wetlands are part of our Nation's waters and their protection is
important to achieving the goals set forth in the CWA. Wetlands are
integral to the functioning of watersheds and aquatic ecosystems.
Protection and restoration of wetlands reduce non-point source
pollution and provide other benefits throughout watersheds, including
improved aquatic habitats and floodwater control. For example, forested
riparian wetlands along the river's edge provide important sediment
stabilization, habitat corridors for aquatic and terrestrial species,
and water quality improvement by reducing nutrient loading into water
bodies. One study found a riparian forest in a predominantly
agricultural watershed removed approximately 80 percent of the
phosphorus and 89 percent of the nitrogen from the water before it
entered a tributary of the Chesapeake Bay. Excess nutrients can cause
algal blooms, oxygen depletion, fish kills, and biological dead zones.
the american mining congress decision
As part of the 1993 Administration Wetlands Plan, the Corps and EPA
jointly issued a rule that revised three key definitions contained in
the agencies' CWA Section 404 regulations. One part of the rule defined
the term ``discharge of dredged material'' within the meaning of the
Section 404 program to include discharges associated with excavation
activities that destroy or degrade wetlands or other waters of the
United States. A second component of the joint rule defined the term
``discharge of fill material'' for purposes of Section 404 to include
the placement of pilings to construct structures in waters of the U.S.
when such placement has the effect of a discharge of fill material.
Third, the rule incorporated into the Section 404 regulations the
existing EPA/Corps policy that prior converted croplands are not waters
of the U.S. and, therefore, not regulated under the CWA.
In American Mining Congress v. U.S. Army Corps of Engineers, No.
93-1754 SSH (D.D.C., Jan. 23, 1997) (hereafter ``AMC'') a Federal
District Court invalidated the agencies' revised definition of
``discharge of dredged material'' (hereafter ``Tulloch Rule''), holding
that Congress did not intend to regulate ``incidental fallback''
discharges under Section 404. The plaintiffs did not challenge the
other two components of the 1993 joint rule and, in the Government's
view, they are in no way affected by the decision. ``Incidental
fallback'' typically includes the material that drops from a backhoe
being used to drain wetlands or channelize a stream. The Court ordered
the agencies not to apply or enforce the invalidated rule.
For the reasons explained below, we respectfully disagree with the
decision. On April 10, 1997, the Department of Justice filed a Notice
of Appeal and, on April 22, 1997, a Motion for Stay of the Judgment in
the District Court. On May 27, 1997, the District Court issued a
decision rejecting the government's request for the Stay. On May 30,
1997, the Department of Justice filed a Motion for Stay pending appeal
in the Court of Appeals and requested that the Court of Appeals
expedite consideration of the case. Although we continue to appeal the
District Court decision, unless and until the District Court decision
is stayed or overturned, the government is compelled to comply with the
terms of the Court's injunction. To that end, on April 11, 1997, EPA
and Corps Headquarters issued joint written guidance to our field
staffs that explains the decision and its effect on the Section 404
program. In addition, the agencies are continuing to coordinate closely
with our field staffs to ensure that we comply with the injunction
pending any further rulings in the case.
I would like to focus this part of my testimony on the purpose of
and basis for the 1993 Tulloch Rule, and then turn to the implications
of the AMC decision, especially in terms of its effect on the ability
of the Corps and EPA to ensure effective protection of human health and
the environment.
Purpose of the Tulloch Rule: Ensuring Fair and Effective Environmental
Protection
Consistent with the CWA's objective to ``restore and maintain the
chemical, physical, and biological integrity of the Nation's waters,''
EPA and the Corps issued the Tulloch Rule in 1993 to ensure that
discharges of dredged material that are associated with activities that
destroy or degrade wetlands or other waters of the United States are
reviewed in the Section 404 permitting process. This environmental
review is not aimed at preventing development, but, instead, is
designed to ensure that these discharges do not result in unacceptable
adverse environmental impacts that can otherwise be avoided, minimized,
or mitigated. Prior to the Tulloch Rule, Section 404 regulatory
jurisdiction over discharges of dredged material in many parts of the
country turned on the amount of material redeposited in the water of
the U.S. If the amount of dredged material redeposited was incidental
and small, the discharge was not regulated by many Corps districts even
where it was associated with an activity that caused substantial
adverse environmental impacts. As a result of this regulatory loophole,
a person could construct drainage ditches in a wetland in order to
lower the area's water table, and thereby eliminate the area's wetland
hydrology and convert the area to dry land, as long as the dredged
material excavated from the ditches was not ``sidecast'' (i.e.,
redeposited alongside the ditch or otherwise discharged to waters of
the U.S.). Once the area had been converted in this fashion, it would
be removed from the jurisdiction of the CWA. At the same time, the
courts were being asked to address the scope of activities regulated
under Section 404. For example, in 1983 in Avoyelles Sportsmen's League
v. Marsh, the Fifth Circuit Court of Appeals agreed with the plaintiff
sportsmen's group that the Corps could regulate under Section 404 the
mechanized landclearing activities at issue in that case. The property
owners in Avoyelles converted forested wetland to agricultural use,
which involved land leveling and the filling of sloughs.
The agencies' decision to issue the Tulloch Rule was based on our
increased understanding of the severe environmental effects often
associated with the activities covered by the rule, and the increasing
sophistication of developers who seek to convert waters of the U.S. to
uplands without being subject to Section 404 environmental review. The
Corps and EPA continue to believe that the regulatory clarification
expressed in the Tulloch Rule is within the authorities provided to our
agencies pursuant to Section 404 of the CWA, and was in fact consistent
with the practice of many Corps districts as they sought to apply the
Avoyelles decision in the field. Moreover, to the extent that the rule
represented a change of previous administrative practice, such a change
was warranted in order to ensure that the Section 404 program can
effectively protect our aquatic resources from the degradation that can
result from unregulated ditching, channelization, and other excavation
activities. The agencies have learned increasingly over the last decade
how these activities can severely impact our Nation's aquatic
resources, and therefore view the Tulloch Rule as an important means of
achieving the objective of the CWA--to ``restore the chemical, physical
and biological integrity'' of those resources.
Pocosins are a relatively rare and valuable type of wetland found
only in the Southeast that owe their existence to limited drainage and
abundant rainfall. Pocosin wetlands provide a multitude of functions
and values. They provide abundant water capacity, acting as storm
buffers by greatly reducing flood peaks. In addition, pocosins help
stabilize water quality and balance salinity in coastal waters. This is
especially important for maintaining productive estuaries for
commercial and recreational fisheries. This valuable wetland type also
serves as habitat for many animals, especially black bear along the
coast.
The case that gave rise to the Tulloch rulemaking involved a
project in New Hanover, North Carolina, that converted a 700-acre tract
of pocosin wetlands to a residential/commercial development and golf
course through carefully conducted actions that drained and cleared the
wetlands, while only causing incidental, small volume redepositions of
dredged material. In that case, the Corps had initially determined that
the 700 acres of wetlands were subject to the jurisdiction of the CWA,
and, therefore, that discharges of dredged or fill material into the
area would require a section 404 permit. While the developer originally
applied for a section 404 permit for the development, it subsequently
withdrew the application after comments from other Federal agencies,
including EPA, raised concerns about the adverse effects of the
project.
Rather than pursue the permitting process, the developer decided to
try to remove the site from CWA jurisdiction through the construction
of drainage ditches that would convert the wetland to dry land without
triggering the need for a permit. The developer accomplished this by
constructing ditches using backhoes with welded buckets, and placing
excavated material directly on uplands or in altered sealed containers
resting on truck beds adjacent to the site. The excavation was, for the
most part, performed in such a manner that only drippings from the
buckets of the excavation machinery were allowed to fall back into the
wetland. The ditches were constructed at locations and to a depth that
computer modeling indicated would be sufficient to lower the water
table and convert the wetlands to dry land. The ditches achieved their
purposes, and the local Corps office subsequently concluded that the
area no longer constituted a wetland for purposes of CWA jurisdiction.
The developer was thereafter free to construct the project without the
need to obtain a section 404 permit. As a result of this operation,
hundreds of acres of environmentally-valuable pocosin wetlands were
converted without Section 404 environmental review, eliminating
opportunities to avoid and mitigate adverse environmental effects.
The Corps and EPA also issued the Tulloch Rule to reduce the
inequities in the existing regulatory structure. Prior to the rule,
sophisticated developers who had the financial resources and technical
expertise, like those in the North Carolina case, could attempt to
convert wetlands without causing more than incidental, small volume
discharges of dredged material. Even though the impacts of these
activities could be equally as severe as similar projects involving
``sloppy'' disposal practices associated with large volume
redepositions of dredged material, such developers could avoid Section
404 review, while those undertaking less sophisticated projects were
subject to the permitting process. The facts in the North Carolina case
help demonstrate the necessity of the Tulloch Rule by revealing how one
developer with the technical expertise and financial resources was
able, under past agency policies, to avoid Section 404 review for
activities that destroyed ecologically-valuable pocosin wetlands.
EPA and the Corps also believe that the approach in the Tulloch
Rule is consistent with the statutory scheme set forth in CWA Section
404(f)--the provision under which discharges associated with particular
activities, including certain ditching activities, are exempt when they
do not result in significant environmental impacts. Section 404(f)
includes strict limitations with respect to the types of activities and
their impacts, and whether the exemption applies. The agencies believe
that it is, therefore, reasonable that the Tulloch Rule regulates
similar types of activities that are outside the scope of the Section
404(f) exemption and that result in the destruction or degradation of
wetlands.
Implications of the AMC Decision
We are very concerned that the inability of the Corps and EPA to
provide Section 404 review of activities covered by the AMC decision
will weaken our ability to ensure effective and consistent protection
of the Nation's human health and the environment. The decision creates
an incentive for persons to take advantage of the regulatory loopholes
that are once again available as a result of the District Court's
invalidation of the Tulloch Rule, and to design large projects that
destroy hundreds of acres of wetlands, harm neighboring property, and
pollute streams and rivers in a manner that precludes effective CWA
review. Such review is needed to minimize pollution and ecological
damage, as well as provide appropriate mitigation to offset
environmental harm.
The District Court's decision immunizes from Section 404 review
various activities that can have devastating impacts on wetlands and
other waters of the U.S., even though the physical amount of discharges
from those projects may be small. Excavation projects of particular
concern include drainage ditch construction, stream channelization, and
mining activities undertaken in waters of the U.S. in a manner that
results in only incidental, small volume discharges and therefore
avoids Section 404 review.
As one example among many, the AMC decision will result in
significant environmental impacts associated with mining activities in
waters of the U.S. that would go unregulated under Section 404. In the
southwestern United States, the acreage adversely affected by sand and
gravel mining activities, for example, dwarfs those of other activities
typically regulated under Section 404. In particular, in the Arid West,
riparian areas have already suffered significant loss or degradation:
estimates place riparian habitat loss between 75 and 95 percent in most
western States. While riparian areas are not geographically large,
their environmental importance is immense. For example, riparian areas
comprise less than 1 percent of the land area of most western States,
yet up to 80 percent of all wildlife species in this region of the
country are dependent upon riparian areas for at least part of their
life cycles.
With almost 50 percent of all commercially-viable deposits of sand
and gravel located in or near riparian habitats, these areas remain
extremely vulnerable to excavation activities. In addition to the loss
of valuable fish and wildlife habitat, such excavation can lead to
reduced water quality, channel instability, and increased bank erosion.
Extraction of sand and gravel from within or near a stream bed, for
example, can significantly alter the natural flow of a stream or river
and subsequently lead to excessive scouring of both the stream channel
and its banks. This instability spreads both upstream and downstream
from the excavation site, in some cases miles in either direction,
until the stream or river is able to reach a new equilibrium. In the
process, the stream channel and its banks may be relocated anywhere
across the floodplain, potentially placing important infrastructure
such as bridges, utility lines, and roads at risk.
advances in mitigation banking and alaska wetlands
In addition to the 1993 joint rulemaking, the administration's
Wetlands Plan contained numerous other administrative initiatives
intended to improve the effectiveness of the Section 404 program. I am
pleased to provide the following update on two of the initiatives--
mitigation banking and Alaska wetlands.
Wetland mitigation banks are an innovative, market-based way for
landowners to effectively and efficiently compensate for unavoidable
wetland impacts. Previously, landowners had to undertake mitigation
projects themselves which had proven to be a costly and time-consuming
process for both landowners and regulators. Moreover, there has been
limited benefit to the environment because many of these projects have
failed to meet their ecological objectives. Through mitigation banking,
the responsibility for providing mitigation is transferred to an entity
that has the financial resources, scientific expertise, and incentives
necessary to ensure that the mitigation will be ecologically
successful.
In November 1995, the Federal agencies issued guidance promoting
the establishment and appropriate use of mitigation banks within the
Section 404 and ``Swampbuster'' programs. The new mitigation banking
policy encourages proper siting and design of mitigation banks and
requires that bank sponsors provide the necessary financial assurances
and commit to long-term monitoring and management of the wetlands that
will ensure there is greater environmental benefit from mitigation
efforts. Release of the guidance has facilitated interest in the
establishment of mitigation banks nationwide. Recent survey information
indicates that there are approximately 200 mitigation banks that have
been approved or are under development.
With regard to Alaska, EPA and the Corps continue to recognize that
circumstances in Alaska are different than those in the lower 48
States, and that administration of the Section 404 program should
reflect those differences. As part of the administration's Wetlands
Plan, EPA and the Corps convened a panel of stakeholders and solicited
public input in the State of Alaska in 1993-1994 to identify and
address specific concerns with the implementation of the Section 404
program in that State. Three years later, a number of measures point to
the success of this effort.
Permitting figures demonstrate that evaluation times for individual
and general permits have declined each year and are lower than the
National average. Some 60 general permits authorize 1,000 activities
(over 75 percent of all permitted activities in the State) in wetlands
each year in an average of only 9 days. Of those activities with
potential impacts that warrant individual review, the average
processing time has been cut from 106 days to 68 days. Abbreviated
Permit Processing procedures have expedited the evaluation and issuance
of 24 permits for discharges into wetlands associated with the
construction of water, wastewater, and sanitation facilities in Alaskan
villages (in calendar 1996, 16 of these permits were issued in an
average time of only 20 days).
The administration also evaluated concerns with compensatory
mitigation requirements and the ``No Net Loss'' of wetlands goal as
part of the 1993-1994 Alaska Wetlands Initiative. The agencies issued
Alaska-specific mitigation flexibility guidance and also now
specifically recognize that the ``No Net Loss'' of wetlands goal must
account for Alaska's unique circumstances. Mitigation is practicable
and provided for only about 12 percent of Alaska's individually
permitted wetlands acreage losses, as compared with over 150 percent
for the U.S. as a whole. While these and other administrative steps
have been taken by the Corps and EPA to improve the Section 404 program
in Alaska, we continue to look for additional opportunities to make the
program more fair and flexible while continuing to ensure effective
protection for the State's valuable aquatic resources.
conclusion
In conclusion, Mr. Chairman, through implementation of the 1993
Wetlands Plan, the Clinton administration has demonstrated its
commitment to meaningful improvements to the Section 404 program, while
maintaining effective environmental protection. The purpose of the
Tulloch Rule was to close a regulatory loophole that allowed those with
sufficient resources and technical expertise to destroy and degrade
significant acreage of valuable wetlands. The administration is
optimistic that the Appellate Court will overturn the District Court
and reinstate the rule, thereby allowing the Corps and EPA to once
again ensure effective protection of human health and the environment.
Thank you, Mr. Chairman.
______
Prepared Statement of Michael L. Davis, Deputy Under Secretary of the
Army for Civil Works
Mr. Chairman and Members of the Committee: Thank you for the
opportunity to provide the Department of the Army's views on recent
Clean Water Act Section 404 regulatory and judicial developments. I am
Michael Davis, Deputy Assistant Secretary of the Army for Civil Works.
As the Deputy Assistant Secretary responsible for Civil Works policy
and legislation, I am directly involved in the regulatory initiatives
of the Army Corps of Engineers, which has primary responsibility for
the administration of Sections 9 and 10 of the Rivers and Harbors Act
and Section 404 of the Clean Water Act (CWA), which is co-administered
by the Environmental Protection Agency. The Section 404 program is the
primary Federal regulatory program for wetlands protection and will be
the focus of my testimony today. The Corps of Engineers and the EPA
have coordinated closely in the preparation of agency testimony. To
help to facilitate our presentations, the Corps testimony focuses on
issues related to the Nationwide Permit Program, while the EPA's
testimony discusses the ``Tulloch rulemaking'' and the recent Federal
District Court decision.
When deciding whether changes to a particular program are needed or
desirable, it is important to first understand how a program actually
performs. Before discussing the recent regulatory changes due to the
reauthorization of the nationwide general permits and a recent court
decision, I will highlight recent CWA Section 404 statistics and a few
other wetlands initiatives currently being implemented by the
administration.
section 404 statistics--how the program works
As noted in Figures 1 and 2, in Fiscal Year 1996, over 64,000
landowners asked the Corps for a Section 404 permit to discharge
dredged or fill material into the waters of the United States,
including wetlands. Over 85 percent received authorization under a
general permit in an average time of 14 days. Less than 10 percent were
subjected to the more detailed individual permit evaluation, where the
average time was 104 days. Less than \1/2\ of 1 percent of the 64,000
applications were denied. It may be that in a few cases the Corps took
too long to evaluate an application and perhaps subjected landowners to
an unnecessarily lengthy evaluation process. However, these cases are
very rare compared to the ones that go forward in a timely manner with
minimal regulatory burdens. Finally, it should be noted that many more
thousands of landowners proceed under the authority of general permits
that do not require notifying the Corps.
While a case can be made that generally the program is fair and
working well from a landowner's perspective, some continue to criticize
the Corps for issuing too many permits. However, the Corps has been
very successful in reducing wetlands impacts, and adverse effects on
other landowners, through the regulatory evaluation and conditioning
process, including the general permit process. Most applicants are
willing to ``avoid, minimize, and/or compensate'' for the adverse
effects on wetlands or other landowners that their projects could
cause. Through effective application of the environmental criteria and
the public interest review, the Corps believes that it has been
successful in striking the correct balance between protection of the
overall public interest and reasonable development of private property.
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Administration Wetlands Initiatives--A Fair, Flexible, and Effective
Approach
Notwithstanding the statistics noted above, the Section 404 Program
is not perfect--from either the environmental protection standpoint or
the regulatory burden perspective. There are a few real problems, and
improvements can and should be made. In this regard, the administration
is using its August 1993 Wetlands Plan as a policy roadmap for making
all wetlands policy by:
streamlining the wetlands permitting program to eliminate
unnecessary regulatory burdens;
increasing cooperation with private landowners to protect
and restore wetlands;
basing wetland protection on good science and sound
judgment; and
increasing participation by States, Tribes, local
governments, and the public in wetlands protection.
The administration's Wetlands Plan includes over 40 specific
initiatives. The Corps, the Environmental Protection Agency (EPA), and
other agencies have completed many of these initiatives since 1993 to
help meet the administration's wetlands goals. For example, in 1993,
and also in 1995, the Corps and EPA issued guidance (Regulatory
Guidance Letters (RGL) 93-2 and 95-1) clarifying the need for
flexibility in processing permit requests, emphasizing that small
projects with minor impacts do not need the same detailed review as
large projects. In June 1995, the Corps issued Nationwide Permit 29 for
single family homes impacting less than \1/2\ acre of non-tidal
wetlands. In November 1995, the Corps, along with four other agencies,
issued joint Federal guidance concerning the establishment of wetland
mitigation banks. Finally, the Corps has developed an administrative
appeals process which is ready to be finalized. This program will allow
landowners to appeal a Corps wetland jurisdictional determination or
permit denial without the trouble and expense of going to court. Lack
of funding for the appeals process has delayed its implementation. As
was the case in the past 2 fiscal years, President Clinton's 1998
budget requests funding for this important initiative. The Corps will
implement this program if this funding is approved. These are some of
the program initiatives that
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demonstrate our commitment to implementation of the administration's
Wetlands Plan.
general permit program--nationwide permits
Nationwide Permits--An Overview
The authority for the Corps of Engineers to issue general permits
for activities involving discharges of dredged or fill material into
wetlands and other waters of the U.S. is found in CWA Section 404(e).
This authority prescribes two explicit requirements for all general
permits: (1) the permits must be based on categories of activities
which are similar in nature; and, (2) the activities authorized must
not result in more than minimal adverse environmental effects either
individually or cumulatively. General permits can be issued on a State,
regional, or nationwide basis for a period not to exceed 5 years. The
Nationwide Permit (NWP) Program has become an integral part of the
Corps regulatory program and, currently, approximately 65 percent of
all Corps permit actions are authorized as nationwide permits. Through
NWPs, activities that have minimal environmental impacts are allowed to
proceed with little or no review by the Corps. Yet, under current
approaches, activities that exceed the statutory requirements are
effectively screened out for more detailed evaluation.
One nationwide permit in particular, nationwide permit 26 (NWP 26),
has engendered considerable controversy since its inception in 1977.
NWP 26 is used to authorize 30 percent of all NWP activities, yet this
30 percent accounts for over 75 percent of the impacts attributed to
all NWPs (see Figure 3). This information, in part, highlighted the
need for changes and eventual replacement of NWP 26, which will be
discussed in more detail later.
In the December 13, 1996, Federal Register, the Corps announced the
reissuance of the 37 existing NWPs and the issuance of two new NWPs.
These NWPs provide a balanced package that incorporates over 4000
public comments, years of Corps ex-
[GRAPHIC] [TIFF OMITTED] T6779.015
perience with the nationwide permits, and many months of discussions
with government, private, commercial and non-profit entities. Over two-
thirds of the nationwide permits were reissued without change. These
nationwide permits have proven to be useful and effective in their
current form. Less than one-third of the nationwide permits were
modified; the vast majority of those modifications were made to
increase their applicability and scope. Finally, two new NWPs were
issued to allow for a more rapid evaluation of some activities where
the adverse effects are minimal. These activities formerly required an
individual permit.
The changes made to the nationwide permit program in December 1996,
will allow the Corps to implement a more fair, flexible and effective
regulatory program in accordance with the CWA and the administration's
Wetlands Plan. The Corps published the proposed changes to the
nationwide permit program in the June 17, 1996, issue of the Federal
Register. In response, the Corps received approximately 4000 comments
from Federal, State and local agencies, private industries, the
environmental community, and the general public. Additionally, many
meetings were held with interested parties to share ideas on the
proposal. Ideas from the meetings, together with the comments, assisted
us in evaluating the proposed changes. For example, some NWPs still
require applicants to submit a Preconstruction Notification (PCN) to
the Corps for evaluation of certain projects. This allows the Corps to
ensure that the adverse effects of those projects will not be greater
than minimal. Conversely, many NWPs do not require notification to the
Corps and allow an applicant to conduct his or her project so long as
it meets the nationwide permit terms and conditions. While the scope of
Nationwide Permit 26 decreased, in many cases, we increased the scope
of activities covered under other nationwide permits. For example, NWP
12 can now be used to authorize overhead transmission lines and can be
used to authorize projects in Section 10 waters in addition to Section
404 waters. We also added two new nationwide permits to cover
activities that previously required an individual permit. We believe
that on balance the decreased scope of some of the NWPs, including NWP
26, in conjunction with the increased scope of other NWPs and the two
new NWPs, will not substantially increase the Corps workload or the
overall burden on the regulated public, while, at the same time, will
provide better protection to landowners and the environment. We also
believe these changes will not substantially effect the districts
responsiveness to the regulated public. Accordingly, we feel the
changes are fair and were needed and made in a reasonable and open
manner.
The Corps has continued to remain flexible in its regulation of the
waters of the United States. In reviewing PCNs for nationwide permit
authorization, the Corps works with the applicants to allow, where
possible, authorization under a nationwide permit. The changes to the
NWPs still allow the Corps to consider mitigation to reduce the impacts
so as to bring the project within the minimal impact threshold for
nationwide permits.
The Corps believes that it is critical that Federal, State and
local agencies work together to maximize environmental protection of
the various regulatory programs involved in protecting the Nation's
aquatic system, while minimizing duplication and delay for the
regulated public. One important element of such intergovernmental
cooperation is the State and tribal action to certify the Corps NWPs
under CWA Section 401, and their determination of consistency with the
coastal State's coastal zone management plans. The revised NWPs
received more State certifications and concurrence positions because
the Corps made changes to some key NWPs, such as NWP 26, and because
the Corps districts more assertively worked with the States to develop
regional conditions that would further reduce State and tribal concerns
for protection of the environment on a regional basis. For example, 23
States denied water quality certification of the previous NWP 26, while
only 14 States denied water quality certification of the new NWP 26.
Although the States and tribes were more receptive to the reissued
NWPs, there remain several States who continue to believe that the
Corps should further restrict the NWPs. The Corps will continue to work
closely with States and tribes to develop the most effective
replacement NWPs that we can.
As for effectiveness, the nationwide permits are an effective way
to authorize, in a timely fashion, activities with minimal adverse
effects, thus not overburdening or over-regulating the public while
protecting the integrity of the Nation's waters. Since projects
authorized by nationwide permits must, by law, have minimal individual
and cumulative adverse effects, the high environmental standards of the
CWA can be maintained. In addition, by utilizing the NWP program, the
Corps can issue permits without the added complexity or delays of
unnecessarily requiring an individual permit.
Nationwide Permits--NWP 26 Changes
In 1977, the Corps developed the headwaters and isolated waters
nationwide permit, also known as NWP 26, as we extended Section 404
jurisdiction to all waters of the United States (including isolated and
headwaters areas). Prior to 1977, the Corps did not require Section 404
permits for discharges of dredged or fill material into waters in these
geographic areas. Over the past 20 years NWP 26 has been revised in an
attempt to ensure that activities are not authorized under NWP 26 if
such activities would result in more than minimal adverse effects,
either individually or cumulatively, to the waters of the United
States, including wetlands. While the Corps had to assure compliance
with this statutory requirement, it also had to consider the constraint
of an extremely heavy regulatory workload resulting from obtaining
compliance and from Congress constricting the program's funding.
The most recent data and scientific literature indicate that
isolated and headwater wetlands often play an ecological role that is
as important as other types of wetlands in protecting water quality,
reducing flood flows, and providing habitat for many species of fish
and wildlife. For example, in many parts of the Nation, isolated and
headwater wetlands comprise a significant portion of the functioning
wetlands that remain in existence. The National Academy of Sciences
concluded in its 1995 report on wetlands that ``the scientific basis
for policies that attribute less importance to headwater areas and
isolated wetlands than to other wetlands is weak''.
In light of the above, and in response to public comments, several
substantive changes were made to NWP 26 during the 1996
reauthorization. These include the reduction of the upper threshold
from 10 acres to three acres, addition of a 500 linear foot limitation
for streambed impacts, prohibiting the use of NWP 26 with other NWPs
when the total impacts exceed three acres, and the expiration and
subsequent replacement of NWP 26 within 2 years. The Corps determined
that these provisions were necessary to ensure minimal impacts either
individually or cumulatively. These changes were supported by public
comment as follows:
Lowering of the upper threshold from 10 acres to 3 acres. Surveys
of our districts were conducted to determine the use of NWP 26 and NWPs
in general for fiscal year 1994 and fiscal year 1995 respectively. The
most complete data was collected for fiscal year 1995. We only
collected wetland acreage impacts (which does not include other waters
of the U.S.) from the fiscal year 1995 data. That data shows that of
the 13,800 projects for which a NWP 26 verification was requested and
granted, approximately 5,020 acres of wetlands were lost or adversely
affected nationwide. The overall number of projects allowed under NWP
26 is an estimate simply due to the nature of NWP 26, which allowed
applicants to proceed with activities with less than one acre of impact
without contacting the Corps. The estimated number of projects allowed
to proceed under NWP 26 for fiscal year 1995, for which no verification
from the Corps was required or requested, is approximately 20,000. The
fiscal year 1994 data contains information on the use of NWP 26 at
different acreage thresholds. The most important conclusions reached
through the evaluation of these data involved the impacts to the
resources and the regulated public by the reduction of the NWP 26
thresholds. Evaluation of these data resulted in a conclusion that a
reduction of the upper threshold of NWP 26 to three acres would move
only 10 percent of the verified activities normally authorized under
NWP 26 into the individual permit review process. Yet, this 10 percent
accounted for over half of the adverse effects caused by NWP 26
activities (see Figure 4). We expect over two-thirds of those
applicants with activities impacting greater than 3 acres to reduce the
amount of impact so as to allow for authorization of their project
under the reissued NWP 26.
[GRAPHIC] [TIFF OMITTED] T6779.016
It is important to note that many Corps districts have limited,
through regional conditioning or by exerting discretionary authority on
a case-by-case basis, the impacts allowed under NWP 26 to acreages much
lower than the national threshold due to the possibility of individual
and cumulative impacts becoming greater than minimal in that district.
For example, a project was proposed in one of our districts that would
have impacted approximately 7.6 acres of wetlands. This project was a
multi-use housing development with high-density and low density housing
units and an industrial access road to a main road located adjacent to
a main waterway in an urbanizing area. It was determined that this
project, if approved, would have greater than minimal cumulative
adverse effects within the watershed. Con-
sequently, meetings with the applicant revealed that some of the
wetland impacts were avoidable through the relocation of the housing
and roads. The reconfiguration did not decrease the economic value of
the development and the final project retained the same number of homes
and townhouses. The reconfiguration of the development changed the
location of the townhouses and the homes and avoided impacts to
approximately 3.5 acres of forested wetlands while increasing the green
area/playing areas within the development. Relocation of the roadway
and stormwater detention ponds avoided another 1.4 acres of wetlands.
The final project was authorized with 2.7 acres of impact, which was
considered to be within the limitations of a nationwide permit.
The 2-year expiration of NWP 26. The Corps received substantial
comment on NWP 26. Many commenters wanted NWP 26 to remain as it was
issued in 1991 with one and 10 acre limits, while many others
recommended that, at a minimum, the Corps needed to reduce the acreage
thresholds to the \1/3\- to 3-acre level to ensure that no more than
minimal adverse effects would occur. Many others recommended total
elimination of NWP 26 because of the impacts that they believed were
occurring. Numerous commenters also stated that, since NWP 26 covers a
category of waters, rather than a category of activities, that the NWP
is illegal under the CWA. The Corps received a wide range of comments
regarding reissuance of NWP 26 and thus obtained a clear picture of the
public's concerns regarding this NWP. After careful consideration of
all comments, the Corps determined that NWP 26 should be replaced by
activity-based NWPs. However, in fairness to the regulated public, the
Corps determined that a 2-year transition period was needed rather than
a decision not to re-issue NWP 26 at all. The Corps believes that the
2-year period is sufficient to develop and issue necessary replacement
NWPs for activities with minimal adverse effects on waters of the U.S.
In order to ensure that no more than minimal adverse environmental
effects occur during the transition period, the Corps also determined
that the \1/3\- and 3-acre thresholds needed to be put in place as
previously discussed.
Although NWP 26 will expire on December 13, 1998, the Corps is
already moving forward to develop replacement, activity-specific NWPs
to authorize many activities previously covered under NWP 26. We have
met with development and environmental interests to listen to their
ideas for replacement NWPs. We are continuing to receive
recommendations and are eager to work with all interested parties on
this effort. Additionally, we have our field personnel collecting data
on the current use of NWP 26 to assist in the analysis. This is just
the informal part of the process. The public will have a formal
opportunity to participate when we publish the proposed replacement
permits in the Federal Register for comments.
An example of the type of activity based NWPs we are considering
already exists. Nationwide Permit 29, also known as the Single Family
Housing nationwide permit, was issued in June 1995. This NWP was
established to meet the needs of ``mom and pop'' property owners
wishing to fulfill their ``American Dream'' of owning a home, while
simultaneously protecting the Nation's waters and reducing regulatory
constraints on these home owners. NWP 29 allows for up to \1/2\ acre of
impact to non-tidal wetlands for the construction of a single family
home, not housing subdivisions, but single homes, and their attendant
features. To date, this NWP has been utilized to authorize the
construction of 385 homes throughout the nation with total impacts of
only 70.76 acres of waters of the U.S. Through the notification process
required for authorization under NWP 29, the Corps has been able to
avoid impacts on-site to the extent practicable and to ensure the
impacts remain minimal while allowing projects to go forward in a
timely manner. We envision replacement NWPs for similarly defined minor
activities with practical, environmentally sound restrictions.
It is important to note that these new activity specific nationwide
permits, similar to the other nationwide permits, generally will not be
restricted to isolated waters or above headwaters areas. While the
scope of activities authorized by NWP 26 may decrease, the geographic
scope of coverage will increase. Furthermore, the existing NWPs which
are not geographically restricted, will now be used above headwaters
and in isolated waters, where NWP 26 was used previously. For example,
NWP 29, mentioned in the previous paragraph, will now serve as a
replacement for NWP 26 for single family homes above the headwaters and
in isolated waters.
Finally on replacement NWPs, I would like to give you an idea of
the projected course of action over the next 12-18 months that will
ensure the issuance of replacement NWPs prior to the expiration of NWP
26. These replacement NWPs will only authorize activities that the
Corps determines would have minimal impact on the aquatic environment.
We will continue to work with interest groups and Federal, State and
tribal agencies to further develop NWPs this summer and fall. We will
publish the proposed replacement NWPs in the Federal Register by
February 1998 for formal public review and comment. We expect to issue
the replacement NWPs in August 1998. The new permits would become
effective 60 days from the date of final publication.
The prohibition on the use of NWP 26 for projects affecting more
than 500 linear feet of a streambed. The Corps received several
comments regarding the adverse impact of NWP 26 projects that affect
lengthy sections of flowing streams. In response to these comments and
based on Corps experience, the Corps determined that to ensure that the
adverse environmental effects of NWP 26 remain minimal, it was
necessary to limit the length of project impacts on the stream bed as
well as to limit the overall acreage. The Corps believed applying this
restriction to only direct impacts of filling or excavating the
streambed was sufficient to ensure that the impacts would be minimal.
The restriction does not limit the ability of the Corps to authorize
projects that cause the inundation of more than 500 linear feet of a
stream, nor filling in areas of wetlands in areas adjacent to the
stream for more than 500 linear feet, provided the impacts are not more
than minimal. The limitation restricts projects that could have, under
the 3-acre limitation (and without the 500 linear foot limit), totally
filled a 10 foot wide streambed for nearly 2.5 miles.
The prohibition against ``stacking'' (the use of NWP 26 with other
nationwide permits on the same project), if the total adverse effects
on waters of the U.S. would exceed the 3-acre limit applicable to
activities authorized solely by NWP 26. The Corps received numerous
comments suggesting that there were cumulative impacts caused by the
practice of stacking or multiple use of NWPs for a single and complete
project. Such stacking was authorized under the previous NWPs. However,
during the Corps review of the comments and the Corps review of the
implementation of the NWPs, it became apparent that more than minimal
impacts were possible when stacking occurred. This was particularly
apparent when considering stacking additional NWPs with NWP 26. The
Corps, after careful consideration, established the 3-acre limit for
NWP 26, and thus any additional impact would likely increase impacts
beyond the minimal level. That is, to ensure that the minimal impact
level threshold is not exceeded, other NWPs may not be combined with
NWP 26 in a manner that results in more than 3 acres of impact.
These last three issues, the two-year limit, 500 LF prohibition and
stacking of NWP 26, are the subject of a law suit brought by the
National Association of Home Builders against the Corps. The
plaintiffs' claim that the Corps violated the Administrative Procedure
Act in adopting these three changes. We believe, as discussed above,
that we have complied with all legal requirements for reissuing and
modifying the nationwide permits.
conclusion
The Corps believes that the changes in the NWP program were clearly
needed in order to continue to ensure that the thousands of activities
authorized result in no more than minimal adverse environmental
effects, either individually or cumulatively. Our extensive experience
with administering the NWP program indicated that the former
limitations of NWP 26 could no longer ensure that only minimal impacts
to the aquatic environment would occur. An essential part of the Corps
experience with implementing the NWPs includes an increase in
scientific information that clearly indicates the important functions
and values of headwaters and isolated waters to the Nation's overall
aquatic system. At the same time, the Corps recognizes that activities
that do involve only minimal impacts should be allowed to proceed with
minimal review and delay. The Corps has ensured that such projects can
be authorized under the reissued interim NWP 26. Over the next one and
one half years, this interim approach will be replaced with a more
focussed group of activity specific NWPs. The replacement NWPs will
ensure that adverse environmental effects of the NWP program are only
minimal, and more clearly identify the activities covered to assist the
regulated public. Furthermore, the changes to NWP 26 should be
considered in the overall context of all NWP changes. We believe that
the reduction in the regulatory burden on landowners will, on balance,
offset the increases. Our approach to NWP 26, along with the other NWP
changes, ensures sound environmental protection and the efficient
authorization of development resulting in minimal adverse environmental
effects.
While I have not discussed the recent opinion in American Mining
Congress v. U.S. Army Corps of Engineers, I will note that we support
fully the comments expressed in EPA's written statement on this case.
As discussed in their statement, the Tulloch Rule was issued by the
Corps and EPA because of an increase in the number of cases where
important waters of the United States were being destroyed or severely
degraded, by activities that involved excavation with incidental
discharges. Such activities were being regulated inconsistently
nationwide by the Corps, resulting in inequitable treatment of various
permit applicants, depending on their geographic location. We continue
to believe that the CWA provides the authority for the Corps to
regulate excavation activities involving discharges in all waters of
the U.S. Because of the substantial impacts that such excavation
activities can cause to the Nation's waters, we intend to vigorously
defend our position in an appeal of the D.C. District Court's decision.
Mr. Chairman that concludes my statement. I would be pleased to
address any questions that you or the committee may have on the
important subject of wetlands protection and regulation.
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Prepared Statement of Darrel Seibert, National Association of Home
Builders
Good morning. My name is Darrel Seibert and I am here to testify
today on behalf of the 190,000 member firms of the National Association
of Home Builders. The vast majority of NAHB members are small business
owners. Approximately 93 percent of the sales revenues in our industry
are derived from companies qualifying as small businesses. I would like
to talk about two related but separate issues involving recent
regulatory and judicial developments concerning wetlands. The two
issues are the regulatory decision by the U.S. Army Corps of Engineers
to eliminate Nationwide Permit 26 and the recent court decision
overturning the Tulloch Rule. I will address them in that order.
Nationwide Permit 26
Recently, the U.S. Army Corps of Engineers issued a final rule on
the nationwide permit program under section 404 of the Clean Water Act,
which regulates the discharge of dredged or fill materials into the
waters of the United States. NAHB believes that the Corps acted
inappropriately and irresponsibly in its final rulemaking and failed to
adequately consider the impact of its decision on small businesses.
Specifically, I am here to talk about the economic impact resulting
from changes made to Nationwide Permit 26.
Nationwide permits (NWPs) are a type of general permit, authorized
under the Clean Water Act. NWPs provide an expedited permitting process
for developers performing certain activities in wetlands that,
individually or cumulatively, will produce only minimal environmental
impacts without the delay that usually accompanies the more extensive
individual permit process. For comparison, obtaining a nationwide
permit generally takes about a month while an individual permit usually
takes more than a year to process and is far more burdensome for the
Corps and for small businesses. Unnecessary delays in construction add
significantly to the cost of a new home. The most common permits used
by builders and developers are NWP 12 for installing utility lines, NWP
14 for minor road crossings, and NWP 26 for discharges into isolated or
headwaters wetlands and waters of up to 10 acres (individually or
cumulatively).
According to the Clean Water Act, NWPs must be reauthorized by the
Corps at least every 5 years. Since it was first authorized in 1977,
NWP 26 has remained essentially the same--allowing impacts of up to 10
acres. Impacts under 1 acre were deemed so minimal those projects could
proceed without prior notification to the Corps. However, during the
last reauthorization process which began last summer, the Corps
proposed three options for changing NWP 26: (1) leaving the threshold
limits at 1 acre and 10 acres, (2) reducing the threshold limits to \1/
2\ acre and 5 acres, or (3) reducing the threshold limits to acre and 3
acres.
The Corps received over 400 comment letters on these threshold
options--70 percent of those letters agreed with NAHB's preference for
the first option. Likewise, a majority of the local Corps districts who
filed comments also supported making no changes to Nationwide Permit 26
and retaining the 1 and 10 acre thresholds.
Nonetheless, the Corps ignored these comments and, on December 13
of last year, issued a final rule that chose the most restrictive
option, Option 3, reducing the threshold limits to \1/3\ acre and 3
acres. Additionally, the Corps imposed further restrictions that were
not even part of the proposed rule, including new restrictions on
combining Nationwide Permit 26 with other nationwide permits. Another
new limitation, invalidating the use of Nationwide Permit 26 on
projects affecting more than 500 linear feet of a streambed, will
prevent many projects from being eligible for a Nationwide Permit 26 at
all. The impact of this change will be particularly devastating in the
West.
Finally, the Corps also decided in its final rule that the new,
much more restrictive Nationwide Permit 26 would be gone in 2 years.
All other NWPs were reauthorized for 5 additional years. The Corps
claims it will have issued up to a dozen new targeted replacement
permits to be available when NWP 26 expires, but NAHB has serious
doubts the Corps will achieve this goal. The Corps was late in
reissuing existing permits and issuing new permits in the last two
cycles, when the changes were comparatively simple and there was 5
years to complete them. Accordingly, there is no reason to believe that
the Corps will be able to finalize brand new permits in only 2 years.
Without these permits, many of our members could be forced out of
business while their projects are put on hold waiting either for new
permits to be issued or dealing with the more lengthy and expensive
individual permitting process.
The Corps decided to make many of these important and substantial
changes to NWP 26 without public notice, despite the fact that it has
worked well for the last 20 years. There will be minimal if any
environmental benefit from the changes. The old Nationwide Permit 26
included numerous environmental safeguards such as water quality
certification, permit standards and conditions. The Corps claims that
it made the decision to phase out NWP 26 based on comments to the
proposed rule expressing concern that the old NWP 26 allowed
unacceptable impacts. At the same time, the Corps acknowledges that
there was actually a net increase in wetlands under the old Nationwide
Permit 26. In place of the 6500 acres of wetlands disturbed under the
old Nationwide Permit 26 in 1995, 7800 new acres of wetlands were
created or restored--a ratio of 1 to 1.15. If the old NWP 26 created or
restored more wetlands than were impacted, how can the Corps also argue
that the permit allowed too great an impact on wetlands?
Significantly, the Corps did not inform the public that it was even
considering these fundamental changes to NWP 26. Instead, it made that
decision after hearing only one side of the story. NAHB feels strongly
that the Corps issued its final rule on NWP 26 without fully
considering the impact on small business and without weighing those
significant costs against the minimal benefits that may result. The
decision will cause a significant increase in time, money, and
paperwork required to complete a project. Builders, property owners,
municipalities, and first time home buyers will all be impacted.
The Corps admits the rule will increase the number of individual
permits it will have to process by 10 percent, although NAHB believes
that number will be far higher, slowing the approval process even more.
The data used by the Corps for its estimate of a 10-percent increase in
individual permit applications only accounted for the reduction in the
threshold acreage from 10 acres to 3 acres. The Corps did not
adequately consider the potentially significant increase in individual
permit applications resulting from the 500 linear feet rule, which will
have a significant impact particularly in the west, or from the
prohibition on stacking NWP 26 with other NWPs. Neither of these
elements were part of their proposed rule and were made without
opportunity for public comment, nor was the 2-year expiration of the
reissued permit.
Because the U.S. Army Corps of Engineers chose to significantly
modify and eliminate Nationwide Permit 26 without proper public notice,
comment, or review period, NAHB filed suit against the Corps on March 6
for violations of the Administrative Procedures Act and the Clean Water
Act. NAHB further believes that Congress has a responsibility to ensure
that the Corps meets the requirements of the Regulatory Flexibility Act
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) last year. NAHB feels strongly that the Corps has not, and
NAHB has provided testimony to the House Small Business Committee to
that effect.
In addition to our lawsuit against the Army Corps, NAHB is strongly
supporting legislation introduced in the House by Representative Mark
Neumann, H.R. 2155, which would restore Nationwide Permit 26 to the
original thresholds before the Corps illegally modified them on
December 13. The Corps should have to provide evidence for the need for
change before changing a permit which has been so effective at
protecting and increasing wetlands while providing regulatory
flexibility for builders. Congress has a responsibility to ensure that
Federal agencies abide by the rules when making significant regulatory
decisions. Again, this issue is about playing fair, not protecting the
environment. NAHB's members have a strong interest in protecting the
environment, including wetlands, in a way that makes sense.
Tulloch Rule
The second issue I would like to address is the recent court
opinion that invalidated the Army Corps regulation commonly known as
the ``Tulloch rule.'' This rule required developers to get permits for
the incidental fallback that accompanies dredging and landclearing
activities in wetlands under the theory that this incidental fallback
should be considered a ``discharge'' under the Clean Water Act. In
other words, the Tulloch rule attempted to make ``taking out'' material
the same as ``filling in.'' Five trade associations--NAHB, the National
Mining Congress (formerly known as the American Mining Congress), the
American Road and Transportation Builders Association, the National
Aggregates Association, and the American Forest & Paper Association--
sued the Corps and the EPA arguing that this regulation went beyond the
authority granted to the Corps by Congress under the Clean Water Act.
In January, Judge Harris of the United States District Court for the
District of Columbia ruled that the Tulloch rule was inconsistent with
the intent of the CWA and the legislative history and he invalidated
that regulation.
In response, the Justice Department, representing the Corps and the
EPA, attempted to have the District Court's ruling limited--in a
creative, but highly questionable motion to the court--asking that the
ruling only apply to the litigants in the case. In other words, the
Justice Department argued that the rule was only invalid for members of
the trade associations that sued them, but the District Court's ruling
did not apply to everyone else. Although that argument could be
considered a great recruiting tool for NAHB, it flies in the face of
justice. The Justice Department's argument essentially was that the
Army Corps of Engineers could continue to enforce an illegal regulation
against a citizen until and unless he brought a successful suit against
the Corps. As you might expect, the Justice Department's attempt to
limit the ruling was soundly rejected by the court.
NAHB is very concerned with the fact that District Court
invalidated the Tulloch rule in January of this year, but local Corps
districts continue to try to avoid and ignore the ruling. First, the
Justice Department argued that the Corps should not have to issue
guidance to local districts about how to comply with the ruling until
its attempt to limit the District Court's decision to the members of
the trade associations was ruled on. This was clearly a stall tactic,
since the District Court's ruling was effective immediately and the
Corps should have been complying with it. Because there was no guidance
from the Corps to the local districts to tell them how to comply with
the court's ruling, there was significant confusion and false
information around the country. We have reports from our members that
local Corps officials made such statements as, ``the Court's decision
only applies in the District of Columbia,'' ``the decision does not
apply to applications already in process at the time of the decision,''
and ``the decision had been stayed.'' All of these statements were
patently false.
Furthermore, Corps personnel ``encouraged'' builders and developers
to apply for permits for incidental fallback anyway, even though the
Tulloch rule had been overturned. The Corps suggested builders apply
for the permits ``just in case'' warning that if the District Court's
opinion were later overturned on appeal, any excavation done without a
permit would be subject to vigorous enforcement actions applied
retroactively. For 2\1/2\ months after the Court's ruling, the Corps
failed to give formal guidance to local Corps districts on compliance
with the invalidation of the Tulloch rule. NAHB reported all of these
problems to the Corps with little result.
Finally, with all other options exhausted, NAHB and the other
plaintiffs filed a motion on April 8 asking the court to compel the
Corps to issue guidance. The Corps issued its formal guidance on April
11.
The 2\1/2\-month delay in obtaining formal guidance from the Corps
and EPA strongly illuminates the problem of having a program run by two
different agencies. The Corps did draft interim guidance within the
first few weeks following the Court's ruling, but the formal guidance--
which had to be issued by both the EPA and the Corps was not finalized
until last week. The Corps and the EPA failed to effectively coordinate
their activities, leading to confusion, delay, and error. For the
record, I have submitted a number of documents showing the lengthy and
laborious efforts by NAHB and the other plaintiffs to get the Corps and
EPA to follow the Court's ruling and to issue formal guidance.
In short, the recent pattern of decisions by the Corps and the EPA
demonstrates either a lack of willingness or the inability to follow
the instructions of Congress or of the Federal Courts. By significantly
changing the nationwide permit program without proper notice or input
from small businesses; by enforcing regulations beyond the authority
granted to them by Congress; by failing to provide clear and timely
guidance on a Federal court ruling; and by attempting to enforce a
rule, clearly invalidated by the courts, for those members of the
public who did not sue them directly for relief--the Corps and the EPA
have behaved inappropriately and irresponsibly. On behalf of the
190,000 member firms of NAHB, thank you for this opportunity to address
these very serious concerns.
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Prepared Statement of James Noyes, Assistant Director, National
Association of Flood and Stormwater Management Agencies, Los Angeles
County Department of Public Works
introduction
The National Association of Flood and Stormwater Management
Agencies (NAFSMA) is a national organization representing flood control
and stormwater management agencies serving a total population of more
than 100 million citizens.
The mission of the Association is to advocate public policy,
encourage technologies and conduct education programs which facilitate
and enhance the achievement of the public service functions of its
members. The Association's members are public agencies whose function
is the protection of lives, property and economic activity from the
adverse impacts of storm and flood waters.
NAFSMA appreciates this opportunity to share our views on issues
concerning recent wetlands regulatory and judicial developments. The
recent judicial developments are of particular concern to NAFSMA
members since the Association was an amicus in the legal challenge to
the Tulloch rule filed by the American Mining Congress and others in
January 1994.
Background on Flood Control and Stormwater Management Systems
Flood control and stormwater management systems are complex and
interdependent networks of structures and watercourses which typically
include some combination of dams, dikes, levees, drainage ditches,
channels, reservoirs and wet or dry stream beds.
As examples, Riverside County, California alone has an extensive
flood control system including 35 dams, debris basins and detention
basins, 48 miles of levees, 188 miles of open channel and 182 miles of
underground storm drain. Los Angeles County Department of Public Works
operates or maintains 15 reservoirs, 143 sediment retention facilities,
228 stream bed stabilization structures, 33 storm water pumping plants,
29 groundwater recharge facilities, over 100 miles of soft bottom flood
control/groundwater recharge channels, 350 miles of reinforced concrete
channels and some 97,000 inlets and catch basins. Some of the
facilities were constructed for the sole purpose of sediment
entrapment, and others cannot function effectively and at design
capacity without periodic sediment removal.
The Flood Control District of Maricopa County maintains over 30
miles of channel and over 60,000 acres of floodways, spillways and
pooling areas. New York State maintains 150 miles of flood control
channels in upstate New York alone, with more in the metropolitan area
and Long Island. Other NAFSMA members are responsible for comparable
facilities, generally scaled to the size, population and climate of the
geographic area served.
Accumulation of vegetation and sediment in flood control structures
and systems is a reoccurring and predictable occurrence. Flood control
system maintenance removes these deposits to maintain the character and
flow capability of the systems. Such work is required periodically for
both man-made and natural features which are involved in passing and
controlling flood flows.
The failure to provide such maintenance results in serious
consequences. Accumulated vegetation and sedimentation directly reduce
the volumetric and flow capacity of streams, channels, reservoirs and
other devices which carry, divert and/or hold storm and flood water.
Encroaching vegetation and sediment also affect the ``friction factor''
\1\ of moving water in both natural and man-made channels. Reduced
volumetric capacity and increased friction both serve to reduce the
effectiveness of flood control systems, thus reducing protection of
life, health and property.
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\1\ The resistance to water flow caused by vegetation and other
obstacles in the ditch, stream or channel reduces the speed by which
water moves through the conveyance, and thus its capacity to handle
peak flows. The reduced flow rate also promotes sediment deposition
which in turn inhibits infiltration.
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In order to maintain the optimal functions of these systems at
their original design capacity, vegetation and sediment must
periodically be removed. Routine maintenance is especially critical for
older systems which were frequently designed to lower protection
standards and which are therefore even more critically dependent on
continuing maintenance. These older systems were not designed to handle
build up of sedimentation and vegetation. Especially for agencies with
older systems and facilities, the public is being put at risk whenever
normal maintenance activities are delayed or restricted.
Federally Mandated Maintenance of Flood Control Facilities
In addition to the fact that proper operation and maintenance of
flood control systems is critical to protect the life and property of
the residents served by NAFSMA member agencies, in many cases
maintenance work is federally mandated. For projects constructed with
Federal partners, such as the U.S. Army Corps of Engineers, local
sponsors are mandated by Federal law and performance contracts to
operate and maintain these projects to standards dictated by the
Federal agencies. Moreover, the local flood control entity is also
required to indemnify and hold these agencies harmless from all
liability and damages.
There are also additional Federal mandates for flood control
maintenance. In order to participate in the National Flood Insurance
Program (NFIP), the Federal Emergency Management Agency (FEMA) requires
the participating community to maintain the carrying capacity of all
flood control facilities, and in some cases even semi-natural creeks
and rivers. In most cases, this responsibility ultimately falls on
local governments. It's important also to note that communities that
fail to meet their maintenance responsibilities are subject to
expulsion from the National Flood Insurance Program, loss of other
Federal aid, and even exposure to suits by FEMA for recovery of flood
insurance and disaster payments.
Tulloch Rule Litigation
NAFSMA members believe that the government's August 25, 1993
excavation rule inappropriately expanded the scope of section 404 of
the Clean Water Act in such a way that routine maintenance and
operation of flood control and related water management systems is
severely hampered. The rulemaking also intruded on local management
functions and imposed additional costs and regulatory burdens on local
governments without any measurable corresponding environmental benefit.
Language in the so-called Tulloch rule expanded the definition of
``discharge of dredged material'' to include ``any addition, including
any redeposit of dredged material including excavated material into
waters of the United States which is incidental to any activity
including mechanized landclearing, ditching, channelization, or other
excavation.'' The new requirement meant that flood control and other
local government agencies would have to obtain a section 404 permit
from the Army Corps of Engineers for even the most routine maintenance
and operation activities, despite the lack of any such requirement in
the statute itself, and in fact contrary to existing provisions of the
statute.
With this rulemaking, the government for the first time was
requiring a permit for certain routine maintenance activities that
resulted in incidental fullback into jurisdictional waters. The scope
was thus changed from regulating the addition of materials to the
waters of the United States, including wetlands, to regulating the
removal of materials from these waters.
The result of the rule is that formerly routine maintenance
activities of existing flood control facilities, many built in Federal
partnership, are now subject to onerous Federal permit and mitigation
requirements, along with the attendant delays, increased costs, and
ongoing threat to the public health and safety.
NAFSMA and its member agencies do not suggest that all of their
projects and activities were unregulated prior to August 25, 1993. Many
activities undertaken for flood control and other water management
purposes, such as significant new construction affecting waters and
wetlands and the discharge of excavated sediment at specific disposal
sites, have always required section 404 permits and would continue to
require protective oversight regardless of the Tulloch rule.
What was new and particularly burdensome about the Tulloch rule was
the extension of jurisdiction of section 404 to excavation and other
routine operation and maintenance activities undertaken at thousands of
sites throughout the country.
In response to the serious adverse effects that the August 25,
1993, regulation had on flood control and water conservation activities
across the country, NAFSMA filed an amicus curiae brief in support of
the American Mining Congress challenge to the Tulloch regulation.
Judge Harris Rules To Strike Tulloch Regulation
In his January 23, 1997 ruling, U.S. District Judge Stanley S.
Harris struck down the excavation rule and expressed his legal opinion
that the Corps and EPA had ``unlawfully exceeded their statutory
authority in promulgating the Tulloch Rule'' and reiterated that the
agencies authorities are limited to adopting regulations that effect
the will of Congress as expressed in the statute.
In his decision the Judge also refers to an earlier Federal
Register notice for the Corps 1986 regulations that stated:
Section 404 clearly directs the Corps to regulate the discharge
of dredged material, not the dredging itself. Dredging
operations cannot be performed without some fallback. However,
if we were to define this fallback as a ``discharge of dredged
material,'' we would, in effect, be adding the regulation of
dredging to section 404 which we do not believe was the intent
of Congress.
NAFSMA also finds it of interest that Judge Harris referenced in
his decision an August 24, 1993 White House press release announcing
the Tulloch rule that states: ``Congress should amend the Clean Water
Act to make it consistent with the agencies' rulemaking.'' The press
release, provided as an example in the plaintiff's original motion for
summary judgment, clearly illustrated the government's awareness that
the Tulloch rule exceeded the congressional intent and authorization.
Government Moves to Narrow Judgment
On February 6, 1997, the government filed a motion to alter or
amend the Court's January 23 judgment and asked the Judge for expedited
consideration. The agencies argued that the Judge's decision, and
subsequent injunctive relief, should apply only to members of the
plaintiff organizations. In addition, they sought to narrow the ruling
only to those who were members at the time of the original motion for
summary judgment (January 1994) and further only to those who were
involved in excavation activities at the time.
NAFSMA again responded as an amicus in the litigation.
The Judge rejected the government's motion on April 2 once again
reiterating the point that the agencies had gone beyond their statutory
authority in promulgating the Tulloch rule. The government filed its
notice of appeal from the District Court's January 23 and April 2
decisions on April 10. The government has also filed a motion to stay
the court judgment pending appeal and NAFSMA has filed again to be
considered as an amicus at the Circuit Court of Appeals.
Formal Interim Guidance Issued
In the meantime, the Corps and EPA on April 11 issued formal
interim guidance on regulating certain activities in light of the
American Mining Congress v. Corps of Engineers decision. This guidance
makes it clear that this is an interim period and that currently no
permit is needed for activities involving only incidental fallback. The
guidance directs Corps offices receiving or already processing such a
permit application to respond back to the applicant that ``as an
accommodation to the applicant, the Corps will process the permit if
the applicant requests in writing that the Corps do so.''
Irrespective of the guidance, NAFSMA member agencies and others
have been informed by the Corps that although a permit would not be
needed at this time, the agencies would have to cease operations and
apply for a permit if the decision was stayed or overturned on appeal
or face potential enforcement actions.
A copy of a letter from the Corps' Omaha District to a local agency
notes clearly that if the ruling is stayed or reversed, the Corps would
again regulate activities such as those proposed. The letter further
stated that if this occurs and your project has already begun, the
agency would be required to stop work and obtain authorization.
As described in the April 11 guidance, the letter goes on to
suggest that the agency may request in writing that the Corps process
their permit application to verify that the project would not otherwise
be subject to regulation and that processing the application now should
ensure that there would be no unnecessary delays in the event that
regulation of the activity resumes.
NAFSMA Urges Congress to Oversee the Government's Efforts To Carry Out
Judge's Ruling
NAFSMA applauds the Committee's commitment to gather testimony on
this critical issue and we urge members to continue their oversight of
this situation. Our hope is that congressional involvement can help to
clarify what is at best a confusing and uncertain time for our local
flood control agencies.
Although we are gratified by the Court's recent decision, our
members need to know that they can carry out their maintenance
responsibilities, especially in light of the court's recent decision,
without fear of enforcement action by the Corps or challenges by other
organizations.
As examples of some of the difficult situations that have resulted
from the Corps wetland regulations, a Southern California Department of
Public Works in 1993 was informed by the Corps that its long-
established (50-years) maintenance practices to restore design capacity
of existing facilities could create significant impacts and that the
agency needed to obtain permits. These same maintenance practices are
also exercised by the Corps and in some cases were required of the
local agency when the Corps transferred many of the facilities to the
local sponsor to maintain.
In conjunction with the Corps annual inspection of these
facilities, the Corps notified the Public Works Department that it must
clear various channels of debris and vegetation. The Corps then
required the Department to obtain permits from the Corps, which in turn
solicited comments from U.S. EPA, the U.S. Fish and Wildlife Service
and the Regional Water Quality Board.
On the one hand the Corps is demanding that the Public Works
Department remove the vegetation, while on the other hand the Corps is
demanding that the Department secure a permit from the Corps, respond
to any opposition to the permit, and mitigate for the encroaching
sediment and vegetation removal.
In another case, the local agency is required to obtain new permits
annually from the Corps to perform preseason channel clearing
activities to remove vegetation that grows in certain channels during
the dryer season, and which needs to be removed prior to the rainy
season to reduce potential flood events. Requiring local agencies to go
through this permit application process on an annual basis is not only
costly to the local agency, it is also time-consuming and hampers the
agency's ability to clear the channels in sufficient time to protect
the health and safety of its residents.
In another example, San Bernardino County in California began to
have problems getting permission to remove vegetation from the Mojave
River in late 1980's. In 1993, the county faced a fairly sizable
flooding event on the river. In one locality, Victorville, the flood
waters went over the top of the levee and flooded out a small part of
the city. As part of the same event on another channel, flow couldn't
follow its normal pattern because of vegetation, took a sharp right
turn from path and flooded out many backyards and caused problems for
residences in Spring Valley Lake. Had the county had the ability to
continue removing debris and vegetation, it possibly could have avoided
at least the second flooding event.
As part of the Spring Valley event, the county was forced to go
into flood fighting mode and lost at least a half day in this action by
waiting for Fish and Wildlife approval, which was eventually granted.
Once the emergency was over, the Federal Government came back and
notified the agencies that they would have to mitigate for vegetation
lost in the flood fighting effort.
Had the county had the ability to continuously remove vegetation
and debris, the flooding event may have been avoided.
In Riverside County, California, in January 1993, the Old Town area
of the City of Temecula was subjected to major flooding by overflow
from Murrieta Creek. Flows raged through shops, stores and restaurants
several feet deep, resulting in over 10 million dollars of property
damage. Miraculously no one was killed as a direct result, but in a
number of cases citizens escaped their cars just before they were swept
away. Some of the businesses never fully recovered and no longer exist.
Prior to the flood, Federal officials had refused to allow mechanical
clearing of vegetation and removal of accumulated sediment on the
creek. Only after the flooding, was the District able to get an
emergency 404 permit. The expiration date of the permit was April 30,
1993. Work then proceeded on Stage 1 and then in August, when work on
Stage 2 was ready to proceed, the District requested an extension but
the Corps said that a new Individual permit would be needed for this
work since there was no emergency at the time. Finally in October after
many discussions and much negotiation, an extension to the original
permit was granted.
Ironically, FEMA later reimbursed the District and the City of
Temecula for much of the cost of the post cost flood maintenance under
a Federal Disaster Declaration, and also paid flood insurance and
damage claims to those who were flooded.
NAFSMA Urges Congress To Reaffirm Its Intent To Exempt Flood Control
Activities
NAFSMA very strongly agrees with the Court's recent decisions that
the Corps Tulloch rule does not properly reflect congressional intent
behind the section 404 legislative language and the association is
urging that Congress help the public agencies charged with the
protection of lives and property by reaffirming the specific intent
concerning the ability to operate and maintain flood control channels
and engineered flood control facilities.
NAFSMA believes that Congress has already recognized the importance
of maintaining flood control systems by providing a special exemption
from regulation in section 404(f)(1)(B) stating ``for the purpose of
maintenance, including emergency reconstruction of recently damaged
parts of currently serviceable structures such as dikes, dams, levees,
groins, riprap, breakwaters, causeways, and bridge abutments or
approaches and transportation structures.
We urge Congress to reaffirm this exemption to ensure that whatever
the outcome of the Tulloch rule litigation these critical public
functions are not impaired.
NAFSMA urges that legislation be adopted as early as possible, to
reaffirm its exemptions for flood control operations by clearly stating
exemptions for operations and maintenance of flood control channels and
engineered flood control facilities from the section 404 permitting
process.
______
Prepared Statement of Donald I. Siegel, Syracuse University
Mr. Chairman and Members of the Committee, I am Donald I. Siegel,
Professor of Earth Sciences at Syracuse University (New York). This is
my first testimony before this committee on scientific matters related
to the Corps of Engineers Nationwide No. 26 provision of the Clean
Water Act. My research specialization background includes wetland
hydrology and chemistry. I served as a member on the National Academy
of Science (National Research Council) panel on Wetland
Characterization (NRC, 1995). This testimony is submitted entirely on
my own behalf, although I have been in informal contact with several
other members of the NRC committee regarding my position.
The topics I will address in my testimony relate to the scientific
validity of the Nationwide No. 26 provision of the Nationwide Permit
Program, recently reauthorized and revised by the U.S. Corps of
Engineers (13 December 1996, FR 61:241, 65874-65922).
credentials and work experience
I received my bachelor's degree in geology from the University of
Rhode Island, my master's degree in geology from Pennsylvania State
University, and my doctorate in Hydrogeology from the University of
Minnesota. After receiving my master's degree I was employed by Amerada
Hess Petroleum Corporation as an exploration geologist where I
conducted geological studies to locate oil and gas in the Rocky
Mountains and Southwestern United States. During my subsequent doctoral
studies, I joined the U.S. Geological Survey (USGS) as a district
hydrogeologist in the Minnesota District. There, I managed and
supervised projects designed to: Determine how copper and nickel mining
might contaminate or otherwise affect surface groundwater in a wetland-
rich region of Minnesota, determine how much groundwater enters and
leaves wetlands and lakes, and how ``acid rain'' affects surface
groundwaters.
Following my doctorate, I was promoted to a regional
hydrogeologist/geochemist position. In this capacity, I supervised and
conducted studies including ones on regional wetland hydrology.
Following my employment with the USGS, I joined Syracuse University
where I was promoted to Professor of Earth Sciences. At Syracuse
University, I teach elementary graduate level courses in geology,
hydrogeology, and geochemistry and conduct a broad research program
including projects designed to evaluate how wetland hydrology (the flow
of water in and out) affects wetland vegetation, surface-water quality,
and release to the atmosphere of carbon dioxide and methane (``swamp
gas''). My research has been substantively funded by the National
Science Foundation and the Department of Energy. I have published
widely in peer-reviewed journals on these topics as well as topics
related to groundwater contamination.
In recognition of my expertise and experience in wetland
hydrogeology and geochemistry, the Hydrogeology Division of the
Geological Society of America (GSA) selected me as the 1994 Birdsall
Distinguished Lecturer in Hydrogeology. I was elected and served as the
1995 Chairman of the Hydrogeology Division of GSA, and was selected by
the National Academy of Science (National Research Council, NRC) as a
member of panels to determine the vulnerability of aquifers to
potential groundwater contamination and, at the recommendation of the
National Groundwater Association, the recent wetlands characterization
committee. I have served as associate editor for the peer-reviewed
journals, Water Resources Research and Wetlands. I also review articles
and books for many other peer-reviewed journals publishing in hydrology
and geochemistry and have offered short courses and graduate-level
courses in Wetland Hydrology and Geochemistry.
introduction
The U.S. Army Corps of Engineers (COE) administers section 404 of
the Clean Water Act that regulates fill activities in wetlands and
other waters of the United States. The COE recently revised and re-
authorized this program (13 December 1996, FR 61:241, 65874-65922). The
NWP No. 26 of the Nationwide Permit Program contains wetland size
restrictions related to the extent to which the wetland modification is
regulated. Previous to the 1996 revisions, wetlands less than 1 acre in
size could be effectively filled without notifying the COE (through the
pre-con-
struction process) and the cap on maximum allowable acreage for each
wetland fill was 10 acres.
The 1996 previsional revision, effective for 2 years from February
11, 1997 to February 11, 1999, now requires that the COE be notified of
any proposed wetland filling greater than \1/3\ acre in size and the
maximum allowable fill allowed is 3 acres. The COE's intent is to
replace the current two-year provisional NWP No. 26 with activity-
specific replacement general permits and has directed its districts to:
``* * * carefully review * * * NWP 26 to revoke applicable NWPs
in high value aquatic ecosystems, and to add regional
conditions to limit the applicability of the NWPs to ensure
that no more than minimal adverse effects occur in each
district.'' (FR, 1996, p. 658776).
Explicit in the revised COE approach is the eventual setting of
regional limitations to specifically address protection of specific
environmental ``assets.'' The COE emphases that the purpose of the NWP
is to authorize activities that cause only minimal and individual
cumulative adverse environmental effects and that evaluating such
effects needs to be done on an individual watershed basis. In their
1996 revisions, the COE states that defining minimal impact is
difficult on a nationwide basis because environmental effects
geographically can vary significantly ``from resource to resource,
State to State and county to county, and watershed to watershed.'' The
COE further argues that tightening the NWP No. 26 for an interim two
years is appropriate because headwater and isolated wetlands may be as
valuable or even more valuable than other wetlands, a conclusion
reached by the National Research Council Committee (NRC) on Wetland
Characterization.
Finally, the COE argues that there are benefits to be gained from a
future regionalization approach with respect to wetland regulation, a
conclusion also reached by the NRC committee. As I understand it, the
controversies over the revised NWP No. 26 pertain to a perceived
restrictive nature of having to apply for a COE permit to fill wetlands
as small as \1/3\ acre and whether headwater and isolated wetlands
should be separately regulated as a distinct wetland class.
the scientific issues related to headwater and isolated wetlands
Isolated wetlands in the context of NWP No. 26 are defined as
nontidal waters that are not a part of a river or stream tributary
system to interstate or navigable waters of the United States and that
are not adjacent to such tributary waters. Examples of such wetlands
are the vernal pools and playas in the arid western States, prairie
pot-hole wetlands of the Great Plains, alpine wet meadows, and small
wetlands in headwater regions of streams in the humid Eastern States.
All these wetlands qualify for protection under section 404
jurisdiction, although historically many have been filled, resulting in
large cumulative loss.
Scientifically, the NRC wetland characterization panel recognized
that small isolated wetlands can be very important to maintain regional
ecosystem health and surface-water quality (NRC, 1995). For example,
isolated prairie pot-hole wetlands constitute only 4 percent of the
geographic area in the Dakotas while supporting a large percentage of
the total populations of the most abundant waterfowl (e.g. Kantrud et.
al., 1989). The shallowest pot-holes, often the ``least wet,'' provide
the best invertebrate forage for waterfowl in the Mississippi flyway.
In the more arid West, intermittently flooded wetlands have distinctive
biota that depend upon water. These biota persist and reestablish
themselves quickly after flooding. A well known example is California's
vernal pool fairy shrimp. Intermittently flooded wetlands in coastal
areas, such as bottomlands in Louisiana, clearly provide critical
habitat for fish and shellfish (e.g. Lambau, 1990).
Some isolated wetlands in the prairie pot-hole region and elsewhere
also can replenish local underlying groundwater resources, and many
isolated wetlands help attenuate the onset of flooding and maintain
water quality. In particular, streamside wetlands and isolated wetlands
in headwater areas can remove suspended sediment, contaminants, and
harmful nutrients from surface waters. Brinson (1993) shows that longer
lengths of stream floodplain are more affected by small-scale wetland
disturbance where streams are small than where they are large, and
argues that the greatest emphasis should be placed on maintaining the
integrity of small (technically, first- and second-order) streamside
environments and their watersheds to maintain water quality. The
surface area of a wetland is less important than it's length, relative
to the dimensions of the resource being affected (Brinson, 1993).
Johnston et. al. (1990) studies support Brinson's by showing that
shallow and isolated wetlands in Minnesota effectively remove suspended
solids, phosphorous and ammonia during high flow while removing more
nitrate during low flow when anoxic (no oxygen) conditions can be
established.
Isolated wetlands can remediate poor water quality more effectively
than do wetlands directly connected to streams and lakes because more
time is available for settling out of sediment and biological removal
of nutrients. The chemical processes and biological communities found
in shallow wetlands, isolated wetlands, and intermittently flooded
wetlands are similar to those found in larger wetlands. Headwater
wetlands and isolated wetlands in headwater watersheds partly control
the extent to which non-point nutrients and contaminants reach major
surface water bodies. Headwater and isolated wetlands protect navigable
waters from water quality degradation far more than do wetlands
associated with larger streams. Also, with respect to stream flooding,
small depressions in landscapes must first fill up with water before
there can be substantial overland flow to headwater streams.
applicability of nationwide no. 26
Applying Nationwide No. 26 still is jurisdictionally and
scientifically problematic despite the general scientific consensus
that headwater and isolated wetlands, large and small alike, can
substantively control surface-water quality and to some extent,
attenuate flooding. First, as the COE readily acknowledges, it is
difficult to assign quantitative thresholds governing acceptable
impacts on water quality and quantity caused by individual wetland
loss. For individual small wetlands, these impacts are very difficult
to determine because they are cumulative and water quality effects may
not be identifiable until substantive loss has already occurred.
Depending upon landscape geography and climate, headwater and
isolated wetlands may be less important or have less ``value'' in some
regions than in other regions of the country with respect to sustaining
biological resources deemed important by society (e.g. wildfowl) and
maintaining legislated quality of water. For example, the NRC wetlands
committee felt that it is important to preserve remaining prairie pot-
hole wetlands in the Great Plains States and playa lakes and vernal
ponds in the arid Western States because it is well documented that
these wetlands are critical for migratory wildfowl habitat in such arid
regions. Playa lakes and vernal ponds are effectively the wettest parts
of a generally dry landscape, and therefore have very special and
important biochemical and water quality functions within the watershed
context. In contrast, some isolated wetlands in the humid Northeastern
or North Central States may be less important with respect to water
quality and biological habitat because these wetlands occupy a much
larger part of the regional landscape.
A major question is how to take Nationwide No. 26 and regionalize
it so that it is scientifically credible and is fair to users of
wetlands. The revised NWP No. 26 indicates after the current
provisional two-year period, the COE will further revise NWP No. 26 to
regionalize the permitting process. During the initial two years, the
COE will:
``* * * gather interested parties at the national level as well
as the district division levels, to develop replacement permits
for NWP 26. The replacement permits will be activity-specific
rather than the geographic based approach of NWP 26 (FR, 1996,
p. 65876).''
and
``Once the Corps establishes activity-specific replacement
permits that have clear national conditions to ensure the
aquatic environment is protected and the impacts will be no
more than minimal, each district, working with the Corps
divisions, will establish regional conditions for the activity-
specific replacement permits. This may result in the revocation
of certain NWPs in aquatic environment of particularly high
value, and the addition of regional limitations to specifically
address the need for protection of specific environmental
assets (FR, 1996, p. 65876).''
The NAS Wetlands committee fully recognized the need for
regionalization of wetland regulatory practices, including NWP No. 26.
It recommended that proposals for (and review) of regional practices
should be solicited from scientific experts in the private and public
sectors, both within and outside the region being considered. It also
recommended that all Federal agencies involved in wetland regulatory
practice be involved in the regionalization process.
Several regionalization approaches for wetland classification are
available, based on ecological, hydrologic, geomorphologic and climatic
factors. How the COE will regionalize Nationwide No. 26 is perhaps the
most pressing issue to resolve, and I urge the COE to actively solicit
scientific advice on which classification method best suits the
regulatory process. I also urge the COE to quickly and publicly define
what ``activities'' they expect to consider in their evaluation process
and to similarly solicit as much opinion and discussion as possible.
Based on my understanding of the diverse opinions and concerns related
to wetland regulation, I am concerned that the two years provisional
NWP No. 26 revision is an insufficient time to resolve regionalization
and activity issues.
In summary, I think that the new provisional changes to NWP No. 26
are a step in the right direction to a more scientifically meaningful
and sound regulation of our Nation's wetlands. I applaud the COE's
effort to both constrain the piece-meal loss of small isolated and
headwater wetlands by temporarily implementing stricter wetland
regulations while concurrently working to develop scientifically
meaningful ``activity-based'' regionalization of NWP No. 26. I think
the COE has struck a balanced position with respect to wetland
regulation, somewhere between the extreme positions of preventing any
further nationwide wetland loss to allowing relatively unrestricted
filling of isolated and headwater wetlands. There remains the issue
whether the COE has the staffing available to address what surely will
be increased regulatory caseloads at the district level, but this issue
is a personnel issue, not a policy or scientific issue. This ends my
testimony at this hearing. I thank the Committee on the Environment and
Public Works for soliciting my views and I welcome any questions.
References Cited
Brinson, M.M., 1993, Changes in the functioning of wetlands along
environmental gradients: Wetlands, 13:65-74.
Johnston, C.A., N.E. Detenbeck, and G.J. Niemi, 1990, The
cumulative effect of wetlands on stream water quality and quantity: a
landscape approach: Biogeochemistry, 10:105-141.
Kantrud, H.A., G.L. Krapu, and G.A. Swanson, 1989, Prairie basin
wetlands of the Dakotas: a community profile, U.S. Fish and Wildlife
Service Bio. Rep. 85.
Lambou, V.W., 1990, Importance of bottomland hardwood forest zones
to fishes and fisheries: the Atchafalaya Basin, a case history. pp.
125-193 in G. Gosselink, L.C. Lee, and T.A. Muir, eds., Ecological
Processes and Cumulative Impacts: Illustrated by Bottomland Hardwood
Wetland Ecosystems. Chelsea, MI: Lewis Publ. Inc.
National Research Council, 1995, Wetlands: Characteristics and
Boundaries, National Academy Press, 307 pp.
______
Responses of Donald Siegel to Additional Questions from Senator Chafee
Question 1. When Nationwide Permit 26 first was issued in 1977,
there was little or no knowledge about the scientific value of
headwater and isolated wetlands. Since that time we have learned that
these isolated wetlands provide a number of valuable functions,
including waterfowl habitat, flood control and water quality. Is there
any scientific support for treating wetlands located in isolated waters
or headwaters less protectively than other types of wetlands, as NWP 26
does?
Response. There is not really very much scientific information to
my knowledge documenting that isolated wetlands are less ``valuable''
functionally than wetlands directly connected to surface waters. I
think that perhaps it was simply assumed in 1977 that those wetlands
directly connected to streams would best control water quality, provide
the best wildlife habitat and so on. Also, managing directly connected
wetlands might logically fit in better with regulating ``navigable''
surface waters. But, I think that the scientific knowledge gained on
wetland functions in the 20 years since 1977 shows that isolated and
headwater wetlands may be as important and often can be even more
important with respect to water quality, wild fowl habitat, and flood
control than wetlands connected to streams further downslope. How
important isolated and headwater wetland are to these and other wetland
functions depends on regional factors.
Question 2. One of the major controversies surrounding NWP 26 is
the fact that it covers categories of waters rather than categories of
activities. Is there any scientifically sound basis for regulating a
category of water or wetlands under the ``general permit'' scenario, or
do you believe that regulating categories of waters is by its nature,
bound to result in more than minimal adverse environmental effects.
Response. This is an interesting question. As I said in my
testimony, I agree with the idea to regulate according to activities
rather than stick to the ``general permit'' scenario. The problem with
a general permit scenario, is that it completely neglects the matter of
scale (how big). For example, one could logically remove a moderate
amount of wetlands next to a large lake or river of much greater size
and not affect flood control in a measurable way, whereas removing them
in headwater reaches, where proportionately they are a large part of
the watershed would cause measurable harm. I would like to see the COE
and/or other agencies develop and support the kinds of investigations
that lead to scientifically tenable models of wetland- surface water
interactions on a regional basis. This way, wetland regulation would be
based on scientifically valid grounds, rather than on operationally
easy grounds that logically lead to controversial decisions unsupported
by facts that all can understand. Using activity-based regulations is
more logical than a nationwide general permit scheme because activity-
related degradation can be scientifically assessed more easily. For
example, dredging and filling wetlands in a small headwater stream area
could result in clear evidence of cause and effect--a muddying of the
waters, so to speak. Conversely, filling and dredging of wetlands of
the same size next to a large river might not result in any measurable
effect if the river water was naturally laden with sediment. It all
depends on the region of the country and the characteristics of the
surface-water watersheds. It doesn't make sense to regulate North
Dakota prairie pothole wetlands in the same way that you regulate bogs
and fens in northeastern Minnesota. They are ``apples and oranges'' in
the context of wetland science. It is about time that the regulatory
process recognizes this.
Finally, I certainly do not believe that regulating categories of
waters is ``by its nature, bound to result in more than minimal adverse
environmental effects.'' Such regulation, however, is bound to be
regionally erroneous from a scientific standpoint and consequently
confounding to the regulated public. For example, if every fen and
swamp in upstate New York is rigorously saved from filling and dredging
by NWP 26, then there will no measurable adverse effect. But, it is
also likely that some fens and swamps could be lost to development and
there still will be no measurable adverse effects. It all depends on
where the wetlands are located in the watershed on an individual and
cumulative basis.
______
Prepared Statement of Donald F. McKenzie, Wildlife Management Institute
Mr. Chairman: The Wildlife Management Institute (WMI) appreciates
this opportunity to support the conservation of wetlands that are vital
habitat for wildlife resources of national and international
importance. WMI is a non-profit, scientific, and educational
organization staffed by professional natural resource managers. It has
been dedicated since 1911 to the restoration and improved management of
wildlife. We request that this testimony and the accompanying
attachments be included in full in the record of this hearing.
I am before you as a professional waterfowl biologist and as a
private landowner. I own and reside on nine rural acres in northern
Loudoun County, VA. One-third of my property is wetland, subjecting me
to the very regulatory changes under review today. However, my wife and
I are able to use our land extensively within the limits of both its
natural capability and the government regulatory system. We have
planted wildlife food plots and trees, cut trails, cleared brush, cut
firewood, added onto our house. I use tractors, chain saws, herbicides,
fertilizers, and prescribed fire to manage habitats. I hunt big and
small game and target shoot. In short, wetland regulations have not
impeded us at all from using and enjoying our land and meeting all our
personal goals for the property.
WMI's primary points are simple. First, drainage and excavation of
wetlands needs to be clearly regulated by section 404. Second, small
wetlands are vital habitat for many species of wetland-associated
wildlife, and should be protected by section 404 of the Clean Water
Act. Third, the interests of millions of American sportsmen and
sportswomen is directly affected by the fate of wetlands.
wetland drainage and excavation should be regulated
WMI is disappointed that the ``Tulloch Rule'' was overturned. While
we have no opinion on the legal merits of the decision, our
professional resource management judgment is that drainage and
excavation are leading causes of wetland degradation and can be as
damaging to wetland functions as deposition of fill materials.
Therefore, we strongly believe that the Clean Water Act should regulate
drainage and excavation of wetlands, whether by administrative or
legislative action. If current law does not allow administrative action
to regulate wetland drainage and excavation, WMI supports congressional
action to amend the law to do so. WMI is not, however, willing to
accept other amendments to the Clean Water Act that would result in
overall weaker protection for wetlands, merely in order to add drainage
and excavation to the list of regulated activities.
small wetlands are vital habitat that must be protected
WMI applauds the recent action of the U.S. Army Corps of Engineers
to phase out Nationwide Permit 26, which has provided virtual automatic
approval for all ac-
tivities in wetlands smaller than 10 acres. This permit constituted the
single largest and most damaging loophole in the Clean Water Act's
section 404 regulatory program, and has been largely responsible for
impeding the achievement of no net loss of wetlands.
Furthermore, Nationwide Permit 26 has been a source of substantial
inconsistency between section 404 and the U.S. Department of
Agriculture's (USDA) wetland conservation authority known as
Swampbuster, which does not provide an acreage exemption. WMI supports
efforts to make section 404 and Swampbuster as consistent as reasonably
possible, given the fundamental differences between the programs.
Regarding the topic of wetland acreage exemptions, WMI always has
advocated that the Corps adopt for section 404 the stricter Swampbuster
standard. The Corps' decision to promote consistency in favor of
conservation, rather than in favor of destruction, will help foster
continued improvements in wildlife populations and other environmental
conditions for the American public.
Suitable habitat is the fundamental requirement of all wildlife.
For example, ducks require duck habitat. During the breeding season,
duck habitat consists of a mixture of small, medium, and large wetlands
with water, along with upland nesting cover, in the same places at the
same time. If any of these habitat elements is missing, ducks and other
wetland wildlife cannot survive, much less thrive.
History proves that abundant duck habitat depends on Federal
measures to protect wetlands. Intensive wetland drainage in the U.S.
that peaked during the 1960's and 1970's, combined with new fencerow-
to-fencerow farming techniques, resulted in two decades of declining
duck populations that reached historic lows in the 1980's. Only in the
last four years has the duck decline apparently been stemmed and even
reversed. The U.S. recently is enjoying increasing duck numbers,
improved duck hunting and liberalized hunting seasons, which
demonstrate that investments in conservation do pay off. Total duck
numbers have reached quarter-century highs. A few duck species are even
approaching the continental population goals established by sportsmen
and wildlife managers in 1986 in the North American Waterfowl
Management Plan.
Two resource conditions are primarily responsible for this ongoing
success story--the return of water to the ducks' prairie breeding
grounds, and the abundance of habitat in the form of small wetlands and
upland nesting cover. The Federal Government has not yet found a way to
control the precipitation, but it can have substantial influence over
the habitat. Two actions of the Federal Government are most responsible
for ensuring that the habitat was in place when the water returned.
First, Federal protection of remaining wetlands has greatly reduced
the rate of wetland losses. Section 404 of the Clean Water Act protects
the public interest by prohibiting the filling of wetlands. The USDA
disincentive program, Swampbuster, attaches wetland conservation
strings to the voluntary receipt of Federal agriculture subsidies.
While neither program individually provides adequate protection for all
important wetland types, the programs have been mutually reinforcing
with positive conservation results.
Neither would be as effective without the other. For example, two
of the major weaknesses of section 404 are that it does not regulate
drainage and it provided a general permit--Nationwide Permit 26--for
filling wetlands less than 10 acres. Swampbuster, on the other hand,
governs both drainage and conversion of wetlands smaller than 10 acres.
However, Swampbuster only applies to the land in agricultural
production that is owned or farmed by current participants in Federal
agriculture programs, while section 404 applies to all land ownerships.
Second, Federal investments in restoration of degraded wetland
habitat are making meaningful progress toward rebuilding the Nation's
wetland habitat base. Wetland restoration programs such as the North
American Wetlands Conservation Act, the Conservation Reserve Program,
the Wetlands Reserve Program and the U.S. Fish and Wildlife Service's
Partners for Wildlife program--together with their non-Federal
partners--collectively are nearly offsetting the remaining rate of
wetland losses. The U.S. now is approaching the hard-earned national
goal of no net loss of wetland functions. Furthermore, the Conservation
Reserve Program established millions of acres of upland nesting cover
among wetlands in the prairie pothole region, to create ideal
conditions for ducks to breed successfully when the water returned.
As the ongoing turnaround in duck populations demonstrates, this
combination of Federal actions--protection and investment--is proving
successful at rebuilding important public resources. However, the hard-
earned progress of the last several years can be lost quicker than it
was gained. A reduction in either of these Federal actions is certain
to catalyze the resumption of net losses of wetlands. That development
would cause populations of ducks and other wetland wildlife, along with
the myriad human interactions with these resources, to decline once
again.
Duck Hunting Depends on Wetlands
The interests of duck hunters are directly dependent on abundant
duck populations, which in turn are directly dependent on abundant duck
habitat. A foundation of scientific wildlife management is that
harvests by hunters must not exceed the ability of the species to
sustain itself. Harvest is carefully controlled by setting hunting
regulations such as season dates, season length, and bag limits,
according to the best available data on each species' population status
and trends.
The direct effects on hunting of habitat and population changes can
be illustrated by the ``Adaptive Harvest Management'' framework used by
the USFWS as a guide to setting duck-hunting seasons. The season length
and bag limits in each flyway are tied directly to that year's
estimated duck populations. The lower the duck populations, the more
restrictive the hunting regulations. The currently proposed season
length and bag limit guidelines for each of the four flyways under four
categories of duck populations levels are attached.
Adaptive Harvest Management
Proposed Options for Duck Hunting Season Lengths and Bag Limits for the 1997-1998 Season (Federal Register Vol.
62, No. 109, pp. 31298-31306; June 6, 1997)
----------------------------------------------------------------------------------------------------------------
Very
Restrictive Restrictive Moderate Liberal
----------------------------------------------------------------------------------------------------------------
Atlantic Flyway:
Season Length............................................. 20 30 45 60
Daily Bag Limit........................................... 3 3 4 4
Mississippi Flyway:
Season Length............................................. 20 30 45 60
Daily Bag Limit........................................... 3 3 6 6
Central Flyway:
Season Length............................................. 25 39 60 74
Daily Bag Limit........................................... 3 3 6 6
Pacific Flyway:
Season Length............................................. 38 60 86 107
Daily Bag Limit........................................... 4 4 7 7
----------------------------------------------------------------------------------------------------------------
The severe duck decline of the 1970's and 1980's resulted in some
of the most restrictive hunting regulations in this half-century during
the late 1980's and early 1990's. Thus, we have witnessed recently some
impacts on humans of wetland losses--restricted and even closed hunting
seasons for certain species and sexes, that reduced 2.9 million
Americans' recreational opportunities.
In anticipation of upcoming congressional attempts to neutralize
the Corps' phaseout of Nationwide Permit 26 by codifying a small-
wetland exemption in section 404, I offer the attached assessment. In
1995, WMI--with the aid of the USFWS, using the best-available
scientific data--estimated the impact on hunters of a simple 1-acre
exemption from Federal wetland protection.
Because breeding ducks are territorial, ten 1-acre wetlands will
attract and support more duck pairs than one 10-acre wetland. In the
U.S. portion of the prairie pothole region (Montana, North and South
Dakota, Minnesota, and Iowa), 78 percent of the wetland basins are one
acre or smaller. The loss of these small wetlands in the U.S. would
reduce the breeding pair carrying capacity of that portion of the
region roughly by half. In turn, the annual production rate of young
ducks from the region would be reduced by about half.
In turn, the loss of Federal protection for just 1-acre wetlands
would cause reduced duck harvests in the short term by causing fewer
bird encounters, shorter hunting seasons, and reduced bag limits. In
the long term, a 1-acre exemption also would impact wetlands in
migration and wintering areas, further reducing duck habitat and duck
numbers and hunting opportunities nationwide. Ultimately, these
cumulative impacts of a simple 1-acre exemption from Federal wetland
protection could pose a risk to the very existence of duck hunting and
its associated economic, sociological, and even ecological benefits.
The $1.6 billion duck-hunting ``business'' once again is expanding
to provide greater stimulus to America's rural economies and outdoor
recreation industries. I soon will be moving to Arkansas, arguably the
duck hunting capital of the country. In anticipation of this move, I
recently acquired a new duck-hunting parka, and soon will purchase new
waders, decoys, a duck call, and shotgun shells before the upcoming
waterfowl hunting season. I may even have to lease hunting rights from
the owner of wetland habitat. These expenditures, magnified over
millions of hunters add up to big business--business that is dependent
on wetlands. The long-term vi-
tality of this economic activity depends on sustained Federal action to
protect and invest in wetlands.
conclusion
WMI does not oppose a reasoned, rational refinement of section 404
that would continue to meet public resource needs in ways that minimize
private problems. However, only a reauthorization bill that uses
current law as the starting point for debate and which relies on the
best available science to meet national goals for public trust
resources is acceptable to us.
Those who support hunting, hunters, and other wildlife enthusiasts
cannot have it both ways. Waterfowl hunting and watching cannot be
maintained while eliminating protection for small wetlands. WMI wants
to be sure that Congress understands this price of weakened wetland
protection, as it contemplates changes to the Clean Water Act. The loss
of small wetlands is a much graver threat to the future of duck hunting
than any possible actions of the animal rights movement. We hope that,
given this information, you can help avoid decisions that will
adversely affect duck populations, duck hunting, and millions of
outdoor enthusiasts in the U.S.
Mr. Chairman, thank you for this opportunity to present WMI's views
on the importance of protecting wetlands. Please do no hesitate to call
on WMI for any reason regarding this important issue.
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Prepared Statement of Derb S. Carter, Jr., Southern Environmental Law
Center
Chairman Inhofe, members of the subcommittee, thank you for the
opportunity to testify today. I am testifying on behalf of the Southern
Environmental Law Center, a public interest, environmental law firm
working to protect the environment and natural resources of the
Southeast. As a conservationist and attorney with over 15 years of
experience representing citizens across the Southeast as they fought to
protect wetlands in their communities, I have seen the Federal wetlands
protection program up close and on the ground. I was one of the lead
attorneys on the Tulloch case, and my client, the North Carolina
Wildlife Federation, is a party to the AMC case, now before the Court
of Appeals for the D.C. Circuit.
I will address two subjects today: The Corps' decision to phase out
Nationwide Permit 26, and the January 1997 decision in the AMC case
that declared invalid the so-called Tulloch rule. The basic thread that
ties these two subjects together is that, in each case, wetlands
developers and their attorneys are grasping at legal technicalities to
keep profitable loopholes open--long after the damaging environmental
consequences of those loopholes are beyond doubt.
the tulloch rule
The first of those loopholes, the periodic failure of the Corps to
regulate excavation activities in wetlands, was closed by the Tulloch
rule. That rule arose out of a case in coastal North Carolina that
illustrates why it is important and appropriate for the Corps to
regulate the discharge of dredged material resulting from digging in
wetlands.
The facts that gave rise to the Tulloch case were brought to our
attention by a neighbor of one development whose property was being
flooded by diverted drainage water from the wetlands, and by a
fisherman who was concerned about the dumping of drainage water from
wetlands at another development into a tidal creek from which he took
clams and oysters. When we investigated we found that at both sites the
developers had excavated in wetlands a system of ditches to drain the
wetlands so as to avoid the normal permitting requirements for the
proposed residential and commercial developments in wetlands. The
developers employed extraordinary means to limit the amount of dirt
discharged back into the wetland from the ditch excavation. When we
examined files maintained by the Corps of Engineers, we found that
frequent site inspections of both developments by Corps staff had
determined that some amounts of dredged dirt had been discharged in the
wetlands from the excavation of the drainage ditches, but the Corps had
determined that this discharge was de minimus, and not subject to
permitting requirements. Once drained, the Corps determined that the
former wetlands were not jurisdictional and no permits or environmental
review was required prior to development.
When we examined the law, it appeared clear that these wetland
drainage activities should require a permit. To reach this conclusion,
one need not go beyond the plain language of the statute. Section 301
of the FWPCA prohibits the ``discharge of any pollutant.'' Section
502(12) of the FWPCA defines the discharge of pollutant to include
``any addition of any pollutant [including dredged and fill material]
to navigable waters from any point source.'' Section 404 of the FWPCA
authorizes the Corps to issue permits ``for the discharge of dredged or
fill material'' with no exemptions based on the quantity discharged or
the source of the dredged material. Moreover, section 404(f)(2) states
``any discharge of dredged or fill material'' that is ``incidental to
any activity'' having as its purpose bringing a wetland into a use to
which it was not previously subject, where flow and circulation of
waters is impaired or the reach of waters reduced, ``shall be required
to have a permit.'' Certainly the law required a permit for the
discharges of dredged material associated with the installation of
ditches at these developments to convert hundreds of acres of critical
wetlands adjacent to North Carolina's coastal estuaries.
We settled the case with the promulgation of the Tulloch rule which
requires a permit for any discharge incidental to an activity whose
purpose is to destroy or degrade a wetland. It is an eminently sensible
rule, fully consistent with the purpose of section 404 to protect our
remaining wetlands from unregulated and unmitigated destruction.
No sooner did the Corps issue the Tulloch rule than the American
Mining Congress (AMC) filed suit against it, claiming that Congress
never intended the Corps to regulate excavation activities when it
asked the Corps to protect wetlands, and that the Corps had therefore
exceeded its authority in issuing the Tulloch rule. The decision in
January was unexpected, and, to our minds, unfortunate. Like the Corps,
we disagree with the District Court decision and are appealing it. We
are also seeking a stay pending appeal of the order striking down the
Tulloch rule.
Substantial environmental damage will result if the Tulloch rule is
not enforced. The Corps estimates that in the absence of Tulloch, some
6,500 excavation projects will go unregulated, with impacts on 10,000
acres of wetlands, 10,000 acres of open water, and 1,500 miles of
streams and tributaries.
At the same time, it is important to be clear about what the AMC
decision does not do. It does not change the regulated status of most
mechanized land clearing activities--those were regulated before
Tulloch, and they should be regulated even if incidental discharge is
not. You can't take a bulldozer in to clear trees off a wetland without
doing substantial damage to the wetlands, and you can't do it without
moving a significant amount of dirt around. Similarly, taking heavy
equipment into a creek to dig it up and dump material on the banks is
still regulated--and it should be, given the way it destroys aquatic
life and habitat and usually contributes to flooding downstream.
One need not look further than the two developments that gave rise
to the Tulloch rule to forecast the environmental damage that will
result if the AMC decision stands. The impacts of the drainage and
conversion of wetlands at the two ``Tulloch'' developments are
substantial and lasting. The State of North Carolina has permanently
closed to shell fishing the tidal creeks now receiving runoff and
drainage from the developments in the former wetlands. Neighboring
properties are still being flooded during even moderate rain events.
Not surprisingly, the developments in the former wetlands, experience
extensive flooding. The unsuspecting homeowners that invested their
savings in houses built on these drained wetlands are now seeking
public assistance and funding to alleviate the flooding problems.
What should Congress do as this case proceeds through the courts?
My respectful recommendation is to let the judicial process take its
course. However, when Congress does reauthorize the FWPCA, everyone has
agreed for years that to draw a distinction between filling and
excavating in the regulatory program is senseless and unfair, and
Congress should explicitly include ``excavation'' in list of regulated
activities to remove all doubts.
nationwide permit 26
If excavation was a major source of unregulated wetlands loss
before promulgation of the Tulloch rule in 1993, Nationwide Permit 26
has been the biggest hemorrhage within the 404 program, and that is why
conservationists have opposed it. Until the most recent reissuance last
December, Nationwide Permit 26 allowed the destruction of up to 1 acre
of isolated wetlands and headwater streams with no notice to anyone,
and up to 10 acres with notice to the Corps, but not to the public or
even necessarily to the Federal resource agencies. Science has shown
that isolated wetlands are among the most important types of wetlands
for protecting water quality, serving as habitat, and recharging
underground drinking water supplies in various parts of the country;
headwater streams are the smallest streams in the watershed, and are
the most important parts of river systems for protection of water
quality in the watershed. The National Research Council of the National
Academy of Sciences recommended in 1995 that NWP 26 be reviewed because
``[t]he scientific basis for policies that attribute less importance to
headwater areas and isolated wetlands than to other wetlands is weak.''
National Research Council, Wetlands: Characteristics and Boundaries
(May 1995). We've known that NWP 26 was allowing the destruction of
tens of thousands of acres of these wetlands and streams each year.
Wetlands, particularly headwaters wetlands, are a first line
defense in removing pollutants, including excessive nutrients, from
runoff entering surface waters. In the rapidly-developing Piedmont
region of North Carolina that drains into the Nation's second largest
estuary the average size of a wetland is less than one acre. Thus,
under the previous version of NWP 26, half of these wetlands and their
critical nutrient removal functions could be destroyed with no notice
or permit. Meanwhile, the State is currently considering a billion
dollar expenditure to upgrade sewage treatment systems primarily to
address excessive nutrient enrichment of coastal waters. Existing
wetlands provide this service free.
When the Corps proposed to reissue NWP 26 last year,
conservationists urged the Corps to eliminate the loophole. NWP 26
violates the legal standards for general permits; it covers a category
of wetlands while the Clean Water Act authorizes general permits to
cover narrow categories of activities. More importantly, NWP 26
violates both the letter and the spirit of the Corps' general permit
authority by authorizing projects with far more than minimal cumulative
impacts.
The Corps should have eliminated NWP 26 sooner. Although the Corps
has issued NWP 26 with lower thresholds, the permit remains illegal and
significantly destructive. Any way you count it, it will allow the
unregulated and unmitigated destruction of thousands of acres of
isolated wetlands and headwater streams over the next two years.
Nonetheless, conservationists are looking to the future, trying to work
with the Corps and the regulated community to find alternative
nationwide permits that will protect the environment and work for us
all.
Not so the National Association of Homebuilders, who have taken to
the courts in an effort to hang onto this scientifically bankrupt
loophole a little longer. They apparently believe that a general permit
issued under fully discretionary authority now amounts to legal
entitlement. The Homebuilders claim that the Corps could not decide to
eliminate NWP 26 in two years because it did not specifically solicit
comments on that option in its original proposal to reissue the
nationwide. The law requires the Corps to make an affirmative decision
to reissue any nationwide; the default option when a nationwide is up
for reauthorization, is for it to expire and not be reissued. That is
no secret, particularly since at public hearings throughout the comment
period the Homebuilders heard repeatedly the recommendations of State
and local officials and ordinary citizens that NWP 26 not be reissued,
or that it be severely limited in the very ways the Corps has done--
with limits on the linear impacts permitted to streams, and on the
practice of stacking NWP 26 with other nationwides to smuggle projects
through with no review.
So the Corps is collecting data to come up with alternative
permits, and the Homebuilders are in court. What should Congress do?
Again, I'd recommend that this subcommittee let the administrative and
judicial processes take their course. As an advocate experienced in
dealing with the Corps, I know the Corps will benefit from prodding to
keep to its schedule, and to have the replacement permits ready by the
time NWP 26 expires. I also know that conservationists are unlikely to
brook further delay in closing that loophole.
The final question to ask is, why are the wetlands developers
fighting so hard to avoid meaningful environmental review of their
projects? It is not as though most projects don't get a permit; today,
between 95 and 97 percent of individual permits are granted--between
99.5 and 99.7 percent of projects when general permit authorizations
are included. What is really at stake here is time--not whether the
developers get to make their money, but how fast, and with what
disregard for the environmental consequences.
Ultimately, excusing activities like excavation from review under
the 404 program, or approving projects with significant cumulative
impacts without real review as NWP 26 does, feeds the profits of a few
at the expense of everyone else. Last Congress, some developers tried
to persuade this body to increase loopholes in the wetlands program and
decrease public protections. They failed. Now they have turned to the
courts. I urge this subcommittee to let the judicial process run its
course, and, in the next reauthorization, to strengthen the section 404
program so that these loopholes can never be reopened again.
Thank you, and I'll look forward to answering your questions.
______
Prepared Statement of Thomas W. Winter, National Aggregates Association
Good morning, I'm Thomas W. Winter, President of Winter Brothers
Material Company of St. Louis, MO, and chairman of the board of
directors of the National Aggregates Association.
First, I want to thank Chairman Inhofe, Senator Graham, and members
of this subcommittee for providing me with the opportunity to appear
here today. As chairman of the board of directors of the National
Aggregates Association (NAA), I am here today to speak on behalf of the
member companies that make up our association. NAA appreciates the time
and consideration of this subcommittee and I want to emphasize our
willingness, not only as an association, but as an industry, to be
helpful to the members of this subcommittee, as well as the entire
House and Senate, as you continue to revise and reform our Nation's
water quality programs as well as any other legislative initiative to
be considered by the Congress.
I would also like to offer to this subcommittee, as well as the
full Senate Environment and Public Works Committee, the continued
support of the staff of the NAA. We are committed to providing you with
any information you may need or answering any questions you may have in
this process. We are truly an organization focused on the delicate
balance between the interests of small business and its agenda and the
interests of solid policymaking in our Nation.
NAA is an international association representing the producers of
construction aggregates, which is the largest mining industry in the
U.S. Its members produce a majority of the two billion tons of sand,
gravel, crushed and broken stone sold annually in the United States
dedicated to the maintenance and development of our Nation's
infrastructure. Of course, wetlands is a very sensitive issue to our
industry, and its consideration and preservation are important to us.
I would like to address two related issues this morning involving
recent wetlands regulatory and judicial developments:
No. 1, NAA's support for the recent court decision on the
``Tulloch'' rule, and,
No. 2, NAA's views on the U.S. Corps of Engineers reissuance and
decision to end Nationwide Permit 26.
``tulloch'' rule
As you know, the statutory foundation of the Federal wetlands
program, section 404 of the Clean Water Act, regulates the ``discharge
of dredged or fill material into the water of the United States at
specific disposal sites.''
In August 1993, the Corps of Engineers adopted the ``Tulloch'' rule
thereby redefining the term ``discharge of dredged material'' to
include ``incidental fallback.'' Simply stated, the ``Tulloch'' rule
provided the Corps the ability to regulate what is ``extracted,'' and
not just what is ``added'' to the waters of the United States. Because
excavation and land-clearing almost inevitably result in incidental
fallback, and because, under the rule, that fallback now constitutes a
discharge of dredged material, the ``Tulloch'' rule made all removal
activities subject to a permit requirement.
NAA, along with the American Forest and Paper Association, the
American Road and Transportation Builders Association, the National
Association of Home Builders, and the National Mining Association,
challenged this rule by successfully making the argument that
``Tulloch'' warped the intent of Congress, and went beyond the scope of
authority provided by Congress to the Corps of Engineers under the
Clean Water Act.
On January 23 of this year, the Federal district court in
Washington issued a decision which held that the government acted
illegally when it adopted the ``Tulloch'' rule. The court held that the
Corps of Engineers and the Environmental Protection Agency acted
illegally and declared that the ``Tulloch'' rule is invalid and set
aside, and is therefore not to be applied or enforced by the agencies.
The court observed, and I quote ``the appropriate remedy for what the
agencies now perceive to be an imperfect statute * * * is congressional
action; [the agencies' administrative] authority is limited to adopting
regulations that affect the will of Congress as expressed in the
statute.''
NAA applauds the decision of the Federal district court, and we
will continue to work with allied organizations to ensure that it is
upheld. We view the court's decision as a reasonable, judicial opinion
of wetlands policies.
Following the court's ruling, the Corps and EPA attempted to limit
the magnitude of the decision to only those who served as plaintiffs.
This attempt, in and of itself, was not sound policy on the part of the
Justice Department, and was rejected by the court.
As alarming NAA received numerous complaints and inquiries, all
gravitating around the notion, or misinformation, that stated the
ruling only applied to the plaintiffs in the lawsuit, or was only
applicable in the District of Columbia. NAA will provide documentation
of this information upon request from members of this subcommittee.
Members of this subcommittee, NAA is an international trade
organization consisting of many small aggregate producers. We need, we
rely, and we very much depend on district representatives from the
Corps to convey timely and accurate information.
The Corps and EPA issued final formal guidance in April 1997, and I
thank the other plaintiffs in the lawsuit for their efforts to compel
the Corps to issue the guidance and eliminate the confusion on the
``Tulloch'' decision.
Again, NAA is supported by members whose interests are consistent
with the small business agenda of our Nation. We are, as an association
and as an industry, committed to our ideals, and fiercely loyal to our
beliefs. Our paramount objective is to work with local, State, and
Federal officials and cooperate as we can in the development of sound
public policymaking at the State and Federal levels.
In this regard, we respectfully request the ``Tulloch'' rule remain
invalid. NAA also asks that Congress again consider what is reasonable
in terms of businesses interests as you continue to reauthorize the
Clean Water Act and revise our Nation's wetlands policy.
nationwide permit 26
The second issue I would like to address is Nationwide Permit 26.
On December 13, 1996, the U.S. Army Corps of Engineers published
its reissued and revised nationwide permits (NWPs) in the Federal
Register. The reissued NWPs became effective on February 11, 1997. The
NWPs regulate the discharge of dredged or fill materials into the
waters of the United States through a general type permit authorized
under the Clean Water Act. NAA considers the Corps acted in a manner
inconsistent with public opinion in reissuing the NWPs. I am
specifically here to discuss the Nationwide Permit 26.
Nationwide Permit 26 authorizes the discharge of dredged or fill
material into the headwaters and isolated waters of the United States.
Since the permit was first authorized in 1977, NWP 26 has remained
unchanged by allowing up to 10 acres of wetland impact. During the
recent reauthorization, which occurs every 5 years, the Corps reduced
the threshold limit to \1/3\ acre and 3 acres. Additionally, the Corps
imposed the restrictions on NWP 26 being used in combination with other
nationwide permits. Another limitation, invalidating the use of the NWP
26, are projects involving the disturbance of more than 500 linear feet
of a stream-bed.
The Corps also decided that NWP 26 will be effective for two years
and expire on December 13, 1998, while all other nationwide permits
will expire in five years. The plan is to put in place up to a dozen
targeted replacement permits prior to expiration. There is no reason to
believe the Corps can complete the task in two years when it was late
in reissuing existing permits and issuing new permits in the last two
5-year cycles.
NAA believes the Corps reissued its final rule on NWP 26 without
fully considering the impact on small producers of aggregates and
without considering the significant time factors involved in obtaining
individual permits for the same activity. This puts an unjustifiable
economic burden on small business. NAA is committed to protecting the
waters of the United States but the process needs to be economically
sound and legislatively reasonable.
conclusion
The National Aggregates Association represents business interests
whose focus embrace the interests of the American economy. Though the
companies NAA represents are small, they are in every State, and nearly
every congressional district. We are not an industry concerned with
winning and losing, but much of the time merely surviving.
The members of the National Aggregates Association very much
support the Federal court's decision on the ``Tulloch'' rule, and we
ask that Congress respect the court's decision.
The aggregates industry is committed to working with all sectors
and interests in wetlands preservation. We look forward to working with
each of you, and your respective staff, in this regard.
Again, I thank the members of this subcommittee for holding these
hearings. The National Aggregates Association appreciates your time and
consideration of our views.
______
Prepared Statement of Cynthia M. Sarthou, Gulf Restoration Network
Dear Chairman Inhofe: The Gulf Restoration Network requests that
this written testimony be included in the record of the June 12, 1997
hearing on Recent Administrative and Judicial Developments in the Clean
Water Act 404 Permit Program, held before the Clean Air, Wetlands,
Private Property, and Nuclear Safety Subcommittee of the Senate
Environment and Public Works Committee.
The Gulf Restoration Network (GRN) is a diverse coalition of over
30 local, regional, and national organizations concerned about the
short- and long-term health of the Gulf of Mexico, and committed to
restoring it to an ecologically and biologically sustainable condition.
Members of the Network are located in each of the States along the Gulf
of Mexico.
i. wetlands loss in gulf states
Gulf States have suffered substantial losses of wetlands.
Information available to the GRN establishes that:
Alabama has lost over 50 percent of its original wetlands (over
3.78 million acres lost).
Florida has lost over 46 percent of its original wetlands (over
9.29 million acres lost).
Louisiana has lost over 46 percent of its original wetlands (over
7.41 million acres lost). In addition to other losses, Louisiana is
losing 35 square miles of valuable coastal wetlands each year as a
result of subsidence, dredging, and increased human intervention and
use of the waters of the Mississippi River. The continuing loss of
Louisiana wetlands threatens a thriving commercial and recreational
fishery and the communities dependent on those resources.
Mississippi has lost over 59 percent of its original wetlands (over
5.81 million acres lost).
Texas has lost over 52 percent of its original wetlands (over 8.39
million acres lost).
All fish and wildlife, including many endangered and threatened
species, dependent on the Gulf system are at increasing risk due to
this habitat loss. This includes 75 percent of the Nation's migratory
waterfowl, for which the Gulf and its associated estuaries and wetlands
provide critical habitat. The tremendous wetlands losses also place at
risk 98 percent of all seafood species commercially harvested in the
Gulf. These species rely on wetlands to provide habitat for part of
their lives.
Wetland losses place the Gulf States at increased risk from
flooding and hurricanes. Wetlands provide valuable protection from
damage associated with floods and hurricanes. The remaining U.S.
wetlands are estimated to save tens of billions of dollars in flood
damage costs each year.
The GRN strongly opposes the continued destruction of wetlands
throughout the Gulf region, and nationwide permits (NWPs) that
contribute to this loss. This is particularly true with regard to NWP
26.
ii. nationwide permit 26
Prior to it recent amendment, NWP 26 authorized the discharge of
dredge and fill material into wetlands, resulting in destruction of up
to one acre of isolated and headwater wetlands without notice, and up
to 10 acres if notice requirements were satisfied. NWP 26 authorized
more than minimal adverse environmental impacts, both singularly and
cumulatively.
In reissuing NWP 26 with lower thresholds, the U.S. Army Corps of
Engineers (Corps) has attempted to reduce the destruction attendant to
the use of this permit. Nevertheless, even as amended, NWP 26 flies in
the face of existing law. Section 404(e)(1) requires that NWPs be
focused on categories of activities. NWP 26 is not category specific,
rather it exempts activities on the basis of where they are located.
Thus, even as amended, NWP 26 clearly violates the Clean Water Act. NWP
26 must, therefore, be eliminated.
We urge the subcommittee to support the decision of the Corps to
eliminate NWP 26 within two years. The continuing destruction of tens
of thousands of acres of isolated wetlands and headwater streams,
without notice to the public and virtually no environmental review, is
not in the public interest and simply must not continue.
iii. problems associated with all nwps
The GRN also asks that the subcommittee address factors which
exacerbate the negative impacts attendant to the use of all NWPs.
A. Statutory Requirements
Section 404(e)(1) of the Clean Water Act, 33 U.S.C. Sec. 1344(e)(1)
(hereinafter section 404(e)(1)), authorizes the Corps to issue general
permits that provide blanket approval to narrow categories of
activities that are ``similar in nature'' and ``will have only minimal
adverse environmental impacts'' both separately and cumulatively.
Historically, the Corps has ignored the plain language of section
404(e)(1).
Section 404(e)(1) specifically provides that the Secretary of the
Army may issue nationwide permits only if he/she determines that the
activities in any category will have ``only minimal cumulative adverse
effect on the environment.'' In blatant disregard for this unambiguous
requirement, the Corps has issued NWPs which authorize a wide range of
activities that result in significant individual and cumulative adverse
environmental impacts.
The Corps cannot establish that nationwide permits, particularly
NWP 26, meet the requirements of section 404(e)(1), for they have
failed to track the cumulative impacts attendant to the use of NWPs.
Indeed, Michael L. Davis, Deputy Assistant Secretary of the Army for
Civil Works, has admitted that no documentation of the cumulative
impacts of NWPs exists. According to Mr. Davis, the Corps merely has:
a general sense of the impacts for those where reporting is
necessary. For the most part, the ones that have effects on
wetlands are reported. So we have an idea of the amount of
activity that's going on in the general permit program. In
terms of cumulative impacts, it's an area we could probably
make some improvement. (sic) 18 National Wetlands Newsletter
4:19 (July-August 1996).
The Corps must establish a system of meaningful recordkeeping of
all environmental impacts attendant to the use of NWPs and the success
of efforts to mitigate those impacts. Only in this way can the Corps
comply with its statutory duty to in-
sure that NWPs truly have ``only minimal adverse environmental
impacts'' both separately and cumulatively.
B. Consultation With State and Federal Agencies
The United States Environmental Protection Agency (EPA), the United
States Fish and Wildlife Service (FWS), and the National Marine
Fisheries Service (NMFS), have been accorded a role in reviewing and
commenting on proposals which contemplate the destruction of wetlands.
33 U.S.C. Sec. 1344(m). The Corps has often ignored the requirement for
interagency consultation. Thus, Federal agencies must be kept informed
of the use of nationwide permits, and their comments accorded the
utmost deference.
Section 401 of the Clean Water Act, 33 U.S.C. Sec. 1341, also
requires that States be afforded the opportunity to review applications
for Federal wetlands permits to determine whether the permit would
allow impacts that violate State water quality standards. The statute
further requires that, as a condition for issuance of a permit, a State
has the right to certify whether the proposed project complies with
State water quality standards. A State's denial of certification
prevents issuance of the permit. In spite of the clear authority
conferred upon States by section 401, the Corps has continued to allow
the use of NWPs in States that have denied certification of those
permits. This must stop.
C. Independent Verification and Monitoring
In the past, where an NWP required reporting of wetlands impacts,
the Corps has placed great reliance on the data supplied by NWP
applicants. Rarely has the Corps independently verified this
information. As a result, there has been significant abuse of NWPs,
especially with regard to under-reporting of wetlands impacts so that
applicants can fall under the NWP. The GRN believes that the Corps must
attach reporting requirements to all NWPs. Moreover, the Corps must
commit to establishing a system for independent verification of
applicant data.
The Corps has now attached conditions to several NWPs which limit
their use. Although in theory, satisfaction of the stated conditions
might avoid the potential for significant adverse impacts on wetlands,
the Corps has rarely monitored or enforced compliance with existing
permit conditions. For those NWPs that are reissued, the Corps must
establish a system for monitoring and enforcing permit conditions.
Moreover, where violations are found, the Corps must vigorously pursue
penalties against the violators.
D. Stacking of Nationwide Permits
The Corps has in many circumstances allowed applicants to combine,
or stack, NWPs (i.e. simultaneously rely on more than one NWP for a
single project.). NWPs that are often stacked include, but are not
limited to, NWP 12, NWP 14, NWP 18, NWP 19, NWP 26, and NWP 33.
Although separately each action may have only minimal impacts on
wetlands, when combined the impacts may be quite significant. Moreover,
by stacking these permits both the permittees and the Corps have
avoided the full environmental and public review that would otherwise
be required for impacts of this magnitude. In order to comply with its
statutory duties, the Corps must prohibit stacking of NWPs. Only in
this way will the Corps be able to ensure that NWPs do not, separately
or in combination, result in adverse environmental impacts.
E. Mitigation
One of the ``Section 404 Only Conditions'' provides that discharges
of dredge and fill materials into wetlands must be minimized unless the
District Engineer approves a compensatory mitigation plan for the
specific regulated activity. The Corps seeks to modify the language of
this condition to require that a permittee need not comply with
minimization requirements if the District Engineer determines that a
compensatory plan ``is more beneficial to the environment than on-site
minimization or avoidance measures.''
Mitigation is far from the panacea that some contend. Mitigation
measures frequently fail to live up to their promise and often are
never implemented at all. The most egregious flaw in present mitigation
approaches is the preservation of existing wetlands as mitigation and
compensation. Preservation of existing wetlands in order to allow the
destruction of other existing wetlands guarantees that there will be a
net loss of wetlands. Additionally, existing mitigation agreements far
too often allow replacement of one wetland community type with another
community type, or allow for mitigation in a different watershed or
drainage. This allows for the complete destruction of specific wetland
types, preventing efforts to achieve no net loss of wetland functions.
Mitigation of this type also fails to compensate for the destruction
suffered by a particular watershed or drainage. Finally, mitigation
agreements fre-
quently fail to include monitoring requirements. Without monitoring,
the Corps cannot determine the success of mitigation efforts.
Applicants must always be required first to avoid and minimize
destruction of wetlands. Mitigation should be allowed only where
avoidance and minimization are not possible. Additionally, District
Engineer approval of mitigation plans should be allowed only where the
plan requires both in-kind compensation for wetlands destruction and
monitoring.
iv. conclusion
The GRN urges the subcommittee to support the Corps decision to
eliminate NWP 26. We would also ask that the subcommittee address those
problems attendant to the use of all NWPs as you consider
reauthorization of section 404 of the CWA. Finally, we request that in
reauthorizing section 404 the subcommittee commit to the avoidance of
the unnecessary destruction of wetlands, and substantial improvement in
government accountability.
We appreciate your attention to this important matter.
______
Prepared Statement of the National Association of Realtors
introduction
Thank you for the opportunity to submit comments from the NATIONAL
ASSOCIATION OF REALTORS (NAR) for the record on your hearing
on recent regulatory and judicial developments concerning the section
404 permitting program of the Water Pollution Control Act. NAR,
comprised of nearly 730,000 members involved in all aspects of the real
estate industry, has a keen interest in the Clean Water Act, wetlands,
and private property rights. The NAR commends Chairman Inhofe and the
subcommittee for taking a leadership role on this issue.
The Association believes that development should be encouraged as
it is a stimulus to the economy, increases the tax base, provides
places to live and work, and offers economic opportunities to the
citizens of a community. However, we also realize the responsibility we
have to work with government officials to plan for responsible
development which balances transportation, housing, agriculture,
commercial, industrial, and environmental concerns.
recent changes to the section 404 program
Two recent changes to the section 404 program underscore the need
for legislative action and congressional oversight. First, on December
13, 1997, the U.S. Army Corps of Engineers (USACE) reissued its
nationwide permit program, which included major policy changes. Second,
on January 23, 1997, a D.C. Federal District Court nullified the so-
called Tulloch rule as exceeding the statutory limits of the section
404 program. Both of these policy decisions affect thousands of
development and construction activities and REALTORS
nationwide.
Regarding the issues surrounding the Tulloch decision, we look
forward to the opportunity to work with the committee toward the
development of balanced legislation that will improve the section 404
program to ensure that it will achieve its goals while addressing the
concerns of those subject to its regulation.
The changes to the Nationwide Permit Program, in particular NWP 26,
were also significant. NWP 26 allows development at the headwaters of
streams and lakes, and in isolated and small wetlands. Three
programmatic changes to NWP 26--the 3-acre size limit, the 500-linear-
foot limit along streambeds, and the ``no permit-stacking'' rule--
severely restrict the application of NWP 26. NWP 26 is the most widely-
used nationwide permit. In addition, NAR is concerned that sunsetting
NWP 26 on December 13, 1998 in favor of ``activity specific''
replacement permits may have a much narrower application and that the
number of individual permits required annually will increase
substantially, slowing the program down dramatically. The NAR has
joined the National Association of Homebuilders in a lawsuit to sue the
USACE for violating the U.S. Administrative Procedures Act in
implementing the changes to NWP 26.
NAR believes the time is right for the 105th Congress to legislate
improvements to the section 404 program and NAR stands ready to play a
constructive role in the development and enactment of any such
legislation.
nar legislative recommendations
The NATIONAL ASSOCIATION OF REALTORS supports passage of
legislation which includes:
a standardized wetlands definition applicable to all
Federal agencies and which requires clear scientific evidence of each
wetland indicator (hydrophytic vegetation, hydric soils, and
hydrology);
a streamlined permitting process which allows those
seeking permits to make application to and receive a response from a
single Federal agency;
the creation of a priority wetlands ranking system, which
provides for protection of ecologically significant wetlands but allows
permits to be issued in the case of wetlands of lesser environmental
importance;
a requirement that all local authorities and affected
property owners be notified of wetlands inventories to be conducted in
their States, and of proposed wetlands jurisdictional determinations;
the use of wetlands mitigation banking as an alternative
to the prohibition on the use of wetlands;
increased public participation in Federal, State, and
local wetlands decisionmaking; and
man-made wet areas, such as ditches, culverts, ponds, or
waste lagoons that were intentionally or accidentally created where
non-wetlands once existed should be exempt from wetlands regulation.
NAR supports a policy which will provide for a classification
system for wetlands. We agree that the most environmentally sensitive
and useful wetlands should be protected because they serve vital
ecological functions, such as storm buffers, flood control, and habitat
spawning areas. However, current Federal policy lacks the flexibility
to differentiate between vital ecological wetlands and lands which
serve a marginal environmental purpose.
NAR supports a ranking system that protects the most valuable
wetlands, while allowing private landowners of less ecologically
sensitive properties the right to develop lands as they see fit, within
local planning and zoning parameters.
nar and private property rights
NAR's concerns extend beyond the immediate interests of the real
estate industry. Because over 70 percent of our Nation's wetlands are
owned by private citizens, we also wish to direct attention to the
larger issue of protecting private property rights.
The NATIONAL ASSOCIATION OF REALTORS has worked for
years to encourage a balanced approach to environmental protection that
accommodates the need for both conservation and economic opportunity.
To balance the efforts of government to protect public health by
controlling pollution and protecting natural resources with the
economic and property rights secured by the Constitution, we believe
that the cost of the benefits to the general public achieved by such
regulation should be borne by the beneficiaries--the general public. We
oppose those aspects of environmental and natural resource legislation
that amount to uncompensated condemnation of private property through
government action. It is essential that the rights of private property
owners be fully recognized in local, State, and Federal programs and
laws.
In this context, the NATIONAL ASSOCIATION OF REALTORS
believes that Federal wetlands regulation must acknowledge that the
prohibition of all reasonable use of a property by denial of a required
wetlands permit results in a ``taking'' of the property within the
meaning of the Fifth Amendment's ``just compensation'' clause, which
requires compensation to be paid to the affected property owner. This
result is made clear by the decision of the Court of Appeals for the
Federal Circuit in Loveladies Harbor Inc. v. the United States, as well
as holdings of the United States Claims Court in Formanek v. United
States and Bowles v. United States.
In each of these cases, the Army Corps of Engineers denial of a
permit to place fill on wetlands so diminished the owner's property
interest as to result in a ``taking,'' entitling the property owner to
the just compensation mandated by the Fifth Amendment. Moreover, the
Supreme Court's decision in Lucas v. South Carolina Coastal Council
reaffirms the vitality of the protection of property rights provided by
the Fifth Amendment by establishing what the Court termed a
``categorical'' rule requiring compensation when all economically
viable use of a property is eliminated. The Court made it clear that
compensation is a constitutional requirement except in those rare cases
where regulation merely implements limitations on use of the property
already imposed by the common law of nuisance or property.
To prevent other property owners from becoming embroiled in years
of litigation and spending huge sums of money, Federal wetlands
regulation should require the regulating agency to expressly consider
the implications of permit denials on private property rights. In
particular, the law should require that any wholesale denial of use be
carefully analyzed to determine the extent of compensation to be
provided to the affected property owner. In a few cases, such analysis
may determine that the action falls within the unique circumstances
suggested by Lucas where the government need not provide compensation
because the proposed use would constitute a common law nuisance.
Just as importantly, Federal wetlands legislation should require
that complete denials of use be clearly justified and imposed only
where the affected area is of such extreme ecological significance and
vulnerability as to justify such drastic action. Regulation should
require the regulator to permit beneficial uses of wetlands which do
not present a real and significant threat to substantial public
interests. Preservation of important wetlands can also be accomplished
by providing financial incentives for property owners to leave wetlands
on their land undisturbed. This would also relieve builders, for
example, from unfairly bearing the cost of environmental improvement or
protection, the cost of which is generally passed on to homebuyers.
The NATIONAL ASSOCIATION OF REALTORS strongly believes
that Federal wetlands regulation should be strengthened to preserve the
fundamental right of all private property owners, working through local
government, to determine and enjoy the highest and best use of their
land. To be sure, NAR recognizes that the application of some
restrictions on property use serves the interests of all, but NAR
believes that all citizens have the right to acquire and use real
property with the confidence and certainty that the value of their
property will not be unduly diminished or jeopardized by governmental
action at any level without the owner's express consent.
summary and conclusions
The recent administrative and judicial changes that have occurred
will have far-reaching impacts on the economy, our communities and the
environment. NAR believes legislation that protects private property
while balancing environmental concerns with the needs of communities to
grow and prosper would be an appropriate vehicle to reform the Water
Pollution Control Act. The changes that have occurred to section 404
place in jeopardy the right of property owners to maximize the value of
their property. NAR is prepared to work closely with this subcommittee
to ensure that future wetlands policy is environmentally sensitive, yet
allows our Nation to be economically competitive. Thank you for the
opportunity to express our views.
______
Prepared Statement of H. Leighton Steward, National Wetlands Coalition
Mr. Chairman, my name is H. Leighton Steward. I am the chairman,
president, and chief executive officer of the Louisiana Land and
Exploration Company and also serve as the chair of The National
Wetlands Coalition. A list of our members is attached. Thank you for
calling this important hearing on recent administrative and judicial
changes to section 404 of the Water Pollution Control Act and allowing
the Coalition to submit this testimony, which we request be made part
of the record of the hearing.
The National Wetlands Coalition was formed in September 1989 for
the single purpose of participating in the national debate regarding
the operation of the Federal section 404 ``wetlands'' permitting
program. We acknowledge the importance of functioning wetlands, support
the existence of a Federal wetlands permitting program, and support the
proposed national goal of ``no overall net loss of wetlands functions
and values.'' Nevertheless, we are concerned that Federal court
decisions and agency actions have created a national program that far
exceeds congressional intent as expressed by legislative action in both
1972 and 1997. Therefore, we believe that the 105th Congress can and
should act legislatively to improve the section 404 program. We look
forward to working with the Senate Environment and Public Works
Committee to that end.
The subject of this hearing underscores the need for legislative
action regarding the section 404 program. Two recent actions by the
judiciary and an agency have changed the section 404 program
substantially. First, on December 13, 1996, the Army Corps of Engineers
reissued its nationwide permits, effective February 11, 1997, for 5
years. The Corps included significant policy changes in the Nationwide
Permit Program, the most prominent of which is to ``sunset'' Nationwide
Permit 26 on December 13, 1998. Then, on January 23, 1997, a Federal
District Court in the District of Columbia, in American Mining Congress
v. Army Corps of Engineers, nullified the so-called Tulloch rule as
exceeding the statutory limits of the section 404 program. The Tulloch
rule was issued on August 24, 1993, as the centerpiece of President
Clinton's package of proposed section 404 reforms and extended, in a
very indirect fashion, the section 404 permitting program to cover
``excavation and drainage'' of jurisdictional wetlands.
Both of these major policy decisions affect directly tens of
thousands of activities nationwide annually and directly affect tens of
thousands of American citizens. Neither policy decision was initiated
or sanctioned by the elected representatives of our Nation: the United
States Congress.
Let us address each of these major policy changes.
the tulloch rule
The National Wetlands Coalition agrees with both the general intent
of the Tulloch rule and the Federal District Court's decision in
American Mining Congress v. Army Corps of Engineers. In the context of
broad programmatic reform, the Coalition agrees that the section 404
permitting program should be expanded to require a permit for
``drainage'' or ``excavation'' of a jurisdictional wetland. However, we
also agree strongly that this expansion of the section 404 program can
only be achieved through legislation.
In April, U.S. District Judge Stanley Harris remarked that ``even
apart from the Court's conclusion that the agencies exceeded their
statutory authority in promulgating the Tulloch rule, the Court
interprets the rather remarkable White House press release announcing
the rule, which stated that ``Congress should amend the Clean Water Act
to make it consistent with the agencies' rulemaking'' in effect as an
acknowledgment by the Executive Branch that the rule exceeded
permissible statutory bounds.'' American Mining Congress v. U.S. Army
Corps of Engineers, No. 93-1754 SSH (D.C.D.C. April 2, 1997) (order
denying defendant's motion to alter or amend judgment). Clearly,
defining the jurisdictional reach of a Federal regulatory program is a
job for our elected representatives.
The National Wetlands Coalition stands ready to support legislation
that expands the section 404 program to cover ``excavation'' and
``drainage,'' but only if certain reforms sought by the Coalition are
included in such legislation. This has been the consistent position of
the Coalition since we endorsed H.R. 1330, the Comprehensive Wetlands
Conservation and Management Act when it was first introduced in the
House of Representatives in early 1991. The Coalition has supported
later versions of this legislation that was introduced in the U.S.
Senate in several past Congresses. We look forward to the opportunity
to work with the committee toward the development of balanced
legislation that will improve the section 404 program to ensure that it
will achieve its goals while addressing the concerns of those subject
to its regulation.
the nationwide permit program
The Importance of the Nationwide Permit Program
An effective and available nationwide permit program, augmented
where appropriate with regional and local general permits, is essential
to the operation of the section 404 permitting program. The definition
of a jurisdictional wetland under the section 404 program is so
expansive and the definition of a jurisdictional activity requiring a
permit is so broad, particularly if expanded to cover ``drainage'' and
``excavation,'' that hundreds of thousands of activities nationwide
annually could require a section 404 permit. The 1,150 Corps of
Engineers employees that are deployed nationwide could not possibly
process hundreds of thousands of individual section 404 permits
annually. The result would be chaos. Either thousands of Americans
would be in violation of the program or long delays would precede the
most routine activities--either of which would bring political pressure
to bear to repeal or substantially scale back the section 404 program.
The Frequency of Use of NWP 26
According to the notice filed by the Corps of Engineers in the
December 13, 1996 Federal Register, approximately 7,000 individual
section 404 permits were issued nationwide in fiscal year 1995.
However, the Corps provided written authorization for over 43,000
activities under nationwide permits in 1995. Interestingly, according
to this notice, Nationwide Permit (NWP) 26 was used to authorize
approximately 34,000 activities in fiscal year 1995. NWP 26, prior to
December 13, 1996, allowed the disturbance of up to 10 acres of
isolated wetlands or wetlands located in headwaters areas of streams.
Of course the Corps retained the right, as with all nationwide permits,
to deny the use of the nationwide permit in any instance where Corps
officials judged the wetlands impacts of the proposed activity to be
greater than de minimus on an individual or cumulative basis.
Three changes to NWP 26 will limit its availability. First, prior
to December 13, 1998, NWP 26 is limited to 3 acres of disturbance,
rather than 10 acres. Second, the Corps for the first time has imposed
in NWP 26 a 500-linear-foot limit along stream beds. Finally, NWP 26
will disappear completely on December 13, 1998. A further change,
requiring pre-discharge notification whenever one-third acre of wetland
would be affected by use of NWP 26, will also delay access to the
permit.
We can all speculate on how many of the estimated 34,000 annual
uses of NWP 26 will now require individual section 404 permits in the
period between February 11, 1997 (the effective date of the new NWPs)
and December 13, 1998, the expiration date of NWP 26. How many
activities in previous years impacted headwaters and isolated wetlands
from 3 to 10 acres in size? How many activities will fail to qualify
due to the 500-linear-foot rule? How many activities previously using
NWP 26 will qualify for another NWP?
However, beginning December 13, 1998, an estimated 34,000
additional activities annually (those currently permitted under NWP 26)
could require individual permits. This number will be reduced by the
number of activities that can qualify for other nationwide permits
either in existence today or which may be issued by the Corps of
Engineers prior to December 13, 1998. To state the obvious: the section
404 permitting program will grind to a halt if the number of individual
404 permits processed annually increases from 7,000 to 41,000. A huge
outcry for the repeal of the program would follow this development.
Two other actions taken by the Corps under the Nationwide Permit
Program will further limit access to these permits. First, the Corps
has stated its intention to review its policy on compensatory
mitigation in the context of the Nationwide Permit Program.
Specifically, the Corps intends to review whether it should continue to
allow applicants to provide compensatory mitigation in order to reduce
the impacts of proposed projects to a minimal level in order then to
qualify for a nationwide permit. Canceling this ``buy-down'' policy
could require significantly more projects to apply for individual
section 404 permits, further adding to the current strain on Corps
resources.
Also during the reauthorization of the nationwide permits in
December of last year, the Corps placed limitations on the use of
multiple nationwide permits for a single project, a practice known as
``stacking.'' Now, for example, NWP 14, which authorizes fills of up to
one-third of an acre for road crossings, cannot be combined with NWP
26, which now authorizes fills of up to 3 acres. Previously, stacking''
these two permits would allow activities on 3\1/3\ acres of wetlands.
This change has further limited the availability of the Nationwide
Permit Program to permit applicants.
Coalition Recommendations
The National Wetlands Coalition understands that the Corps of
Engineers intends to issue perhaps a dozen or more new ``activity
specific'' nationwide permits to replace NWP 26. We encourage the
Congress to ensure that these permits are in place before December 13,
1998, the date NWP 26 expires.
We are concerned that the ``activity specific'' replacement permits
may not be sufficient and that the number of individual permits
required annually will still increase substantially, despite the best
efforts of the Corps. We note that President Clinton's proposed
wetlands reforms of August 1993 include a recommendation that Congress
amend section 404 to clarify that general (nationwide) permits may be
issued for ``categories of waters'' as well as for ``specific
activities.'' This legislative change would end the debate over whether
the Corps has the authority to issue a general permit for
``headwaters'' or ``isolated wetlands.'' Of course, the Corps would
retain the power to deny use of such permits where the proposed
activity would result in more than minimal adverse environmental
effects either individually or cumulatively.
The NWC encourages the committee to report legislation in this
Congress that provides authority to the Corps to issue general permits
for ``categories of waters,'' as recommended by the President on August
24, 1993.
summary
The National Wetlands Coalition believes that the time has come for
the 105th Congress to legislate improvements to the section 404 program
for the first time since 1977. Twenty years of program evolution
through judicial decisions and agency interpretations should give way
to considered judgments about this program by the elected
representatives of the Nation. The National Wetlands Coalition stands
ready to play a constructive role in the development and enactment of
any such legislation.
[GRAPHIC] [TIFF OMITTED] T6779.055
Prepared Statement of the National Wildlife Federation
i. introduction
The National Wildlife Federation (NWF) presents this written
testimony to the Clean Air, Wetlands, Private Property, and Nuclear
Safety Subcommittee of the Senate Environment and Public Works
Committee. NWF is the Nation's largest conservation, education, and
advocacy organization. Founded in 1936, NWF works to educate, inspire,
and assist individuals and organizations of diverse cultures to
conserve wildlife and other natural resources and to protect the
environment in order to achieve a peaceful, equitable, and sustainable
future. Our members are deeply concerned about continuing losses of
wetlands, and have long worked to protect and conserve our Nation's
valuable wetland resources and other waters.
America's wetlands provide vital environmental, cultural, and
economic services. Millions of Americans depend on the services
wetlands provide for their jobs, including those in the commercial
fishing, tourism, and recreation industries. Millions more have found a
sense of self, of family, of community rooted in the experience of
hunting, fishing, birdwatching, or boating in wetlands that are now
threatened with development. The official subjects of this hearing--a
recent decision by the U.S. Army Corps of Engineers to close the single
largest loophole in the permitting program (Nationwide Permit 26), and
an unrelated court decision striking down another important Corps
regulation (the Tulloch Rule)--are esoteric and technical. A single
thread does however connect the two issues. In each case, the pursuit
of private gain has led a few wetlands developers to try to block the
Corps' efforts to prevent needless waste of wetlands, and to defy both
science and balanced conservation ethics.
Historic mismanagement of the Nation's wetlands resources has been
costly, in both social and ecological terms. In 1949, the great
conservationist Aldo Leopold observed that:
Our present problem is one of attitudes and implements. We are
remodeling the Alhambra with a steam shovel, and we are proud
of the yardage. We shall hardly relinquish the shovel, which
after all has many good points, but we are in need of gentler
and more objective criteria for its successful use. (The Land
Ethic, in A Sand County Almanac, 263-264 (1966)).
Indeed, steam shovels, backhoes, and tiles have filled or drained well
over 100 million acres of wetlands since the 1780's, over half the
wetlands in the contiguous United States.
The Clean Water Act (CWA) has provided Leopold's ``gentler and more
objective criteria.'' Since its passage, and because of it, wetlands
loss has been greatly reduced, though we continue to lose many more
wetlands annually than we recover through restoration efforts, and we
continue to lose wetlands that cannot be replaced within our lifetimes
or perhaps ever. The thrust of the CWA section 404 wetlands program is
concise and modest: To prevent unnecessary wetlands loss, and, where
possible, to replace those wetlands that must be destroyed. To meet
this goal, the section 404 program requires applicants for permits to
avoid destruction where possible; to minimize destruction that cannot
be avoided; and, where practicable, to compensate for remaining losses.
These steps, taken in order, are known as ``mitigation sequencing,''
and they are the heart of the wetlands program.
Over the last 25 years, the Corps has implemented mitigation
sequencing with only limited success. Over time, with much pressure
from outside the agency, the Corps has slowly become more responsive
both to its mandate from Congress to protect wetlands and other water
resources, and to the need to deal fairly and conscientiously with the
public it regulates. Nonetheless, the Corps is hamstrung by meager
budgets and a fragmented structure that undermines consistent
implementation of wetlands protections.
The public also has come to appreciate the value of wetlands.
Voters know the vital role wetlands play in recharging underground
aquifers, which nearly half of us rely upon for drinking water. The
public also knows that wetlands protect water quality; that they slow
flood waters, protecting people and property. Millions of Americans
have fished or hunted, or simply enjoyed wetlands, streams, and lakes
as open space. For many, these memories are deeply tied to our sense of
personal and social continuity: Where we grew up, and what we will
leave behind for future generations. Moreover, many citizens have
become alarmed as the wetlands and other waters we have known and loved
were drained, or filled, or paved over for sprawl. This is why 70
percent of Americans list loss of open space, of personally special
places, as a top conservation concern.
America's growing appreciation of the need to avoid unnecessary
destruction of wetlands and other waters makes application of section
404's core principle of mitigation sequencing a matter of common sense.
Yet, at every step along the way, a limited set of regulated industries
has fought tooth and nail against the most moderate protections, first
by characterizing the wetlands program as oppressive and unfair; then
by trying to downplay the value of wetlands. Most recently, opponents
of wetlands protections have tried to argue that the problem of
wetlands loss simply does not exist. This myth is refuted by the
experience of homeowners who have seen their communities flooded as a
result of drainage of wetlands upstream. In making these arguments,
wetland developers have taken increasingly greater liberties with
mainstream science and real-world data, and have come to rely
increasingly on political and legal claims that have little relation to
real-life wetlands or to the section 404 program as it actually
operates on the ground.
Of course, industry does have a real-world motive for throwing
these roadblocks in the Corps' path: Even a balanced regulatory process
has a price. To be sure, regulation halts few projects: Between 95
percent and 97 percent of individual permit applications are approved.
But wetlands developers can realize even greater private gain by
eliminating responsible environmental review. Activities that pass
through individual review are subject to at least 30 days of public
notice and comment and are also reviewed by other Federal resource
agencies with greater experience and expertise than the Corps in
wildlife and environmental resources. Without that public notice,
without that resource agency review, mitigation sequencing does not
occur. But whereas abbreviated permitting, with no public notice and
little review takes less than one month, the individual review process
does take, on average, between 3 to 4 months. A few projects take much
longer, usually because the project sponsor proposes a great deal of
unnecessary wetlands loss and has to be convinced to reduce impacts by
the Corps, other agencies, and the public.
The tendency of some members of industry to grab any tool at hand
to stave off common-sense regulation has reached a new level regarding
the two issues before this subcommittee: NWP 26 and the Tulloch Rule.
In each case, wetland developers have brought suit against the Corps,
not because the Corps has abandoned science or sound conservation
policy, but because the Corps has attempted to meaningfully apply
mitigation sequencing to their activities. Both Nationwide Permit 26
and the Corps' inconsistent regulation of excavation before 1993 caused
significant ecological harms, and the regulated industries have not
challenged the scientific basis for the Corps' decision in either case.
This testimony addresses the Corps' decision to phase out
Nationwide Permit 26 (NWP 26), an administratively-created loophole
that has allowed tens of thousands of acres of potentially unnecessary
development in isolated wetlands and headwater streams. It then
discusses the Tulloch Rule, in which the Corps asserted its authority
to regulate excavation activities in wetlands. Two documents cited
below are attached and are submitted as part of this testimony: NWF's
September 3, 1996 comments on the Corps' proposal to reissue the
nationwides, including most importantly our comments on NWP 26; and
NWF's August 14, 1992 comments on the Corps' proposal to issue the
Tulloch Rule.
A special note is in order on the discussion of the Tulloch Rule.
On the day after the June 26, 1997 hearing for which this testimony is
submitted, the D.C. Circuit temporarily reaffirmed that the Corps can
equitably regulate excavation that destroys wetlands. As discussed
below, NWF has joined with the Corps and EPA in appealing the January
1997 decision of the D.C. District Court striking down the Tulloch
Rule. On June 27, 1997, the D.C. Circuit granted our motion for a stay
of the District Court's order, recognizing the irreparable harm that
can attend unregulated excavation activities. The stay does not decide
the underlying question--whether the Corps has authority to regulate
excavation activities--but it does indicate that the Corps has not
overreached in asserting its authority to prevent real harms to the
Nation's rivers and wetlands.
ii. the elimination of nwp 26: a step in the right direction
The Corps' decision to phase out NWP 26 has produced dire and
overheated rhetoric from certain wetlands developers. On the contrary,
the 2-year phase out of NWP 26 is a cautious and modest step toward
reasonable wetlands protection, and it will not cause growth and
development to grind to a halt. To understand why conservationists,
State and local officials, and other Federal agencies have supported
the Corps' decision to eventually eliminate this permit, it helps to
understand what nationwide permits are, and the adverse impacts of NWP
26 that warrant its retirement.
In 1977, Congress reauthorized the 1972 Clean Water Act, in the
process affirming that the section 404 dredge and fill program applied
to wetlands in addition to more traditionally ``navigable'' rivers,
lakes, and estuaries.\1\ During the reauthorization process, Congress
recognized that there were activities that take place in wetlands and
other ``waters of the United States'' that have few or no impacts.
Classic examples of these types of projects are mooring or navigational
buoys, or boat ramps on the sides of streams and lakes. Rather than
forcing these projects go through the individual permit process, with
public notice and comment and resource agency review, Congress gave the
Corps authority to issue ``general permits.'' General permits (GPS)
amount to blanket, up-front authorizations for categories of
activities, and they displace the requirement for an individual permit
for qualifying activities. The statutory criteria for general permits,
listed in CWA 404(e), are that they must cover activities that are
``similar in nature,'' and that those activities must have ``minimal
individual and cumulative impacts.''
---------------------------------------------------------------------------
\1\ The fiction that Congress never intended the CWA section 404
program to regulate wetlands, though still periodically invoked by
wetlands developers, was laid to rest in 1977. Indeed, in 1975, when
the Corps first issued its regulations to implement the section 404
program and limited its jurisdiction to traditionally navigable waters,
it was firmly reproved in the courts. Deciding on summary judgment, the
court in NRDC v. Callaway, 392 F. Supp. 685 (D.D.C. 1975) held that
Congress in 1972 had intended CWA protections to be read expansively.
In 1977, legislative proposals to limit the jurisdiction of CWA section
404 to exclude many wetlands were rejected in favor of reaffirming the
broad reach of the program: ``the legislation as ultimately passed, in
the words of Senator Baker, retained the comprehensive jurisdiction
over the Nation's waters exercised in the 1972 Federal Water Pollution
Control Act.'' United States v. Riverside Bayview Homes Inc., 106 S.
Ct. 455, 464 (1985).
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Over the last two decades, the Corps has issued general permits
well beyond the bounds set by CWA 404(e), and now processes 90 percent
of projects through general permits. There are 39 general permits that
are issued by Corps headquarters; these known as ``nationwides.'' In
addition, there are hundreds of local or regional general permits
issued by one or more Corps Districts. Most States in New England, and
also Pennsylvania and Maryland, have had the Corps' program
unofficially delegated to them through State programmatic general
permits; in those States, the nationwides have been revoked and are not
available. All general permits, including the nationwides, do not offer
citizens any warning or any chance to influence projects, and few
provide for meaningful resource agency review.
NWP 26 is the worst of a mixed lot of general permits. Until last
December, NWP 26 authorized any type of activity with under 10 acres of
impacts in isolated wetlands or headwater streams, so long as notice
was provided to the Corps first. Projects with under one acre of direct
impacts were authorized with no requirement of notice to the Corps.
A wide range of projects have been approved under NWP 26, in clear
violation of the ``similar in nature'' stricture of CWA 404(e). Only
when this stricture is respected can the Corps and the public
accurately evaluate the likely impacts of proposed general permits.
NWF's review of Corps District records on the use of NWP 26 (as
incomplete as those records are), indicates however that the permit was
used for a wide variety of activities, including: ``bridge
construction, dam construction, golf course construction, bank
stabilization, placement of riprap, placement of culverts, road
construction, road widening, sports field construction, Wal-Mart
construction, drainage of wetlands for hay production, the dumping of
tires, sawdust, wood debris, concrete, and vegetable matter into
wetlands, stock pond construction, trout pond construction, conversion
of forested wetlands to farming, residential subdivision construction,
townhouse complex construction, mobile home construction, juvenile
detention home construction, service station construction, septic tank
drain field creation, sand mining, gravel mining, placer mining, fill
for stream crossing for cattle, drilling of exploration wells, railroad
spur line construction, and chicken composter construction.'' (NWF
comments, 40). These activities are not ``similar in nature.''
NWP 26 also violates the ``minimal impact'' limitations on general
permits. The National Academy of Sciences noted in 1995 that NWP 26's
removal of protections for isolated wetlands and headwaters lacked
scientific justification. (National Research Council, Wetlands:
Characteristics and Boundaries, 138 (1995), hereafter, NAS Study).
Indeed, as the attached NWF comments on NWP 26 describe in detail,
scientific research has shown that isolated wetlands protect water
quality of surface and groundwaters; recharge groundwater; provide
vital habitat and breeding grounds for waterfowl, amphibians, and other
game and non-game wildlife; and retain flood waters. Headwater streams
improve water quality throughout entire watersheds; provide vital
habitat, and serve as critical corridors for the passage of wildlife
between other, more isolated habitats.
Indiscriminate permitting of wetlands destruction under NWP 26 has
in fact resulted in significant impacts. Projects with ``small'' direct
impacts can still eliminate important wetlands functions. Many isolated
wetlands and headwaters are themselves small: In the Prairie Pothole
region, some 79 percent of the wetlands are less than 1 acre in size,
and could be destroyed under NWP 26 without notice to anyone. (Thomas
E. Dahl, Status of Prairie Pothole Wetlands in the United States, Table
8 (1990)). Similarly, in central North Carolina, at least 50 percent of
the wetlands and headwaters are less than 1 acre in extent. Even in
larger wetlands, an impact of \1/3\ acre can destroy or degrade
habitat, water quality, and flood control functions. Further, the
Corps' tendency to look only at the footprint of a project--ignoring
such inevitable impacts to surrounding waters as runoff and erosion--
means that the official ``impact size'' consistently understates the
damage done by wetlands development. Given the importance of isolated
wetlands and headwaters, and the impact thresholds of the permit, NWP
26 has authorized thousands of projects with more than minimal impacts,
in violation of CWA 404(e).
If some individual impacts have been more than minimal, the
cumulative environmental impacts of NWP 26 have been huge. Corps
records that have captured only a small fraction of the impacts of NWP
26 document over 32,000 acres of direct destruction in 8 years. The
resulting destruction is far worse than the mere sum of individual
losses. As the National Academy of Sciences has recognized: ``Wetlands
often occupy only a small proportion of the watershed in which they
lie, yet they often maintain exceptional biodiversity and process a
large proportion of the dissolved and suspended materials leaving
uplands, which typically occupy greater areas. When wetlands are
removed, their collective functions are likely to decrease faster than
the rate of reduction in surface area.'' (NAS Study, 34). Yet NWP 26
opens both isolated wetlands and headwater streams to unrestricted
cumulative loss, without any requirement that project proponents look
first for alternatives that do not require wetlands destruction.
Faced with the fact that NWP 26 violated the CWA both by
authorizing diverse activities in a category of waters rather than
authorizing a limited category of activities, and by permitting massive
cumulative impacts, the Corps properly declined to reissue NWP 26. NWF
and other conservation organizations urged the Corps not to reissue NWP
26 at all. Instead, the Corps has chosen the quite modest course of
reissuing NWP 26 with reduced acreage thresholds for 2 years while it
develops legal, environmentally acceptable alternatives. For the
intermediate 2 years, the Corps has lowered the medium and upper
thresholds of NWP 26 from 1 and 10 acres to \1/3\ and 3 acres,
respectively, and imposed other restrictions on the use of the permit.
NWF is monitoring the drafting of replacement permits with care. It
will be difficult to find many activities with only minimal impacts
that are not already covered by one of the 38 other nationwides in
existence. Indeed, a substantial share of projects currently authorized
by NWP 26 will likely fit under one or another of these existing
nationwides. NWF has advised the Corps that if the NWP 26 replacement
permits resemble the unnecessarily damaging and duplicative ``single-
family home'' nationwide (NWP 29), NWF will challenge them in court, as
it has NWP 29. Nonetheless, we are optimistic that, working together,
we can move ahead with the Corps, the other Federal agencies, the
States, and the regulated community, to design alternative nationwide
permits we can all support. Although NWF has been frustrated by the
Corps' delay in beginning to draft the new nationwides, and by its
failure to collect and share with the public detailed information about
its permits, NWF has remained committed to the administrative process,
trying to make it work for everyone.
The National Association of Homebuilders (NAHB), in contrast, has
headed into court to challenge the Corps' decision to phase out NWP 26.
The basic claim of NAHB--that the Corps failed to provide adequate
notice of the possibility it might decline to reissue the illegal and
destructive NWP 26 for a full 5 years, or that it might attach other
restrictions to the use of the permit--is disingenuous at best. By law,
nationwides expire by default, and cannot be replaced without
affirmative action by the Corps. Thus, all interested parties were on
notice during the reissuance process that the Corps could legally
choose simply through inaction not to reissue a given nationwide. In
fact, the Corps never succeeded in making the affirmative showings
required of it before the agency could legally reissue NWP 26, even
with the lowered thresholds. In essence, the Corps has flouted the
Clean Water Act and violated its own regulations by reissuing NWP 26
for even these 2 years, and it has done so to ease the transition for
industry.
At this point, Congress can best assure the effective and efficient
functioning of the Federal wetlands protection program by funding the
Corps adequately. The NAHB challenge will wend its way through the
courts; the Corps will proceed on its course of phasing out NWP 26 and
replacing it with narrower alternatives. Whatever the form of those
permits, better funding for the Corps' regulatory branch will both
speed the permit process for the regulated community and better protect
America's remaining wetlands, streams, and rivers. Finally, NWF urges
Congress, when it does reauthorize CWA section 404, to reaffirm the
clear limits CWA 404(e) places on the use of nationwide and other
general permits, and to emphasize the Corps' accountability to the
citizens and communities its regulations are intended to protect.
iii. the tulloch rule and the american mining congress case
The other official subject of this hearing is the Tulloch Rule,
issued in 1993, and the District Court opinion, American Mining
Congress v. USACE (D.D.C. 1997), that struck down the Rule in January
1997. On June 27, 1997, the day after this hearing, the D.C. Circuit
stayed the District Court's order, so the Tulloch Rule is now back in
effect, protecting wetlands and waters from needless loss.
In the Tulloch Rule, the Corps officially asserted its jurisdiction
to regulate under CWA 404 most activities involving excavation in
wetlands, streams, rivers, and other waters. The Corps recognized that
even where those activities did not involve massive discharges of
dredged or fill material, they almost always involved at least
``incidental fallback'' of the soil being removed by excavation. Alert
to the widespread damage to wetlands and other waters that results from
excavation activities, the Corps announced that this fallback would
trigger the CWA requirement of a dredge and fill permit for ``the
discharge of any pollutant.'' The AMC opinion rejected this rationale.
Both the government and an array of intervenors, including NWF, are
appealing the decision. Together, the government and the intervenors
also sought a stay of the District Court's order striking down the
Tulloch Rule, and we were delighted to see the stay granted. The Corps
has acted to forestall confusion in the regulated community by promptly
directing its Districts to regulate excavation activities.
For several Congresses, no one, including the regulated industries,
has seriously disputed that excavation activities are as damaging as
filling to wetlands and other protected waters. Even those legislative
proposals most hostile to science-based wetlands protection, including
H.R. 1330 and the wetlands provisions of H.R. 961 in the 104th
Congress, would have explicitly included ``excavation'' in the list of
regulated activities. It is easy to see why. The Corps has estimated
that, in the absence of the Tulloch Rule, excavation activities would
destroy annually at least 10,000 acres of wetlands, 10,000 acres of
open waters, and 1,500 miles of streams and rivers. (Declaration of
John Studt, Chief of the Corps Regulatory Branch, Defendants' Exhibit
A, Defendants Motion of Points and Authorities in Support of their
Motion for Stay Pending Appeal, AMC v. USACE). These activities would
include sand and gravel dredging, which, when not subject to Corps
conditions on how the activities are to be carried out, can result in
significant water quality impacts and can kill aquatic life and destroy
habitat along whole river segments. Other excavation activities can
include wetland drainage and stream channelization, both of which
destroy aquatic habitats and water quality, and contribute directly to
downstream flooding.
The case that gave rise to the Tulloch Rule represents a third type
of excavation project. Starting in 1987, developers on the coast of
North Carolina began to develop 700 acres of wetlands near Wilmington,
NC. Knowing that the Corps would regulate earth-moving and sidecasting
activities, the developers took special precautions. Rather than
clearing forests off the wetlands with a bulldozer (mechanized land
clearing moves large volumes of dirt and traditionally has been
regulated) the developers generally pushed over trees one at a time and
generally carried, rather than dragged, them off the wetland. The
developers then used computer models to design ditches to drain the
wetlands, and welded shut the scoops and buckets used to dig the
ditches, carrying most excavated soil out of the wetlands to an upland
site before putting it down. Of course these precautions could not keep
all excavated material from being deposited in the wetlands; dirt fell
from bulldozer treads and blades, uprooted trees, and excavation
buckets back into the wetlands. (NWF Comments on Proposed Tulloch Rule,
5-7 (1993), hereafter NWF Tulloch Comments). However, the Wilmington
District of the Corps refused to regulate the excavation activities,
claiming that this ``incidental fallback'' was de minimis, and did not
amount to a regulated discharge of dredged and fill material under CWA
section 404.
Though it cost the developers considerably more to excavate this
way than simply to bulldoze and sidecast dirt, the environmental
impacts were equally severe. Following excavation of the site, water
quality suffered; nearby lakes exceeded State and Federal water quality
standards, and increased runoff damaged the salinity balance of the
Cape Fear River and its estuary, threatening the commercially impor-
tant local shellfish industry. Wildlife also suffered; before
excavation, one wetland supported herons, wood ducks, river otters,
raccoons, coots, and kingfishers. The U.S. Fish and Wildlife Service
described the site as providing ``high quality feeding, nesting,
rearing, and cover sites for large and small mammals, avifauna,
reptiles, and amphibians.'' Following excavation, ``observers witnessed
a moonscape--trees and shrubs removed and all soil graded down to the
waterline with only sediment fences and sediment-filled ponds demarking
where the wetlands used to be.'' (NWF Tulloch Comments, 12-13 (1993)).
NWF and its State affiliate, the North Carolina Wildlife
Federation, brought suit against the Corps for failing to assert
jurisdiction over the excavation activities. The case settled; the
Corps agreed to develop and propose, through the full course of public
notice and comment, a rule that would assert jurisdiction over
excavation activities. The Tulloch Rule is the result. After full
airing before the public, the Tulloch Rule was published in the Federal
Register on August 25, 1993 (58 FR 45,008), and NWF and NCWF agreed to
dismiss its suit with prejudice.
In the AMC decision, the Federal District Court of the District of
Columbia held that the CWA does not give the Corps the authority to
regulate excavation, and that the only remedy for this omission is for
Congress to legislate that authority in the CWA reauthorization. NWF
disagrees, and has appealed the judge's decision. It is clear that
Congress intended CWA 404 to cover activities with incidental
discharge. Indeed, when Congress explicitly exempted activities (such
as normal ongoing farming practices and ditch maintenance), it noted
these activities are not exempt where they involve an incidental
discharge and affect the flow or reach of U.S. waters. Given that
Congress did not provide any express exemption for excavation
activities, the Corps was correct to conclude that Congress intended
the agency to protect wetlands and other waters from wholesale ruin
through excavation.
Left unappealed, the AMC decision would set the clock on regulation
of excavation activities back to a time when there was no clear
standard for which earth-moving activities constituted a discharge of
dredged or fill material. Before the Tulloch Rule, many Corps Districts
would not regulate the many damaging activities that resulted in only
small volume fallback of excavated material. Districts were, however,
still instructed to regulate all activities that resulted in more than
de minimis movement of earth in wetlands and other waters. Overall, the
Corps regulated such activities as drainage ditch excavation, stream
channelization, and some land clearing inconsistently and on a case-by-
case basis. As a result, an ironic consequence of industry's effort to
invalidate the Tulloch Rule is that, in the unlikely event that the
Homebuilders' challenge succeeds, businesses involved in excavation
activities will face great uncertainty about whether specific
excavation projects require permits.
Neither the AMC decision in January, nor the stay of that decision
by the D.C. Circuit, create a situation that demands congressional
intervention. With the stay granted, the Tulloch Rule has been
reinstated until the appeal settles the question one way or the other,
and the court has set out an expedited briefing schedule to resolve the
appeal in comparatively short order. At the hearing, witnesses for the
aggregates industry testified that their members are uncertain of the
reach of the initial AMC decision; the stay conclusively answers that
question, and the Corps has unhesitatingly spread the word through its
districts, so the community should be well-informed of the need to
obtain a CWA 404 authorization before excavating in wetlands.
Long term, when CWA 404 is reauthorized, it is important that the
statute clarify that it covers excavation and drainage activities. NWF
does not believe, however, that such an amendment is necessary before
the Corps can legitimately regulate excavation activities, and NWF
would not in any case be prepared to accept a weakening of other
wetlands protections to obtain this clarification. If Congress proposes
a strong reauthorization of CWA 404, NWF will actively support it. A
strong reauthorization must stress the primacy of avoiding the
unnecessary destruction of any wetland; the need for explicit curbs on
Corps abuse of its general permit authority; and tough, science-based
reforms of mitigation practices.
NWF will not acquiesce to extreme or unscientific proposals.
Proposals of this kind were circulated this spring by the National
Wetlands Coalition, calling for categorization of wetlands, weakening
EPA's role in the CWA 404 program, and mandating ad hoc revisions in
the use of plant species to identify wetlands. These kinds of proposals
have invariably led to deadlock in the past, and will consistently in
the future when they are offered.
iv. conclusion
Both NWP 26 and the Corps' pre-Tulloch practice of regulating
excavation on a case-by-case basis have allowed the needless waste of
tens of thousands or acres of wetlands, streams, and other waters. The
Corps has been faithful to the intent of the Clean Water Act in
choosing to close these avenues of wetlands destruction. NWF supports
protection of the Nation's heritage of aquatic ecosystems, upon which
our society depends for drinking water, flood control, and fisheries.
Moreover, we cannot replace these wetlands and waters. In his 1953
essay, ``the Round River,'' Aldo Leopold observed,
the outstanding scientific discovery of the twentieth century
is not television, or radio, but rather the complexity of the
land organism. Only those who know the most about it can
appreciate how little is known about it. * * * If the biota, in
the course of aeons, has built something we like but do not
understand, then who but a fool would discard seemingly useless
parts? (``The Round River'' in A Sand County Almanac, 190
(1966)).
Four decades later, we know more of wetland functions and of our
need for them; yet we still do not understand them well, and surely not
well enough to squander them:
The status of scientific knowledge about wetland restoration
and creation differs by wetland function, type, and location.
It is still uncertain if the full suite of functions provided
by a particular wetland type can be replaced. Full functional
replacement has not yet been demonstrated. * * * Complete
restoration might be impossible in some systems. (U.S.
Geological Survey, National Water Summary on Wetland Resources,
90 (1997)).
The wetlands we destroy are, in significant part, lost forever.
As a nation, we will respond to the need to conserve wetlands in
one of two ways: First, as the Clean Water Act urges, with careful
confidence, destroying no more of our waters than necessary, striving
to replace those that are unavoidably lost. Or second, as some members
of the regulated community have urged, by putting private gain first,
and pity the good citizens downstream. The Corps has chosen the first
and more responsible course of action--reasonable regulation to protect
the common good. NWF urges Congress to endorse the Corps' choice, and
to oversee the agency to ensure that its proposals for permits to
replace NWP 26 truly will ``restore, protect, and maintain'' America's
wetlands and other waters.
______
Additional Material Submitted by the National Wildlife Federation
______
National Wildlife Federation,
Washington, DC, September 3, 1996.
Sam Collinson,
Acting Chief, Office of the Chief of Engineers,
U.S. Army Corps of Engineers.
Dear Mr. Collinson: The National Wildlife Federation (NWF), the
Nation's largest conservation education organization, welcomes this
opportunity to comment on the U.S. Army Corps of Engineers' (Corps')
Proposal to Reissue, Modify, and Issue the Nationwide Permits, 61 Fed.
Reg. 30784, June 17, 1996.
For the last five years, in the guise of issuing nationwide permits
(NWPs) with ``minimal'' impacts, the Corps has abdicated its duty under
the Clean Water Act (CWA) to protect many of the Nation's most
vulnerable wetlands and waters. The Corps' nationwide permit system has
resulted in massive but uncounted wetlands losses, direct violation of
CWA Sec. 404(e) and the CWA's mandate to protect wetlands and other
``waters of the United States.'' Many of the wetlands lost under the
Corps' current nationwides have been among the most ecologically
important in the Nation. Others are merely irreplaceable.
It is time for the Corps to change course. If the Corps intends to
carry out its duty to protect waters and wetlands, it must respect the
limits CWA Sec. 404(e) places on the use of nationwides. It is time for
the Corps to cull the nationwide permits, to eliminate or revise those
that are illegal, and to implement a comprehensive nationwide tracking
system that collects meaningful impact information and is acceptable to
the public.
Unfortunately, neither the Corps' Proposal to Reissue, Modify, and
Issue the Nationwides [reissuance proposal], nor the decision documents
prepared by the Corps to justify that proposal, signal any intent to
change course. The reissuance proposal not only fails to offer
significant improvements to the flawed nationwide permit system; it
proposes to expand it by issuing four new nationwides, including
several with potentially huge cumulative impacts. The decision
documents reveal an improbably cavalier attitude towards the task of
assessing both the historical and the prospective impacts of the
nationwide permit system.
The Corps has often defended its issuance of illegal nationwide
permits by painting them as a legitimate tool to prioritize the
agency's efforts in the face of tight resources. We do not accept this
rationalization. The Corps has no authority to renounce its
responsibility to protect wetlands and other waters. Resources are
always scarce, and NWF stands ready and willing to help the Corps get
the resources it needs from Congress. We also continue to believe the
Corps can increase efficiency in less damaging ways: through improved
computer technology, increased reliance on private delineators, permit
fees, and increased coordination. We are not prepared to let the Corps
abandon America's wetlands to the ravages of the existing and proposed
nationwides.
Our comments begin by identifying three core faults of the
nationwide permit program: that the nationwide permits have unleashed
the discretion of District Engineers from the checks and balances built
into the individual Sec. 404 permit program; that the nationwide
permits have resulted in significant environmental destruction; and
that the nationwides have severely reduced the ability of ordinary
citizens to influence the projects most likely to affect wetlands in
their communities. These three flaws add up to a telling indictment of
the nationwide permit program as the Corps currently runs it. It
eliminates the accountability of regulators at the expense of the
resource and the public.
Part II of our comments provides an overview of the showings the
Corps must make--and has without exception failed so far to make--
before it can legally reissue the nationwide permit system. Part III
comments on overarching problems that plague the nationwide permit
system and must be cured, including the Corps' treatment of state water
quality and coastal programs, the inadequacies of the Corps' reporting
and monitoring system, and the Corps's failure to consult with the
federal resource agencies to protect endangered or threatened species.
Part IV comments on the nationwides individually, noting those that
cannot be reissued lawfully and suggesting ways to redraw others. NWF
notes that we are implacably opposed to the reissuance of NWP 26, for
isolated wetlands and headwaters; NWP 29, for the construction of
single-family residences; and proposed NWP B, for yet-to-be-determined
Swampbuster exemptions under the 1996 Farm Bill. NWF also notes that
NWPs 7, 15, 17, 21, 23, 32, 34, 38, 40, and proposed NWPs C and D are
illegal and beyond salvage, and we urge the Corps not to reissue them.
Finally, we hold that NWPs 8, 12, 13, 14, and 33 are currently illegal
and must be reworked before they may be reissued.
We close our comments looking towards a brighter day when the
nationwide permit program truly authorizes no more than minimal impacts
and NWF and the Corps can work side by side to implement the protective
vision of the CWA. NWF has attached to our comments several large
appendices, containing information on endangered and threatened species
that are dependent on wetlands and on the implementation and impacts of
NWPs 26 and 29. We ask that these be entered into the record of the
nationwide rulemaking along with and as a part of these comments.
i. the corps has abused the nationwide permit system to escape
accountability for allowing wetlands destruction
The Corps' nationwide permit system must surely rank as one of the
most complex networks of partial or total exemptions under any of
America's environmental laws. The reissuance proposal advances 37
existing nationwides, 4 new proposed nationwides, and 25 conditions,
some but not all of which apply to some but not all projects authorized
under the nationwides. In addition, several of the nationwides
implicate laws and regulations applied by other federal, state, and
even local agencies. It is easy to become lost in the minutiae of the
nationwides, and even easier to turn from them as the Corps' decision
documents have done, without conducting a thorough analysis.
Nonetheless, against this complex background, the CWA provides a
clear standard for what the nationwides are supposed to be. Under the
CWA, the Corps' and EPA's jurisdiction extends over a huge area. CWA
Sec. 404(e)'s purpose in authorizing nationwide and general permits was
to allow the rapid processing of activities with virtually no wetlands
impacts. The plain language of CWA Sec. 404(e) is explicit as to this
purpose: a nationwide or other general permit may be issued for a
category of activities that ``are similar in nature, will cause only
minimal adverse environmental effects when performed separately, and
will have only a minimal cumulative impact on the environment.''
The Corps' nationwide permit program has corrupted the plain
meaning of CWA Sec. 404(e) and its place in the CWA as a whole in three
ways. First, the Corps' use of nationwides has eroded the
accountability of District Engineers--to other agencies, to the
statutes the Corps implements, and especially to the public. Second,
the losses of wetlands and waters authorized by the nationwides have
been significant and enduring. Finally, whether intentionally or
inadvertently, the Corps' nationwide permit system has trampled on the
right of ordinary citizens to know or influence the most basic
decisions concerning the fate of wetlands in their communities.
Defended by the Corps as a tool to reduce the Districts' workloads,
the nationwide permit system also reduces their accountability. In the
individual CWA Sec. 404 permit process, the Corps' judgments are
reviewed and commented on by the Environmental Protection Agency (EPA),
the U.S. Fish and Wildlife Service (USFWS), the National Marine
Fisheries Service (NMFS), state agencies, and members of the public.
Moreover, the Corps must adhere to its own regulations and to EPA's
404(b)(1) Guidelines--and can be sued by citizens if it does not. In
contrast, projects authorized under nationwides are seen rarely by the
agencies and never by the public, and a state agency that attempts to
hold the Corps accountable risks having the Corps' workload dropped on
its shoulders. To boot, the Corps does not formally apply either its
own public interest test nor EPA's 404(b)(1) Guidelines on a case by
case basis to projects under the nationwides. The Corps vaunts the
discretion of its District Engineers to require more formal review of
projects under the nationwide; but that discretion does not replace the
checks and balances lost when the Corps deserts the standard permit
process.
The consequence of reducing the Corps accountability? Projects with
more than minimal impacts on wetlands and waters have been approved in
droves. Although the data in the Corps regulatory database (RAMS)
underreports the use of the nationwides and their impacts, the picture
it paints is appalling. Throughout these comments we rely for historic
usage data on the RAMS data obtained by the National Wildlife
Federation and the Environment Working Group (EWG) in independent
Freedom of Information Act (FOIA) requests of the Corps (since this
data is not otherwise publicly available).\1\ According to the
incomplete data given to EWG, between January 1988 and June 1996, the
nationwide permit system authorized at least 16,000 acres of wetlands
loss. Many projects recorded in RAMS did not include impact acreages;
assigning those an average impact based on the recorded impacts for
other projects, the nationwide permit system authorized at least 80,000
acres of impacts. That yet does not account for the Districts that did
not respond to FOIA requests, or for the numerous other projects that
were reported to the Districts but never placed on RAMS. Nor does that
figure begin to include the impacts under nationwides that do not
require reporting to the Corps at all.
---------------------------------------------------------------------------
\1\ We understand that EWG is submitting as a part of its comments
on the reissuance proposal the full data it has received from the
Corps, along with EWG's website on which it is made accessible to the
public. We incorporate the RAMS data in EWG's comments into these
comments by reference.
---------------------------------------------------------------------------
All these impacts received authorization without public notice or
any opportunity for public comment This is wrong. The destruction of
wetlands and waters imposes costs on all citizens, and we should all
have a say in and knowledge of the consequences of, any decision that
has more than a negligible effect on these resources. Moreover, the CWA
ensures to the public the right to know and comment on projects with
more than minimal impacts on wetlands and waters: the statute
explicitly restricts general permits, including nationwides, to
categories of activities with minimal individual and minimal cumulative
impacts.
The present reissuance proposal coed end these faults; but it does
not the need for a major overhaul of the nationwide permit program is
the gravamen of our comments, the theme which our more specific
objections and recommendations elaborate below.
ii. the corps' reissuance proposal and decision documents fail to make
any of the showings required before the corps can legally reissue the
nationwides
Clean Water Act Sec. 404(e) gives the Corps the authority to issue
nationwide and other general permits for activities that are ``similar
in nature, will cause only minimal adverse environmental effects when
performed separately, and will have only minimal cumulative adverse
effects on the environment.'' Both EPA and the Corps have issued
regulations to implement CWA Sec. 404(e), at 40 CFR Sec. 230.7 and 33
CFR 330. Under these regulations, before the Corps can issue or reissue
the nationwides, it must demonstrate that they comply with CWA
Sec. 404(e); with the Corps' public in-
terest test; and with EPA's 404(b)(1) Guidelines. In addition, in
reissuing the nationwides, the Corps must comply with the National
Environmental Policy Act (NEPA), the Endangered Species Act (ESA), and
the Fish and Wildlife Coordination Act (FWCA). Some of these standards
are substantive; others are procedural; the current reissuance proposal
and the decision documents fail to comply with any. This section of our
comments reviews the showings the Corps must make before reissuing the
nationwides, and describes in broad terms how the Corps has failed to
make them.
A. The Corps has not complied with EPA's regulations governing the
issuance and reissuance of the nationwides
40 CFR Sec. 230.7 requires the Corps, before issuing a nationwide,
to determine that it covers a category of activities that are similar
in nature and impacts and that have minimal individual and cumulative
impacts essentially to show in writing that the nationwide complies
with CWA Sec. 404(e). 40 CFR Sec. 230.7(b) (1) and (3) explicitly
require the Corps' documentation to address the individual and
cumulative impacts of each nationwide, and to predict the number of
authorizations likely to occur under each nationwide as well. Finally,
40 CFR Sec. 230.7(b)(2) requires ``a precise description of the
activities to be permitted under the General permit, explaining why
they are sufficiently similar in nature and environmental impact to
warrant regulation under a single general permit based on Subparts C
through F of the Guidelines.''
The reissuance proposal and the decision documents meet these
requirements with brazen noncompliance. Few of the decision documents
list the full range of activities that their subject nationwides
authorize, and none include an explanation of why these can all be
considered ``like in nature and impact.'' Many of the documents include
projections of the potential use of various nationwides over the next
five years, but offer no account of how these were derived. We know
they could not have been based on the Corps' survey of the Districts,
since the Corps did not conduct this survey until after the decision
documents were written.
Finally, the decision documents make no effort to evaluate the
individual or cumulative impacts of projects authorized under the
nationwide. Instead, the documents merely repeat boilerplate assertions
that the nationwides are ``expected'' to result in no more than minimal
impacts. The frailties of the Corps' RAMS data are discussed above and
below, but it is worth noting here that without some attention and
response to the recorded cumulative impacts of the existing
nationwides, the Corps has no legal basis on which to reissue them, let
alone to issue the four new proposed nationwides.
B. The Corps has not demonstrated that the nationwides comply with the
Sec. 404(b)(1) Guidelines
In addition to the showings described above, 40 CFR Sec. 230.7
requires the nationwides to be consistent with EPA's 404(b)(1)
Guidelines. These guidelines articulate the alternatives analysis test
and mitigation sequencing, the touchstones of the individual permit
process. More relevant to the nationwides, the Guidelines also prohibit
projects that would ``cause or contribute to significant degradation of
waters of the United States'' (40 CFR Sec. 230.10(c)). Significant
degradation can take several forms, including impacts to human health;
to aquatic ecosystems and the organisms dependent on them; and to
recreational, aesthetic, and economic values (40 CFR Sec. 230.10(c)).
The Corps reissuance proposal and decision documents take
compliance with the 404(b)(1) Guidelines for granted. The documents do
not consider the potential impacts of the nationwides to human health,
aquatic ecosystems, human values in any detail. The substantial
diversity among the nationwides is reflected by little more than the
Corps' choice of which standard paragraphs to paste into each document.
Calling this an analysis does not make it one, and it does not
demonstrate compliance with 40 CFR Sec. 230.10(c).
The 404(b)(1) Guidelines also state that ``no 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'' (40 CFR Sec. 230.10(d)). In
response, the Corps has inserted verbatim into every nationwide
decision document the rote statement that ``as demonstrated by the
information contained in this document as well as the terms, conditions
and provisions of this nationwide, actions to minimize adverse affects
(Subpart H) have been thoroughly considered and incorporated into the
authorization.'' This will not suffice. Subpart H of the 404(b)(1)
Guidelines sets out a detailed list of steps that may be taken to
minimize impacts of an authorization. To comply with EPA's nationwide
regulations and the 404(b)(1) Guidelines, the Corps must demonstrate,
for each na-
tionwide, that each of the measures in Subpart H have been adopted to
the extent practicable.
C. The Corps has not demonstrated that the nationwides satisfy the
Corps' public interest test
Perhaps the most lenient of any of the standards the nationwides
must meet, the public interest test merely requires the Corps to
determine, on the record, that the proposed authorization does not run
against the public interest--or if the project might affect a special
aquatic site (such as a wetland), that the project runs in the public
interest. Nonetheless, the decision documents chokes this showing, too.
Almost without exception, the documents list quicker permit processing
times as a benefit to the public, but do not consider the impacts felt
by the public as wetlands are lost under the nationwides, or the cost
to the public of losing the public notice and comment opportunities.
The decision documents assert but do not document the public benefits
of each nationwide, and ignore the public costs altogether.
D. The Corps has not complied with the National Environmental Policy
Act
The Corps has made only rudimentary efforts to comply with the
National Environmental Policy Act (NEPA), which requires as a
prerequisite of any ``major Federal action significantly affecting the
quality of the human environment,'' the preparation of a detailed
environmental impact statement (EIS) (NEPA Sec. 102(C)). Given that the
reissuance proposal would likely result in tens or even hundreds of
thousands of acres of impacts to waters of the United States, a full
EIS would seem in order. Instead, the Corps has provided a pastiche
billed as a set of Environmental Assessments, one for each existing or
proposed nationwide, concluding each with a finding of no significant
impacts (FONSI). Since all the EAs result in FONSIs, the Corps has
determined not to produce a full EIS.
The Corps' actions have violated NEPA on several counts. First, the
Corps has improperly segmented the nationwide permit program into 41
different environmental assessments. These nationwides are being
reissued together and are often (illegally) stacked together, with the
encouragement of Corps regulations (33 CFR Sec. 330.6(c), (d)). The
reissuance proposal is one action and should be evaluated as such.
Moreover, even taken individually, the EAs are grossly inadequate.
Composed of nearly interchangeable stock paragraphs, few of the EAs
make any effort to identify the unique impacts of the activities they
consider. None of the EAs discusses in any depth the historical impacts
of the nationwides, or uses these to estimate future impacts, thus
violating Council on Environmental Quality (CEO) regulations governing
the implementation of NEPA (15 CFR Sec. 1508.7, Sec. 1508.25(a), and
Sec. 1508.25(c)). Finally, the EAs make no effort to imagine
alternatives--either in the form of more tightly drawn nationwides, or
in the no-action form of the individual permit program.
Were the Corps inclined to prepare a meaningful environmental
assessment of the nationwides, it would, admittedly, face an uphill
battle. The Corps' records on the impacts of the nationwide permit
system are so fragmented that they will serve as a poor foundation even
for a conscientious analysis. We note above and below the flaws in the
data NWF and the EWG have independently obtained through FOIA requests
of the Corps.
One set of data seems to deserve particular attention, as it will
otherwise likely become a cornerstone of the Corps' revised reissuance
documents: the survey of the Divisions and Districts. The EAs cite this
mysterious survey again and again, extracting from its estimates of the
number of future authorizations under the nationwides (though not of
the impacts of these authorizations). We are puzzled by the references
to the survey, which we recall the Corps did not send out until after
the reissuance proposal and decision documents were placed on notice
for public comment. Indeed, it is our understanding that the Districts
were not required to have their responses in to Corps headquarters
until July 26, over a month after the reissuance proposal appeared in
the Federal Register.
NWF also requested copies of the survey, and called a number of
Districts directly to obtain copies of the forms they were returning to
headquarters. We are deeply skeptical that these responses can be
relied upon to justify any agency decision. The responses diverged
wildly; in some Districts, ``estimated'' authorizations consistently
outnumbered ``recorded'' authorizations under each nationwide by a
factor of three or more, suggesting that these Districts do not believe
their official RAMS statistics (though what basis they had for
estimating permit numbers is also unclear). In others, ``recorded''
authorizations far exceeded estimated actual authorizations; what this
means is anyone's guess. A few Districts, including the Louisville
District, re-
sponded with forms that listed only recorded authorizations, with no
estimated authorizations, no recorded or estimated impacts, and no
mitigation.
What should the Corps do about its environmental assessments? It
must rework them essentially from scratch, with attention to the full
range of impacts that could be authorized under each nationwide. It
must find better historical data on the use of the existing
nationwides, and must prepare thorough analyses evaluating the
experiences of the existing nationwides. To prevent this from happening
again, the Corps must require preconstruction notifications (PCNs) for
all nationwides, and must faithfully store up all the PCN data to serve
as the basis for the next evaluation in five years. More immediately,
given the absence of reliable records to date, the Corps will only be
able to defend its final reissuance legally if it scrupulously declines
to reissue or issue any nationwide with more than minimal impacts or
that covers dissimilar activities.
E. The Corps has not complied with the Endangered Species Act
Section 7(a)(2) of the Endangered Species Act (ESA) states that
``each agency shall, in consultation with, and with the assistance of
the Secretary, insure that any action authorized, funded, or carried
out by such agency * * * is not likely to jeopardize the continued
existence of any endangered species or threatened species or result in
the destruction or adverse modification of habitat of such species. * *
*'' Thus, where a Corps authorization might affect an endangered
species or its habitat, the Corps must consult with the USFWS and the
NMFS, and must seek alternative methods of carrying out the action that
will not jeopardize protected species.
The nationwide permit system as a whole directly threatens
protected species that are dependent on wetlands. An NWF report found
in 1992 that one-third of endangered plants, and two-thirds of
endangered animals, depend on wetlands for their survival (Endangered
Species, Endangered Wetlands: Life on the Edge, National Wildlife
Federation, 1992.) Exhibit 1 includes a copy of this report, as well as
several more recent USFWS Federal Register notices proposing or
finalizing the listing of endangered species that are dependent on
wetlands and could be harmed by projects authorized under the
nationwides.
Despite the importance of wetlands to the fate of endangered
species, neither the reissuance proposal nor the decision documents
discuss the potential impacts of the nationwides on endangered species.
The only concession the Corps makes to its duty to consult and to
protect endangered species is general condition 11, that no
authorization under a nationwide may affect a protected species. This
condition is effectively nullified by the fact that several nationwides
require no reporting to the Corps; that the Corps does not report
others to USFWS; and that some Corps Districts have refused to consult
with NMFS and USFWS over the potential effects of specific projects
authorized under the nationwides.
Merely pointing to condition 11 does not satisfy the ESA. Before
the Corps can legally reissue the nationwides, it must conduct, with
the help of USFWS and NMFS, a thorough assessment of the cumulative
impacts of the nationwide permit system on all the endangered and
threatened species that depend on wetlands. This analysis does not
substitute for project by project compliance with the ESA; below, we
describe how the Corps must change the way it authorizes projects in
order to comply with the ESA--by requiring a PCN for every
authorization and by offering to consult with FWS whenever a project
affects a protected species. Nonetheless, a broad analysis of the
potential endangered species impacts of the nationwides is necessary on
its own terms and lays the groundwork for project by project
compliance.
F. The Corps has not complied with the Fish and Wildlife Coordination
Act
The Fish and Wildlife Coordination Act (FWCA) directs the Corps to
consult with the USFWS with a view to the conservation and improvement
of wildlife resources whenever a body of water is ``modified for any
purpose whatever'' under a Corps permit or license (16 U.S.C. 662(a)).
Corps regulations acknowledge this duty, and state that the Corps will
give ``full consideration to the views of [the FWS] on fish and
wildlife matters in deciding on the issuance, denial, or conditioning
of individual or general permits'' (33 CFR 320.4(c)). However, neither
the reissuance proposal nor the decision documents for the nationwides
give any indication that the Corps has consulted with the USFWS for
FWCA on the nationwide reissuance. The same consultation may satisfy
the ESA and the FWCA; but it must occur before the nationwides can be
legally reissued.
G. The shortcomings of the Corps' decision documents have tainted this
public comment period
The failures outlined above jeopardize the entire reissuance
package, including the nationwides to which no one has traditionally
objected. Moreover, whatever the Corps does between now and the final
issuance of the reissuance package, much damage has already been done.
When the documents the public must comment on are as superficial as
these, major impacts and issues will almost inevitably go unrecognized
and unaddressed. EPA's regulations do note that ``some of the
information necessary for this evaluation can be obtained from
potential permittees and others through the proposal of general permits
for public review'' (40 CFR Sec. 230.7(b)). However, given that Corps
could have taken a stab at meaningful description of the nationwides
and analysis of their impacts in its proposed and draft documents, it
surely had an obligation to do better than it has. Whatever the
ultimate product of the reissuance process, placing only a mock
analysis on review, as the Corps has done, has defeated the letter and
spirit of the public notice and comment provisions of the CWA, NEPA,
and the ESA.
iii. the corps must correct implementation flaws in the nationwide
permit program before it can legally reissue the nationwides.
The Corps must reform both the flaws of individual nationwides
(addressed in the next section) and the implementation of the
nationwide permit system as a whole. Lax monitoring and enforcement,
and the practice of allowing projects with significant impacts to be
processed under multiple nationwides (``stacking''), have allowed
substantial and unnecessary wetlands losses. Poor recordkeeping and a
lack of reporting requirements for many nationwides have made it
impossible to calculate with any accuracy the losses authorized by the
nationwide permit system, or to evaluate their impacts as required by
NEPA and by Corps and EPA regulations. In this section, we consider the
most significant implementation failures of the current nationwide
permit system and the reissuance proposal, and recommend solutions to
these problems.
A. The Corps should require a preconstruction notification for every
nationwide
One bar to measuring the full impact of the nationwide permit
system is the set of authorizations that are never reported even to the
Corps. The nationwides that authorize potentially significant impacts
without notice to the Corps include NWP 8 (for offshore oil and gas
operations); NWP 26 (in headwaters and isolated wetlands) for impacts
under one acre; and NWP 40 (for construction of farm buildings).
Reporting cannot render legal a nationwide that authorizes more than
minimal impacts. However, only if a pre-construction notice (PCN) is
required for most or all nationwides can the Corps show that these
nationwides have no more than minimal impacts.
Compliance with the Endangered Species Act also hinges on the PCN
reporting requirement. When an applicant does not notify the Corps,
neither the Corps nor the other federal resource agencies have any
practical ability to enforce the universal condition of the nationwides
that projects are not to affect threatened or endangered species or
their critical habitat. This makes a mockery of ESA compliance, and is
a problem that attaches even to those nationwides that would, in almost
all other respects, be considered truly minimal in impact. For
instance, concerns have been raised about the impacts on endangered and
other whales of scientific measuring devices that send out subsonic
sound waves through the ocean to measure global temperature variations.
Currently, NWP 5, would appear to authorize these without requiring
reporting, thus violating the exclusion for projects with potential
endangered species impacts. Only by requiring a virtually universal PCN
for projects authorized under the nationwides can the Corps comply with
the ESA and the FWCA.
We note that PCNs need not be equally complicated for all
nationwides. However, all PCNs should include detailed information
about where a proposed action is to take place (not just the address of
the applicants or the county and waterbody of the project), for without
this the Corps cannot identify endangered species implications, assess
cumulative impacts on specific waterbodies, or conduct field
verification of the applications it receives. Allowing applicants to
submit their PCNs to the Corps electronically could speed the process
for applicants and regulators.
B. The Corps must notify the other federal resource agencies of all
PCNs
For universal PCNs actually to screen out all projects that have
unexpected impacts or that are subject to exclusions (such as the
endangered species exclusion), the resource agencies must see all the
PCNs. Currently, the resource agencies see only a limited set of them,
and the reissuance proposal plans to shrink that set. Specifically, the
proposal plans to continue notification on 14, 21, 26, 33, 37, and 38;
but it proposes to discontinue notification for NWPs 5, 7, 13, 17, 18,
and 34. This is a mistake: NWPs 7, 13, 17, 18, and 34 are all either
illegal or have significant impacts, or both; notification is entirely
appropriate in these cases. Further, there are several NWPs on which
notification does not currently occur but clearly should, including
NWPs 8, 12, 15, 19, 23, 32, and 40. The easiest solution is for the
Corps to send all the PCNs it receives on to the resource agencies;
this may be accomplished with particular ease if the PCNs are online in
electronic versions.
Online notification would also help resolve the question of when to
mark the beginning point of the resource agencies' 30-day review
period. For the time being, we urge the Corps to start the clock not
when the applicant's materials arrive at the Corps, but when the Corps
sends the materials to tile resource agencies. If the proposal
undergoes significant changes during the review process, to 30 day
period should begin to run from scratch again.
C. The Corps must distinguish between its discretionary authority to
require individual permit review at any time and its duty to
require individual permit review for all projects where the PCN
indicates more than minimal impacts
As the Corps processes applications for nationwide permits, two
administrative safeguards come into play: the automatic kickout to
individual review of projects whose PCNs show more than minimal
impacts; and the District Engineers' (DE) discretion to require
individual permit review for any project. Although the discretion seems
more flexible--it can apply to any project, not just to those with more
than minimal impacts--it is in fact so encumbered by Corps regulations
that it is virtually never used. It is essential that the Corps respect
the distinctions between these two internal safeguards.
Throughout the Corps' decision documents on the proposed
nationwides, the Corps calls attention to the ability of the District
Engineers to yank a nationwide authorization and require a project to
obtain an individual authorization at any time. Although this DE's
discretion cannot substitute for the checks and balances of the
individual permit process for activities with more than minimal
impacts, the discretion to require individual review has a place in the
program. However, Corps regulations greatly curtail the District
Engineer's discretion. Before the District Engineer can boot a project
from nationwide into individual review, the District Engineer must
consider a long list of factors, including whether requiring pulling a
nationwide authorization would ``adversely affect plans, investments,
and actions the permittee has taken or made in reliance on the permit''
(33 CFR Sec. 330.5(d)). The DE must also consult with the applicants
twice. No doubt in part because of these procedures, DE's discretion is
used by the Corps in less than 1% of nationwide permit authorizations.
PCN kickout is a very different tool. Like DE's discretion, a PCN
requirement cannot cure an illegal nationwide. However, PCN kickout
involves no discretion; under CWA Sec. 404(e), no nationwide can
legally authorize a project with more than minimal impacts. Hence, when
the Corps receives a PCN suggesting greater than minimal impacts, it
must shift that project over to individual review. It remains unclear
how seriously the Corps has taken this statutory duty in practice, but
as a matter of the law, the distinction between DE discretion and PCN
kickout (or a kickout based on any of other nationwide exclusions and
conditions) is clear. The Corps' final reissuance document should
confirm this distinction. In addition, the Corps should reiterate the
Districts' duty under the CWA to screen every PCN and to require
individual review for all projects with more than minimal impacts.
D. The Corps should verify applications and PCNs for the nationwides
As far as we have been able to discern, Corps regulators rarely
independently verify information submitted to the agency on nationwide
permit applications. As a result, the nationwides are vulnerable to
significant abuse, with applicants underreporting impacts. Resources
are a concern. Though the Corps defends the nationwide permit system as
conserving agency resources, the easy availability of nationwide
authorizations encourages new applicants, generating a greater need for
verification, monitoring, and enforcement. Issuing nationwides without
verifying them invites fraud. At a minimum, the Corps must commit to a
system of spot checks frequent enough, and backed by sufficiently
severe penalties for non-compliance, that applicants are strongly
encouraged to comply.
E. The Corps must improve monitoring of compliance with the nationwide
conditions
Beyond verifying the data submitted by applicants, the Corps must
also commit to monitor applicant compliance with the terms and
conditions of the nationwides. To date, however, even where Corps
Districts have managed to record authorizations and anticipated impacts
of the RAMS database, there are few or no records indicating whether
the Corps has monitored those projects. Without records in RAMS, it is
hard to see how Corps regulators could build any sense of an
applicant's track record or could collect the information needed to
support an enforcement action against a violator.
F. The Corps must enforce against violations of the nationwides
Without enforcement, the terms or conditions of the nationwides
will be ignored. The Corps' reissuance proposal and decision documents
do not discuss the Corps' enforcement record for violations of the
nationwides. Nor does the RAMS database provide usable records of Corps
enforcement actions against projects violating the nationwides. The
Corps' statistical summary for enforcement under the Sec. 404 program
is no help here either, since it breaks up enforcement actions by
method of resolution rather than by type of permit violated. The Corps
needs to commit both to enforce the terms and conditions of the
nationwides, and to keep records that allow this information to be used
to evaluate the oversight the Corps exercises over the nationwide
permit program.
G. The Corps must make all of its PCN's, verification, monitoring, and
enforcement records available to the public over the Internet
All of the information collected by the Corps--the PCNs, the
records of verification, monitoring, and enforcement actions--is a
matter of public record. Further, the public (and the other resource
agencies and the states) need access to these to evaluate the impacts
of the nationwides. The Corps can anticipate that if the nationwides
are reissued in anything approximating their current form, members of
the public will again be submitting FOIA requests to the Corps asking
for these materials. The Corps should save resources, and begin
collecting truly reliable data, by beginning this year to record all
this information in the RAMS database and by making the RAMS database
available on the World Wide Web.
H. The Corps should continue to publish all the nationwides in the Code
of Federal Regulations
The Corps must renounce its plan, buried in the preamble to the
reissuance proposal, to take the nationwides completely out of the Code
of Federal Regulations (CFR), the only place they can currently all be
found printed together. The proposal states that from this reissuance
forward, the Corps will publish the nationwides one by one in the
Federal Register, leaving it up to interested citizens to scan the
Register each day for new nationwides to keep a running collection.
Most county and university law libraries carry the CFR, but not back
issues of the Federal Register. The Corps has been repeatedly
criticized by the business community and by conservationists for not
publishing the rest of its wetlands regulations in one place; this will
just exacerbate ``the problem.''
I. The Corps should prohibit the stacking of nationwide permits
The Corps consistently abuses nationwides to allow projects with
significant impacts to proceed by combining several nationwides
(``stacking'' them) for a single project. For instance, a housing
development may use one nationwide for houses; another each time a road
is crossed; and a third to put in water, sewer, and power lines. The
impacts add up quickly, and if the entire project can be fit under
various nationwides, it can avoid public notice or full environmental
review. NWPs that are often abused by stacking include NWP 12, NWP 14,
NWP 18, NWP 19, NWP 26, and NWP 33. No stacking ought to be the rule
for all the NWPs.
J. The Corps cannot allow mitigation to ``buy down'' the impacts of
illegal nationwides
Mitigation should in theory have no place in a system of legal,
truly minimal impact nationwides. Since Sec. 404(e) authorizes
nationwides only for activities with virtually no impacts, the
nationwides should not create any demand for mitigation, and we look
forward to the day they do not. In the meantime, if the Corps insists
on issuing nationwides with more than minimal impacts, it must improve
the performance and monitoring of mitigation required under them. The
track record for mitigation under the Sec. 404 individual permit
program is bleak, and no available data suggests mitigation under the
nationwides has fared better. The reissuance proposal and the decision
documents omit any discussion of the success or failure of mitigation
required under nationwide permit in the last five years, and are silent
on the Corps' plans for monitoring or evaluating future mitigation.
Most Corps Districts currently authorize projects that have more
than minimal impacts on the grounds that the applicants have proposed
mitigation that makes the net impacts of the project no more than
minimal. The Corps' regulations allow applicants to use mitigation to
``buy down'' project impacts to make their net effect minimal; however,
even Corps regulations are explicit that the Districts should not be
allowing applicants to buy down the impacts of projects that do not
meet the terms and conditions of any nationwides. See Preamble to the
Final 1991 Rule to Amend the Nationwide Permit Program Regulations and
Issue, Reissue, and Modify Nationwide Permits, 56 Fed. Reg. at 59125.
NWF reiterates our opposition to the practice of buying down
impacts in any form. Allowing applicants to offer mitigation and in
turn receive authorization under a nationwide means that these projects
are never subjected to an alternatives test, to public notice and
comment, or even to review by the other federal resource agencies if
the mitigation proposal is received after the PCN has already been
distributed to these agencies. This reduces Corps accountability; under
the CWA and its own regulations, the Corps should be conducting
individual permit review on every project whose gross impacts exceed
the threshold of a nationwide.
The reissuance proposal resolves to limit the nationwide condition
requiring mitigation to projects that involve discharges in special
aquatic sites. This is imprudent; first, there are waters of the United
States that serve important ecological, economic, or recreational
functions, but that are not special aquatic sites. Second, even those
projects that do not involve discharges into special aquatic sites,
such as those under NWP 13, which explicitly excluded projects in
wetlands and other such sites, may nonetheless have significant
indirect impacts that require mitigation. The Corps should not limit
the mitigation condition as it has proposed.
K. The Corps must treat state denial of Sec. 401 water quality
certification as invalidating the nationwide within that state
For years, the Corps has violated CWA Sec. 401, which empowers
states to review every federal wetlands permit--whether individual or
nationwide--to decide whether that permit would allow impacts that
violate state water quality standards. In the case of an individual
permit, if the state denies Sec. 401 certification, that effectively
vetoes issuance of the Sec. 404 permit. Similarly, when a state denies
certification to a federal nationwide, that nationwide cannot legally
apply in that state.
However, the Corps continues to authorize Sec. 404 authorizations
under nationwides that have been denied certification, telling
applicants that they have received their federal authorization under
the nationwide, but must obtain Sec. 401 certification from the state.
This places state Sec. 401 programs in a quandary, since they
technically have no basis on which to grant certification: the Corps
has not approved an individual Sec. 404 permit; and the state has
already denied certification for the nationwide. Worse, if a state
fails to deny individual certification within 60 days, the Corps treats
the state as having waived its objections to the project, even though
the state has clearly spelled out its opposition to all authorizations
under the nationwide by refusing to certify it.
The Corps' practice has three harmful results. First, it usurps the
ability of states, guaranteed to them by CWA Sec. 401, to protect water
quality. Second, it misleads applicants, who often fail to read the
fine print on Corps nationwide authorizations that requires them to get
individual certification from the state. Finally, the Corps' practice
drops the Corps' workload under the offending nationwide squarely onto
the shoulders of the state, without providing any funds to help the
state meet the new responsibility. The Corps' treatment of state water
quality certification denials violates CWA Sec. 401, confuses
applicants, and makes the state do the Corps' job. This practice must
end.
L. The Corps must respect state conditions placed on nationwide permits
and must not treat those as permit denials
The Corps has also wronged states by rejecting state conditions on
the nationwides. CWA Sec. 401(d) grants states the right to include in
any certification conditions that will ensure a project meets state
effluent guidelines and other state standards. These conditions then
attach to the federal authorization. However, the Corps has, without
statutory authority, arrogated the power to unilaterally reject these
conditions. That rejection converts state conditions to a state denial,
dumping the Corps' workload once more upon the state. As a result, many
states have become wary about placing all the needed conditions on the
nationwides. This practice violates Sec. 401, hamstrings the state
programs, and results in projects with more damaging impacts.
M. The Corps should treat state determinations that a nationwide is
inconsistent with the State's coastal zone management plan as
an invalidation of the nationwide within that state
States with coastal zone management plans, like states with
Sec. 401 water quality certification programs, can reject Corps
nationwides. However, the Corps also mistreats these programs, treating
a state determination that a nationwide is inconsistent with a coastal
plan not as an invalidation of the nationwide but as a state promise to
review each project authorized under the nationwide individually.
Worse, the state must continue to make determinations of inconsistency
every time the Corps sends it a new draft of the nationwide, or the
Corps deems the state to have waived its objections.
N. The Corps must consult with USFWS and NMFS over authorizations that
might affect threatened or endangered species
In addition to the programmatic consultation required before the
Corps can reissue the nationwide, Corps Districts have a duty under the
ESA to consult with USFWS and NMFS any time an authorization under a
nationwide might affect a protected species. Our discussions with USFWS
and NMFS personnel suggest that this rarely happens. For example, in
Montana, the Corps has repeatedly granted nationwide authorization
projects within the nesting territory of threatened bald eagles, even
through a database accessible to the Corps lists each of the over 200
known bald eagle nests in the state. In Utah, we understand that
without consulting with USFWS, the Corps has granted authorization
wider NWP 3 to a project that threatens the endangered June sucker.
Consultation often does not occur because the Corps does not know
or has not shared the other federal resource agencies information about
projects authorized under the nationwides. A universal PCN requirement
would place before the Corps the information the ESA requires it to
know. A deeper problem lies in the reluctance of Corps regulators to
consult with the resource agencies once a project has been identified
as posing a potential threat We urge the Corps to instruct the District
Engineers that all PCN data on the location of projects are to be
shared with the resource agencies, and that the Districts are to
request information from the resource agencies on the location of and
potential impacts to protected species. The Corps should also instruct
the District Engineers to consult with the federal resource agencies on
projects that implicate protected species, and, as the nationwide
conditions require, to process each of these projects under an
individual permit rather than a nationwide.
O. The Corps must consult with the USFWS over projects that affect the
Nation's water and wetlands resources
Similar to its duty to consult under the ESA, the Corps also bears
a duty to consult under the Fish and Wildlife Coordination Act (FWCA).
The plain language of the FWCA specifies that coordination must take
place whenever a body of water is modified. Given the breadth of
projects authorized by many of the nationwides, it seems clear that as
in the case of the ESA, consultation under the FWCA will only be
meaningful if it takes place on a project by project basis. Again, this
requires that the Corps receive a PCN for every project that the Corps
share these with the USFWS, and that the Corps instruct its Districts
to consult with the USFWS over projects as the FWCA requires.
iii. comments on individual nationwides
In this section we comment on those nationwides most in need of
repair or elimination. Several of the current and proposed nationwides
suffer from the same incurable legal defects. NWPs 23, 32, B, and D all
share the flaw of authorizing procedures for future exemptions rather
than categories of activities. No way exists to meaningfully assess the
potential use or environmental impacts of such open-ended nationwides,
let alone to establish their compliance with 404(e). NWPs 15, 17, and
21 are illegal because they delegate the Corps' job of protecting
wetlands and waters to other agencies respectively, the Coast Guard,
the Federal Energy Regulatory Commission, and federal and state Offices
of Surface Mining. But while these agencies have responsibilities that
overlap the Corps', they do not duplicate, and have no legal authority
to displace, Corps regulation of waters and wetlands.
NWP 3 Maintenance
NWP 3 allows the repair, rehabilitation, or replacement of damaged
or destroyed structures or fills. The nationwide requires a PCN only
when issued to authorize a project where the previous structure or fill
has been destroyed for more than two years. The Corps' RAMS database
records NWP 3 as having been used over 14,000 times between 1988 and
June 1996, but includes acreage impacts for only about 1,100 of these
projects. Those Districts that fully responded to the Corps' survey of
nationwide usage during 1995 (hereinafter the 1995 District survey)
estimated that RAMS underrecorded NWP 3 authorizations by a factor of
between 2 and 20. Further, NWP 3 does not require a PCN to the Corps
unless the project is the repair damage more than two years old, so
there are many NWP 3 authorizations that Corps never sees at all.
While NWP 3 is probably not illegal as written, it encourages
reconstruction of structures in flood plains that are damaging for
private citizens and inefficient for society as a whole. A few modest
changes to NWP 3 would make it much more beneficial and would bring it
into line with the Administration's flood damage prevention policies.
Compliance with CWA Sec. 404(e). NWP 3 authorizes the replacement
of existing or recently destroyed structures or fills. Where structures
and fills are indeed limited to the same purposes and size as those
they replace, the impacts may in fact be minimal. However, NWP 3 is
somewhat ambiguous about just how similar a new project must be to
previous projects, saying only that the ``repair, rehabilitation, or
replacement does not result in a substantial change in the filled area
or an increase in adverse impacts. * * *'' When reissuing NWP 3, the
Corps should omit the ``substantial change'' standard and say instead:
``* * * in any increase in the filled area or in adverse impacts.''
Other comments. NWP 3 is often used to repair damage after natural
disasters specifically, we suspect floods. It thus seems odd that the
Corps' decision document specifically excludes ``flood hazards,''
``flood plain values,'' ``current patterns/water circulation,'' and
``normal water level fluctuations'' from the list of wetlands functions
and characteristics affected by NWP 3 authorization. More than most
other nationwides, NWP 3 directly affects flood plain values.
More importantly, NWP 3 encourages rebuilding in many places where
rebuilding should be discouraged. Where a property has been flooded out
repeatedly, it makes good economic sense to look for alternatives
before rebuilding, even where the direct impacts of reconstruction are
minimal. The Corps RAMS database does not reveal how many of the sites
of NWP 3 projects are repetitive loss properties insured by the Federal
Emergency Management Agency (FEMA), or even how many of those sites
have had other projects under NWP 3 at least once before. However, the
Corps might consider conditioning the nationwide so that a property may
not invoke NWP 3 more than once every ten years. Of course, that does
not mean that a house in a floodplain that is repeatedly flooded could
not be rebuilt; it means only that the applicants would be asked to
consider the practicable alternatives before imposing on society the
costs of future flooding.
Recommendation: When the Corps reissues NWP 3 it should clarify
that the nationwide does not authorize structures or fills that are
larger than those they replace or repair. Further, thee Corps should
condition NWP 3 to prevent its use by repetitive loss properties in the
floodplain.
NWP 7 Outfall Structures
NWP 7 allows for the construction of outfall structures and
associated intake structures where the effluent from the outfall
structure is in compliance with National Pollutant Discharge
Elimination System (NPDES) regulations.
NWP 7 allows for significant impacts to wetlands and waters as
written, and should not be reissued in its current form.
Compliance with Section 404(e). NWP 7 violates CWA section 404(e)'s
requirement that the activities it authorizes be ``similar in nature.''
Placing no limits on the length or width of outfall structures, NWP 7
allows a wide variety of projects of all sizes. For example, an outfall
structure can be a small pipe that discharges its contents half a mile
from shore, as does a current outfall structure in the Boston Harbor;
or a medium sized twenty-six foot diameter tunnel that travels over ten
miles of wetlands offshore, as in the new proposed outfall tunnel for
the Boston Harbor; or even a large pipe like White's Point sewage
outfall, the largest in the U.S., which discharges an average of 330
million gallons per day into Santa Monica Bay. Nor does nationwide 7
distinguish between the diverse types of outfall structures sewage
outfalls, stormwater outfalls, nuclear power plant cooling water
outfalls, lake outfalls, ocean outfalls, and river outfalls even though
these have substantially different characteristics and impacts. Without
restrictions on the size, length and type of outfall structures, NWP 7
fails to meet section 404(e)'s, ``similar in nature'' requirement.
NWP 7 also violates CWA section 404(e)'s requirement of minimal
individual and cumulative impact. There are no restrictions on the
amount of wetlands that may be destroyed under NWP 7; the Corps cannot
demonstrate that it will cause only ``minimal adverse environmental
effects.''
Similarly, NWP 7 also breaches the requirement that projects have
only ``minimal cumulative adverse effects'' on the environment. With no
impact limitations on individual activities, cumulative effects will
not be minimal. The Corps believes (on what basis is unclear), that NWP
7 will be used approximately 1,600 times per year. 1,600 projects with
no size or impact limitations will have much more than a minimal
cumulative effect. In addition, the Corps does not factor in the
possibility of fractures and leaks during the construction and
operation of the outfalls; these would also contribute to cumulative
impacts.
Compliance with NEPA and the 404(b)(1) Guidelines. The NWF 7
decision document does not consider the full impacts of the outfall
structures it authorizes. By issuing NWP 7, the Corps is essentially
permitting both the outfall structure and the effluents it will
ultimately discharge. However, the decision document fails to consider
what outfall structures authorized under NWP 7 will carry. Outfall
structures are designed to funnel treated waste, runoff and stormwater
through a diffuser into a moving body of water. It is necessary to know
what substances are being transported through these structures since
there is always a possibility of breaks or cracks in the pipe itself.
If the structure fractures before the contents reach the diffuser, they
will seep into the wetland around the outfall structure and may leach
into groundwater. The proper time to evaluate these possibilities is
before NWF 7 is issued. By failing to address these concerns, the
Corps' decision document falls short of meeting the standards of NEPA
and the 404(b)(1) Guidelines.
Only once does the decision document address the impact of those
outfall structures built across coral reefs, mudflats and seagrass beds
which are designated as special aquatic sites in the 404(b)(1)
Guidelines. Again, the decision document fails to offer enough
information to allow for a knowledgeable assessment of the full
environmental impact of NWP 7, or to demonstrate that NWP 7 will comply
with the 404(b)(1) Guidelines.
It is no cure for the shortcomings of NWP 7 that outfall structures
must often obtain NPDES permits; NPDES permits do not require
compliance with any of the factors mentioned above, including the
404(b)(1) Guidelines. In addition, a NEPA analysis is only required for
new sources, or where construction grants are involved. NWP 7 would
thus allow many NPDES-permitted outfall structures, including those
with significant impact potential, to slip through without the level of
impact assessment associated with the existing section 404 permit
process.
Finally, the decision document advocates the stacking of the NWP 7
with other NWPs and regional permits. By encouraging the ``multiple use
of NWPs,'' the Corps is supporting activities with more than minimal
impacts.
Recommendation: The Corps should not reissue NWP 7 in its current
form.
NWP 8 Oil and Gas Structures
NWP 8 authorizes structures for the exploration, production, and
transportation of oil, gas, and minerals on the Outer Continental Shelf
(OCS) within areas that are leased by the Department of the Interior,
Minerals Management Service. The Corps' RAMS database reports only one
use of this nationwide between 1988 and 1996; however, NWP 8 does not
require applicants to provide a PCN to the Corps. The lack of recorded
uses suggests the Corps has made no effort to track or evaluate the
impacts of projects authorized under NWP 8.
Compliance with CWA Sec. 404(e). NWP 8 fails to comply with CWA
Section 404(e)'s requirement of minimal individual impacts. There are
no restrictions on the acreages of jurisdictional waters that may be
affected under NWP 8. In the absence of any impact ceiling, the Corps
cannot reasonably conclude that NWP 8 projects will cause only
``minimal adverse environmental effects.'' Because the Corps cannot
assure minimal individual impact NWP 8 also violates section 404(e)'s
``minimal cumulative impact standard.''
In addition, because NWP 8 authorizes exploration, production and
transportation of oil, gas and other minerals, it does not meet CWA
section 404(e)'s ``activities similar in nature'' requirement.
Exploration, production and transportation cover a broad spectrum of
activities that differ greatly in their impacts. Moreover, with no size
or length limitations mentioned in the permit a wide variety of
projects of all shapes and sizes could be authorized. Without such
restrictions and a narrower definition of the authorized projects, NWP
8 fails to comply with the ``similar in nature'' requirement.
Compliance with NEPA and the 404(b)(1) Guidelines. The decision
document for NWP 8 does not consider the full impacts of the oil and
gas structures that it authorizes. The environmental assessment of NWP
8 is not complete without a review of the possible impacts of leaks,
spills or other ecological disasters. Moreover, without such a
reassessment, NWP 8 does not comply with the 404(b)(1) Guidelines.
Although the information would seem directly relevant to the
question of the likely impacts of NWP 8, the decision document omits
any discussion of the acreage of the Outer Continental Shelf that has
been leased by the Department of the Interior, Minerals Management
Service and remains available for development The Corps' mysterious
survey of Division and District offices leads it to believe that NWP 8
will be used to authorize only 114 activities per year. However,
according to Minerals Management Service data, there are approximately
160 million acres of OCS in the Gulf of Mexico region. As of June 1996,
25.1 million of those 160 million acres had been leased. The decision
document offers no insight into how many of these may be developed, and
with what impact.
Recommendation: In order to comply with CWA section 404(e), NWP 8
needs to be overhauled and rewritten. NWP 8 must be given specific size
and length require-
ments. It must not authorize large facilities with the potential to
significantly pollute the Nation's coastal waters. In addition, a PCN
must be required for every project issued under NWP 8. Finally, the
Corps must prohibit the stacking of NWP 8 with other nationwide and
regional general permits. If these criteria cannot be met, NWP 8 should
not be reissued by the Corps.
NWP 12 Utility Line Backfill and Bedding
NWP 12 allows the clearing and excavation of wetlands for the
placement of utility lines and pipes. The Corps' RAMS. database records
NWP 12 as having been used over 17,000 times between 1988 and 1996. The
estimates of NWP 12 use in the 1995 District survey range wildly, with
the Districts generally estimating that twice as many projects were
authorized under NWP 12 as indicated in the RAMS database (and 1995 was
a year with better-than-average recordkeeping in RAMS). In addition,
NWP 12 does not require a PCN unless the applicant intends to keep
sidecast materials in waters of the United States for more than three
months, and Corps' figures provide no estimate of the number of
projects that are never reported.
NWP 12 currently allows (and has resulted in) far more than minimal
wetlands impacts. The Corps should not reissue NWP 12 without
tightening it up considerably.
Compliance with Sec. 404(e). NWP 12 violates CWA Sec. 404(e)'s
requirement of minimal individual and cumulative impacts both as
written and as implemented. NWP 12 authorizes ``the minimum impacts
necessary'' not necessarily minimal impacts. Moreover, it lacks any
upper threshold limit on the acreage of wetlands that may be destroyed.
Further, although the nationwide requires contours to be returned to
preexisting levels, it does not require revegetation. Utilities and
pipeline owners usually keep utility lines clear of vegetation, so the
effects of projects authorized under NWP 12 on wetlands ecosystems are
often permanent and substantial.
The cumulative impacts of NWP 12 are similarly more than minimal.
The Corps offers no explanation of how it arrived at its estimate that
NWP 12 will be used 60,500 times over the next five years. However, if
each use directly affects an average of even .1 acres of waters or
wetlands, the total loss over the life of the nationwide would be 6,050
acres. That is surely not minimal, and does not even consider the
indirect impacts. Further, no Corps District figures appear to include
the inevitable impacts of pipeline leaks or spills, although these too
contribute to cumulative impacts.
NWP 12 also violates CWA Sec. 404(e)'s requirement that nationwides
authorize only ``categories of activities similar in nature.'' With no
limit on the size or length of pipes or utility lines that may be
placed in a wetland, NWP 12 covers a huge variety of activities and
project purposes. NWP 12 appears to authorize underground public sewer
lines, giant power line towers, ground-level private oil or hazardous
material pipelines, and perhaps even slurry pipelines for peat, coal,
or other milling operations.
Compliance with NEPA and the 404(b)(1) Guidelines. The Corps' NEPA
analysis of the impacts of NWP 12 is inadequate and conclusory. For
instance, the document explains that ``because of the temporary nature
of the discharge the adverse affects of removing or covering the
riparian vegetation are expected to be minimal.'' However, the
discharge is not temporary; NWP 12 may require that a site be returned
to its original contour, but the material on the finished site is
different, and includes a utility line that may significantly alter
hydrological conditions. Since many project proponents keep utility
line right-of-ways free and clear of all natural vegetation, the
chemical and physical consequences of putting in the utility line can
be quite enduring.
The NEPA analysis of biological impacts (to benefit life and
vegetation) is similarly myopic. Again, the document ignores the
permanent stripping of vegetation an integral and foreseeable part of
placing the utility line and suggests that the changes in ecosystem
structure or species diversity are likely to result only from
``compacted subsoils'' at the site.
Other aspects of the decision document are simply incomplete. The
analysis recognizes the danger that construction of a utility line may
create a ``french drain'' that inadvertently destroys a wetlands, but
the permit offers no safeguards to avert this. Also, although the
nationwide does not allow drainage tile to be placed, it does authorize
the laying of pipes carrying drainage. Combined with the fact that NWP
12 authorizes ``intakes and outfall structures,'' this nationwide seems
to clearly authorize the construction of storm drains through and into
wetlands and other waters. These flows can represent significant and
destructive changes from natural conditions. NWP 12 should not be
reissued until this flaw is addressed.
Another baffling omission in the decision document is its failure
to consider what substances will run through the pipes placed under the
nationwide. The purpose of environmental assessment is to assist
decision makers and the public in evaluating the environmental merits
of a proposal by understanding its full implications. By definition, a
pipeline spill in a wetland will release the contents of the pipeline
into a wet environment with existing surface or groundwater flows.
Spills in wetlands are therefore more likely to result in widespread
contamination than spills in uplands. Since once a pipeline is built,
there will not be an alternative route for the materials flowing
through it, the proper time to consider the potential impacts of a
spill is clearly when the route for a pipeline including its route
through waters of the United States is being chosen. By itself this
factor argues for excluding any pipeline or utility line that carries
hazardous or disease-causing substances from NWP 12, requiring an
individual Sec. 404 permit (including an alternatives analysis)
instead. In any event, in failing to deal with the prospect of utility
line breaches and spills, the Corps' NEPA analysis of NWP 12 falls far
short of the requirements of the statute.
Although the Corps' records on the use of NWP 12 to date do not
reveal the forts of projects authorized under the nationwide, the
clusters of NWP 12 authorizations in Wyoming, Texas, Oklahoma, North
Dakota, South Dakota, and Montana suggest that oil and gas pipelines
are primary beneficiaries of NWP 12 in a number of states. Thus there
is particular reason to be concerned about what the pipes are carrying.
Like the decision documents for many of the other nationwides, the
document for NWP 12 biases its estimate of the benefits of the
nationwide by ignoring the alternative to NWP 12 authorization:
individual permit review. The analysis wrongly claims as a benefit of
NWP 12 the ``positive effect on the local economy'' of building a
pipeline or utility line. But these benefits would in almost every case
also occur under an individual permit Nearly all projects that gain
approval under NWP 12 that would not be approved in the same form if
NWP 12 did not exist are projects with routes for which there exist
less-damaging, practicable alternatives. It thus makes no sense to
credit NWP 12 with promoting economic growth, since these alternatives
would have produced the same spur to the economy. In addition, the
negative economic effects that stem from poor siting will more likely
be averted by thorough individual review than by authorization under a
nationwide.
In an act of faith, the Corps asserts that ``time savings
associated with the use of the NWP will encourage applicants to design
their project within the scope of the permit rather than to request an
individual permit which could have a greater adverse impact.'' No doubt
applicants will seek authorization under NWP 12 rather than an
individual permit. However, given that the ``scope'' of NWP 12 is wide
open, why should an applicant make any effort to reduce project
impacts?
Finally, the Corps fails to explain why utility lines constructed
under NWP 12 do not pose a threat to flood control functions. It offers
two rationales: (1) that the Corps retains discretion to condition the
use of NWP 12 in any specific case; and (2) that impacts under NWP 12
are only temporary. As, noted above, the second of these is false. The
first is irrelevant; the test for gauging the impacts of a nationwide
must not be what the Corps could do at its best, but what impacts the
proposal would routinely approve.
Additional comments. The loose standards of NWP 12 actually create
an incentive to locate utility projects in wetlands where development
for other purposes has,been properly discouraged. The text of the
nationwide acknowledges that utility lines authorized under it can run
parallel to waters of the United States. As a result, various projects
authorized under NWP 12 have been designed to run through flood plains
or other wetlands for great lengths.
NWP 12 is also often stacked with NWP 14 and NWP 26 to facilitate
the authorization of development projects. Thus large projects with
significant impacts are allowed to avoid the individual permit process,
including its public notice and comment provisions. Allowing NWP 12 to
be stacked with NWPs' 14 and 26 invites developers to run sewer, water,
or other utility lines straight down the streambeds of new
developments, saving uplands for houses and roads.
Finally, NWP 12 demonstrates the need for universal PCNs. As
written, NWP 12 only requires an applicant to notify the Corps where
the applicant intends to keep sidecast material in jurisdictional
waters for over three months (the District Engineers can extend this
time for up to 6 months). Corps records provide no way to tell how many
applicants show up to request this extension after having completed
their projects without reporting. At that point, the Corps can still
perform a mandatory kickout if the PCN shows more than minimal impacts;
but the damage to wetlands or waters has been done. The best way to
avoid this situation is to require a PCN up front for all NWP 12
authorizations.
Recommendations: NWP 12 needs substantial reining in if it is to
have any chance of complying with CWA Sec. 404(e). First, the Corps
should explicitly exclude from cov-
erage under NWP 12 all long, linear utility projects; these are
appropriately permitted only under the individual permit process.
Second, the Corps should explicitly require revegetations to pre-
project conditions (same type of vegetation), not just retention of
original contours. Finally, the Corps must prohibit the stacking of NWP
12 with itself or other nationwides.
NWP 13 Bank Stabilization
NWP 13 authorizes bank stabilization activities aimed at preventing
erosion. The nationwide includes a set of conditions, but these operate
as a floor, rather than a ceiling: projects within these conditions are
authorized with no PCN, while projects that exceed these limits can be
authorized at the discretion of the District Engineer.
The permit has been widely used: the Corps' RAMS database estimates
that 17,951 projects were authorized under NWP 13 between 1988 and June
1996. This figure represents only the tip of the iceberg; the surveys
sent by the Districts on their use of nationwides in 1995 suggest that
even in the most accurate year of recording, the Districts
underrecorded known uses of NWP 13 by a factor of 2 to 5 (the Fort
Worth District estimated it had undercounted by a factor of almost 20).
Moreover, since NWP 13 requires a PCN only for projects that exceed its
impact ceiling, innumerable uses of the nationwide may have occurred
without being recorded. None of the statistics suggests how many uses
of NWP 13 were never reported to the Corps.
As written, NWP 13 violates CWA Sec. 404(e); as applied, it is
poorly enforced and widely abused. If it is to be reissued at all, it
must be tightly redrawn.
Compliance with CWA Sec. 404(e). NWP 13 violates CWA Sec. 404(c)'s
prohibition of general permits that authorize more than minimal
individual and cumulative impacts. While NWP 13 including set size and
length limitations, its also provides that the District Engineer may
use his or her discretion to approve larger bank stabilization projects
under NWP 13 as well. There is no legal distinction between setting an
impacts ceiling to prevent minimal impacts but letting DE discretion
approve projects beyond that ceiling, and setting a ceiling too high
but relying on DE discretion (or PCN kickout) to screen out projects
with more than minimal impacts. Both violate CWA Sec. 404(e).
To comply with CWA Sec. 404(e), a nationwide must be written in
terms that cannot authorize more than minimal individual and cumulative
impacts, without relying on the DE's discretion. Else, nothing would
prevent the Corps from issuing a nationwide to cover all discharges, so
long as the terms of the nationwide called for the DEs to screen out
projects with more than minimal impacts. That reduces the many
safeguards of the individual permit process to one Corps discretion and
sabotages the plain meaning of CWA Sec. 404(e). At a minimum, in
reissuing NWP 13, the Corps must eliminate the DE's discretion to
approve projects that exceed the impact ceiling of the nationwide.
Even NWP 13's current impact ceiling violates Sec. 404(e)
cumulative impact ceiling. Statistics discussed above indicate that NWP
13 is widely used; they provide no basis to say that projects within
NWP 13's impact ceiling have only minimal individual and cumulative
impacts. Anecdotal evidence suggests they do not. Moreover, NWP 13
leaves it to project applicants to choose appropriate stabilizing
materials and to estimate average amounts of fill below the plan of
ordinary high water. Sparse Corps monitoring of project compliance with
NWP 13 has meant that in practice, projects authorized under NWP 13
have regularly had far more than minimal impacts.
Compliance with NEPA and the 404(b)(1) Guidelines. The decision
document for NWP 13 includes one of the more bizarre features of any of
the nationwide decision documents. Section 3(d), ``Public Review and
Comments,'' reviews and rejects public comments urging the Corps to
reduce the impact ceiling on NWP 13 and provide more protective
conditions. Since the comment period is still running, this section
would appear to be either a response prepared before any of the public
comments have been received, or a set of paragraphs cut and pasted here
out of the final 1991 rule as the Corps prepared this document. This is
the sort of mistake that one would think an agency even, mildly
attentive to its NEPA responsibilities would avoid.
The decision document is inadequate in other respects. For example,
the documents do not list ``wetlands'' as a factor relevant to issuance
of NWP 13. Although NWP 13 does not apply in special aquatic sites, it
does have impacts on them. Projects authorized under NWP 13 have been
reported to result in erosion into wetlands and other special aquatic
sites, and bank stabilization can lead to changes in waterflows that
damage wetlands downstream. The decision document remains oblivious to
these impacts, and thus fails to demonstrate that NWP 13 complies with
the 404(b)(1) Guidelines.
In another puzzling statement, the document notes that ``the NWP
should be applied within two years of an erosion event caused by storms
or floods (33 CFR 330.5(a)(3)).'' Nowhere in NWP 13 does this
condition, or any like it, appear. Nor is it clear what connection this
condition has to the CFR citation, which is the section that requires
Corps compliance with the 404(b)(1) Guidelines.
Those likely impacts on NWP 13 that the decision document does
describe (in general terms), it fails to demonstrate will be minimal or
to propose remedies for them. For example, the document notes that bank
stabilization projects may interfere with recreation, but concludes,
``the temporary nature of the structure or work is expected to minimize
this impacts.'' Applicants rarely intend riprap to be temporary; when
it turns out to be, it generally creates other serious problems--which
the document also does not address.
Other comments. Like many other of the nationwides, NWP 13 applies
to tidal as well as nontidal wetlands and waters. NWP 13 usage
statistics bear out the anecdotal evidence that bank stabilization
projects have caused significant problems along estuaries and coasts.
Inland, NWP 13 has been used to facilitate channelization.
Recommendation: If NWP 13 is to be reissued, it should have a firm,
clearly minimal impact ceiling, above which projects must obtain
individual review. Also, unless the Corps can document that the current
length of 500 feet is in fact minimal in all eases, it should shorten
the ceiling. In any event, the Corps must improve its monitoring of NWP
13 projects and its enforcement efforts against applicants who violate
NWP 13 conditions, and must initiate a meaningful assessment of the
cumulative impacts of NWP 13 authorizations.
NWP 14 Road Crossing
NWP 14 authorizes fills in wetlands and other waters for the
construction of road crossings, with a variety of limiting conditions.
The Corps' RAMS database suggests that, at a minimum, over 13,000
projects were authorized under NWP 14 between 1988 and 1996. Districts
responding to the 1995 District survey estimated that in 1995 RAMS
undercounted the actual number of NWP 14 authorizations by a factor of
at least 2 to 3.
NWP 14 lacks critical safeguards to ensure that projects authorized
under it cannot have more than minimal individual and cumulative
impacts most notably, the .3 acre fill ceiling is too high, and the
Corps needs to prohibit the stacking of NWP 14 with other permits.
Compliance with CWA Sec. 404(e). NWP 14 has authorized more than
minimal individual and cumulative impacts, and its reissuance will
violate CWA 404(e) unless it is narrowed. As written, the conditions of
NWP 14 restrict only the acres of fill, not the acreage of impacts. As
a result, in the Savannah District alone, some 14 out of 25 projects
under NWP 14 that were recorded in 1995 as having any acreage impacts,
have impacts over the fill ceiling of the nationwide (no acreage
impacts are recorded at all for another 13 projects). We note this not
to condemn the Savannah District, which has been more forthcoming with
its permitting data than many Districts, but as an indication that NWP
14 is far looser a permit than it at first appears.
The decision document suggests that NWP 14 meets the minimal
impacts standards because the District Engineer remains free to require
mitigation for projects under the nationwide and to attach additional
conditions to NWP 14 authorizations as he deems necessary. However,
these expedients do not cure NWP 14's ills. Corps regulations are clear
that, without regard to mitigation, a project must fall within the
impact ceiling of a nationwide before it can be authorized under it.
See, general condition 13(f), 33 CFR Sec. 330 Appendix A. By the same
token, without regard to mitigation, a nationwide must fall beneath the
minimal individual and cumulative impact ceiling before it can be
legally issued under CWA Sec. 404(e). Even were mitigation
theoretically permitted to ``buy down'' the cumulative impacts of
projects under NWP 14, the bad track record of Corps-supervised
mitigation provides no grounds on which to believe mitigation actually
would keep net impacts minimal.
Finally, the discretion of the District Engineer exercised at the
rushed paced of nationwide authorization cannot substitute for thorough
environmental review and comment by the Corps, the federal resource
agencies, and the public in tide context of the individual permit
process. The Corps offers no statistics on the District Engineers' use
of discretion, and the Corps rarely enforces the conditions of the
nationwides anyway. Where projects have more than minimal individual or
cumulative impacts, no degree of Corps discretion can make a nationwide
legal.
Compliance with NEPA and the 404(b)(1) Guidelines. The decision
document for NWP 14 leaves much to be desired as an environmental
assessment and does, little to demonstrate compliance with the
404(b)(1) Guidelines. The document does admit that vegetation and
habitat may be destroyed when roads are put in. However, the
unsubstantiated claim that restricting the width of fill to the minimum
necessary and the length to 200 linear feet will minimize impacts is
inadequate. The showing needed to satisfy the Guidelines and CWA
Sec. 404(e) is not merely that the impacts of projects under NWP 14
have been minimized, but that they are minimal.
Further, the decision document offers no reason to believe that
projects authorized under NWP 14--particularly where these projects are
being authorized under a combination of NWP 14 stacked with other
nationwides--will not substantially degrade the aquatic environment.
NWP 14 cannot comply with the 404(b)(1) guidelines without such a
showing. Moreover, the decision document cannot serve as an adequate
NEPA analysis until the Corps looks hard enough at the question to make
a defensible decision.
Other comments. NWP 14's most serious flaw inheres in the Corps'
practice of allowing it to be stacked with other nationwides and with
individual permits, to shield projects with more than minimal impacts
from public notice and comment and searching environmental review. The
RAMS database indicates that NWP 14 is one of the most commonly stacked
nationwides. Most often, NWP 14 seems to be used to authorize half of a
project whose other half gets approved under NWP 26; sometimes NWP 14
is joined with NWPs 33 (temporary construction and access) or 17 (Coast
Guard approved bridges).
Recommendation: The Corps should lower the fill ceiling on NWP 14
as necessary to ensure that direct and indirect impacts of projects
authorized under NWP 14 are truly minimal. Further, the Corps must
explicitly ban the practice of stacking nationwide permits that exceed
the conditions of any one nationwide.
NWP 15 U.S. Coast Guard Approved Bridges
NWP 15 authorizes impacts resulting from the construction of
bridges across navigable waters of the United States, provided that the
U.S. Coast Guard has permitted the bridge. NWP 15 requires a PCN to the
Corps, including a delineation of affected wetlands and a proposal for
mitigation.
NWP 15 illegally delegates the Corps' CWA Sec. 404 responsibilities and
should not be reissued
Compliance with CWA Sec. 404(e). NWP 15 violates the minimal
individual and cumulative impacts standards of CWA Sec. 404(e). The
nationwide imposes no limit on the impacts that may be authorized under
NWP 15. The fact that the PCN must include mitigation plans to offset
lost functions does not render the impacts minimal, since, as the Corps
acknowledges in general condition 11, offers of mitigation cannot be
used to ``buy down'' impacts before the judgment of whether a project's
impacts are minimal is made.
Even were ``buying down'' impacts permissible, NWP 15 fails to do
it successfully. The decision document relies heavily on ``the
requirement to propose appropriate and practicable measures to mitigate
the loss of special aquatic sites. * * *'' However, actual mitigation
in the Sec. 404 program consistently falls far short of
proposed,mitigation. Moreover, many impacts' of NWP 15 projects cannot
practicably be mitigated, including the destruction of peat wetlands or
bottomland hardwoods. NWP 15 simply writes these impacts off, yielding
much more than minimal losses.
Compliance with NEPA and the 404(b)(1) Guidelines. The Coast Guard
approval process that NWP 15 substitutes for Sec. 404 authorization
lacks most of the safeguards of the 404(b)(1) Guidelines, including the
requirement of alternatives analysis and the prohibition of substantial
degradation. Since there is no way to demonstrate in advance that the
projects authorized by the Coast Guard (and therefore by NWP 15) will
not violate the 404(b)(1) Guidelines, NWP 15 cannot be issued.
The Corps' answer to this problem makes matters worse. The NWP 15
decision document notes, ``the NWP 15 notification procedures will
allow the District Engineer to ensure that adverse environmental
impacts of the proposed activity are minimal.'' This suggests that,
short of discretionary intervention by the District Engineer, NWP 15
will not have minimal impacts. However, even if the Corps could be
relied upon to perform a searching review of projects under NWP 15, the
nationwide essentially replaces the individual Sec. 404 permit process
with one that excludes the public and the other federal resource
agencies, and that leaves the Corps accountable to no one.
The decision document also violates the 404(b)(1) Guidelines and
NEPA by ignoring several significant impacts of bridge construction,
including alteration of flood flows and fish and wildlife impacts
resulting from the long term presence of bridge structures. The
decision document does admit that bridges may have damaging impacts on
the recreational values of a stream, river, or wetland. These impacts
can result in the significant degradation of wetlands and other special
aquatic sites, and the projects that would cause them are supposed to
be prohibited under the 404(b)(1) Guidelines. Nonetheless, NWP 15
authorizes them.
Other comments. An intrinsic flaw of NWP 15 is that although it is
issued as a nationwide permit, it is in function a programmatic permit,
granted to another federal agency. NWP 15 does not authorize a narrow
category of similar activities with minimal impacts; it authorizes any
bridge project permitted by the Coast Guard's regulatory program, on
the (erroneous) grounds that that program provides comparable
protections to the resource.
Even interpreted as a programmatic permit, NWP 15 is inadequate.
Only where the non-Corps program applies standards that are virtual
reflections of the 404(b)(1) guidelines can a programmatic permit have
any chance of avoiding significant wetlands loss. As noted above, the
U.S. Coast Guard has no regulations remotely similar to the 404(b)(1)
Guidelines. Further, programmatic permits must have low impact
thresholds and must provide for Corps and federal resource agency
review of all projects with more than slight impacts. NWP 15 does
neither.
The public interest justification offered for NWP 15. In the
decision document presents a peculiar justification for the nationwide:
``the need for the NWP is based upon the large number of permit
applications related to highway projects. It can also be used in
conjunction with several other proposed NWPs for minor activities.''
These two statements strongly suggest that NWP 15 will have more than
minimal cumulative impacts, since it will be used again and again and
in conjunction with other NWPs (no doubt NWPs 14 and 23, in
particular). Beyond confirming that NWP 15 will violate CWA
Sec. 404(e), the Corps' public interest discussion indicates just how
far off course the Corp's' sense of its CWA duties has veered. Bridges
over navigable water are usually built as part of larger transportation
projects. One does not build two halves of a road in one place and the
bridge connecting them in another. The proper time for considering
alternatives and planning how to minimize impacts is when the entire
transportation project is being planned. CWA Sec. 404 demands that kind
of comprehensive analysis. For the Corps to ``end duplication'' and
save money by splitting transportation projects up under the
nationwides, in the process eliminating alternatives analysis, is penny
wise and pound foolish. What the CWA requires, and what the Corps
should do, is process transportation projects, without segmentation,
under the individual permit process.
Recommendation: The Corps should not reissue NWP 15. If there
exists a limited category of bridge projects the impacts of which are
individual and cumulatively minimal, considered separately and apart
from proposed mitigation, then the Corps might consider issuing a
carefully tailored nationwide to cover just those activities.
NWP 17 Hydropower Projects
NWP 17 authorizes the discharge of dredged or fill material
associated with hydropower projects, including their discharge, as
authorized by the Federal Energy Regulatory Commission (FERC) under the
Federal Power Act of 1920, provided the permittee notifies the District
Engineer 30 days prior to starting the project.
Compliance with CWA Sec. 404(e). NWP 17 fails to meet CWA
Sec. 404(e)'s requirement that all activities issued under a nationwide
be ``similar in nature.'' Without size limitations, plant requirements,
or discharge regulations, projects issued under NWP 17 cover a broad
spectrum of activities. Hydropower projects come in all shapes and
sizes with a large variety of discharges and effects on the surrounding
waters and wetlands. Without size and discharge limitations, NWP 17
fails to meet 404(e) standards.
Similarly, because these limitations and requirements are absent in
NWP 17, ``minimal individual impact'' cannot be assured. If a
hydroplant of any size can obtain a NWP 17, the Corps cannot
demonstrate that there will be minimal adverse environmental impacts
for even one project. As a result, NWP 17 also violates 404(e)'s
``minimal cumulative impacts'' standard.
Compliance with NEPA and the 404(b)(1) Guidelines. We note that the
NWP 17 decision document does not analyze the current NWP 17. Instead,
it evaluates the wording proposed by the Corps for NWP 17 in 1991 and
rejected in the face of hostile public comments. This is an improbable
mistake and suggests the Corps has not taken its responsibility to
assess the environmental impact of the NWPs seriously. In any event,
given that the relevant decision document was not made available to the
public, the Corps has failed to meet the NBPA analysis requirement in
regards to NWP 17.
Although NWP 17 was modified in 1991 when reissued, we will respond
to the decision document by reiterating our comments concerning the
prior permit NWP 17 as it was proposed in 1991, applied to all
hydropower projects licensed by the FERC. Because virtually all FERC-
licensed projects result in significant adverse impacts, allowing the
FERC to grant projects through NWP 17 would have violated every
standard of section 404(e). In addition, FERC standards do not coincide
with those of 404(b)(1) and there is no assurance that there would be
an equivalent review.
As proposed to be reissued without change in the June 17, 1996
reissuance proposal, NWP 17 has been given size limitations. However,
it still delegates permitting decisions to FERC, leaving the issue of
discrepancies between FERC guidelines and 404(b)(1) Guidelines
unresolved. Unlike the 404(b)(1) Guidelines, FERC guidelines are vague
and authorize projects that have the potential to significantly degrade
``waters of the United States.'' Finally, the CWA grants the Corps no
authority to delegate its regulatory responsibilities to FERC, so NWP
17 would be illegal even if FERC applied the 404(b)(1) Guidelines.
Specific problems relating to the NWP 17 decision document, aside
from its analyzing the wrong permit, mirror those found in all of the
other NEPA documents. First, the Corps encourages the stacking of
nationwide 17 with other NWPs and regional permits, thus advocating
large projects without individual permit review. In addition, the Corps
also cites its faceless survey that ``expects'' NWP 17 to be used 20
times a year. Lastly, the document, in many places, is just a carbon
copy of sections of other decision documents. For example, section
4(d)(ii), ``Physical, chemical and biological characteristics of the
aquatic ecosystem,'' is fungible with the same section in at least 20
of the other decision documents. A factual and trustworthy NEPA
analysis of each individual permit is not the clone of 20 other
documents, but one which details how each specific permit will impact
the surrounding environment By copying complete sections of previous
documents, the Corps has failed to produce a thorough decision document
for both NWP 17 and many, other nationwide, permits.
In closing, we question the need for nationwide 17. Could the
activities authorized under NWP 17 not be authorized under NWPs 18 and
19? If not, the Corps must explains how projects with larger, impacts
that those allowed by NWPs 18 and 19 can be considered minimal in
individual and cumulative impacts.
Recommendations: NWP 17 should not be reissued.
NWP 21 Surface Mining Activities
NWP 21 authorizes surface mining activities on any scale and with
any level of wetlands impacts so long as the applicant holds a
reclamation plan approved by the federal Office of Surface Mining or
one of its state counterparts.
NWP 21 illegally delegates the Corps responsibilities to the
federal and state mining agencies that apply weaker standards; in
addition, the nationwide relies upon mitigation to ``buy down'' the
individual and cumulative impacts of projects under the nationwide. NWP
21 is a special interest nationwide designed to excuse the surface
mining industry from compliance with the individual Sec. 404 permit
review process. It should not be reissued.
Compliance with Sec. 404(e). NWP 21 includes no cap on impacts to
wetlands or other waters. Instead, it relies on federal or state mining
programs, coupled with the discretion of District Engineers, to place
restrictions on surface mining projects that ensure their effects are
minimal. On its terms, NWP 21 authorizes huge surface mining projects
that destroy large areas of wetlands and waters, and can only be
permitted under Sec. 404 because they are accompanied by reclamation
and mitigation plans. That is precisely the sort of project that the
individual Sec. 404 permit process, with its call for review by the
federal resource agencies and its public notice and comment provisions,
is intended to cover.
Nor, does the requirement of mitigation bring NWP 21 into
compliance with Sec. 404(e). As noted above, CWA Sec. 404(e) requires
that the gross (not net) impacts of a nationwide be minimal. Otherwise,
the entire Sec. 404 program could be reduced to a nationwide, cutting
the other federal resource agencies and the public out of wetlands
protection altogether, on the assumption that Corps' imposed mitigation
requirements would result in no net loss of wetlands overall.
Compliance with NEPA and the 404(b)(1) Guidelines. The decision
documents for NWP 21 include no analysis of those projects authorized
under NWP 21 in the past, and address the utter destruction of the
surface environment that attends strip mining with the same stock
paragraphs used for all the other nationwides. This does not satisfy
either NEPA or EPA's nationwide issuance regulations, both of which
demand a reasonably definite articulation of the impacts of the
projects NWP 21 authorizes.
In addition, the decision document does nothing to demonstrate that
NWP 21 will comply with the 404(b)(1) Guidelines' prohibition of
significant degradation of waters of the United States. The decision
document raises only two safeguards to counter the varied threats to
waters of the United States: mitigation and the discretion of District
Engineers to add appropriate conditions to prevent upstream flood-
ing. As noted above, mitigation cannot bring a project with more than
minimal impacts within the purview of a legitimate nationwide. But even
if it could, the decision document fails to explain how, given its
terrible track record, mitigation can reasonably be expect to fully
offset the impacts of surface milling. Further, the document makes no
effort to address the temporal gap between the destruction of wetlands
and waters as mining activities commence, and the reclamation of the
site when mining is finished.
As for the discretion of the DE to prevent upstream flooding, if
compliance with 404(b)(1) turns on that, issuance of NWP 21 is illegal.
Further, the decision document does not describe what conditions can
avert flooding, even where the DE is inclined to impose them.
Other comments. In addition to violating CWA Sec. 404(e) by
authorizing projects with huge impacts on wetlands and waters, NWP 21
also violates Sec. 404(a) by delegating to the federal Office of
Surface Mining and its state counterparts the duties of the Corps under
the individual permit process. NWP 21 is in essence another
programmatic general permit, relying on these other regulatory programs
to ensure that surface mining projects comply with the standards of the
Sec. 404 program. However, the federal and state surface mining
programs are not bound by EPA's 404(b)(1) Guidelines or by the Corps'
public interest test, and have very different agency missions than the
Corps. In any event, the Corps has no statutory authority to delegate
its responsibilities to these other agencies.
We also note that the Corps' hoary explanation that tight resources
require the agency to stretch CWA Sec. 404(e) past its breaking point
has even less merit here than usual. The Corps' RAMS database appears
to include no NWP 21 authorizations; the surveys of the 1995 activities
of the Districts reveal only a handful: 3 in Baltimore; 4 in Fort
Worth; 2 in Louisville; 2 in Kansas City; 1 in Albuquerque; 9 in Omaha;
5 in Pittsburgh; 3 in Tulsa; and none in any other District that shared
its responses with us. Given that each of these projects likely had
more than minimal individual impacts, there is no excuse for not
requiring an individual permit for each.
Recommendation: The Corps should not reissue NWP 21.
NWP 23 Approved Categorical Exclusions
NWP 23 authorizes projects with any level of impacts that other
agencies have categorically exempted from NEPA, and that the District
Engineer agree should fall under the nationwide.
NWP 23 illegally delegates to all other federal agencies the
ability to decide which of the projects they conduct or permit will
need to meet the individual review standards of Sec. 404. NWP 23
projects also violate the minimal impact standards of CWA Sec. 404(e).
NWP 23 should not be reissued.
Compliance with CWA Sec. 404(e). Since NWP 23 places no substantive
limits on what projects can be labelled as having categorically minimal
impacts, the nationwide effectively has no ceiling on individual or
cumulative impacts, and covers a broad range of activities. NWP 23 thus
violates all three prongs of CWA Sec. 404(e). Since the Corps lacks
authority under the CWA to delegate the determination of minimal
impacts to other agencies, NWP 23 would be illegal even if the criteria
for NEPA categorical exclusions mirrored the minimal impact standard of
Sec. 494(e). In fact, the criteria for NEPA categorical exclusions and
for CWA general permits do differ. One glaring example of this
difference lies in the Department of the Army's recent proposed
modifications to its minimal effect regulations. These modifications,
proposed at 61 Fed. Reg. 37865, July 22, 1996, would amend 33 CFR
Sec. 651.21(c) to include a new categorical exclusion for construction
and road building causing up to five acres of disturbance. Although the
exclusion would not apply to the Corps as an actor (i.e., when the
Corps dredges), it would operate under NWP 23 to shield Army projects
with less than five acres of wetlands impacts from individual Sec. 404
review. That is a far greater than minimal impact; but NWP 23 makes it
possible for the Corps to authorize this under a nationwide.
NWP 23 does require other agencies to notify the Corps of their
categorical exclusions (at least 30 days in advance of work in
wetlands) and instructs the Chief of Engineers to solicit public
comments. Whether these comments are intended to address the adoption
of a particular categorical exclusion under NWP 23, or instead just the
authorization of a particular project under NWP 23, is unclear. In any
event, a thorough search of the 1994, 1995, and 1996 Federal Registers
uncovers no public notices for categorical exclusions or projects under
NWP 23, even though Corps RAMS database records indicate that more than
1,730 projects were authorized under NWP 23 between January 19,94 and
June 1996. Further, our inquiries have failed to unearth any list of
categories of activities eligible for NWP 23. How-
ever the requirement of public notice is intended to work, it does not
appear to reach a wide audience.
On the other hand, authorizations under NWP 23 clearly do happen,
with significant impacts. The incomplete data available from the Corps'
RAMS database suggests that projects authorized under NWP 23 have
larger individual impacts than those under perhaps any other
nationwide. Given the state of the data, it is impossible to know for
sure; for example, out of 524 NWP 23 authorizations in South Dakota
between 1988 and 1996, only 4 records include acreage impact
information. Nonetheless, on average, NWP 23 projects with recorded
acreage impacts have larger average impacts than projects with recorded
acreages under NWPs 12,13, 14, 26, or 29.
Compliance with NEPA and the 404(b)(1) Guidelines. The decision
document largely recognizes the impossibility of conducting, a detailed
assessment of the possible impacts of a nationwide as broadly drawn as
NWP 23: ``Numerous scenarios involving many possible combinations of
activities along with combinations of site specific data could be
considered here. However, only ``typical'' situations will be evaluated
in order to address impacts of these activities.'' That is not an
adequate basis on which to issue a nationwide. Even taking it on its
own terms, however, the decision document is inadequate, as it never
suggests what a ``typical'' situation might be.
At a minimum, the decision document should have given some
indication of the set of activities the Corps intends this nationwide
to cover. Does that set include Army activities with up to 5 acres of
impacts? Highway projects that a state Department of Transportation has
decided are environmentally benign? If not, what guidelines does the
Corps intend to use to winnow appropriate categorical exclusions from
ones that will not he adopted under WP 23? Faced with the blank slate
of the language in the proposal, the decision document should at a
minimum have analyzed thoroughly the types of projects that have been
authorized under NWP 23 in the past, and used these as a basis from
which to project future impacts. Instead, the decision document repeats
the Corps' full set of boilerplate bullets, confirming that these bear
no relation to any specific set of conditions likely to occur under
this or any other nationwide.
The decision document for NWP 23 also fails to make any of the
showings required by EPA and Corps regulations. Issuance of NWP 23 on
the basis of this decision document would violate 40 CFR Sec. 230.7(a)
(requiring compliance with the minimal individual and cumulative
impacts and similar in nature and impacts standards of CWA
Sec. 404(e)); 40 CFR Sec. 230.7(b)(12) (requiring a complete evaluation
of the potential impacts of the nationwide, including ``a precise
description of the activities to he permitted under the General permit,
explaining why they are sufficiently similar in nature and in
environmental impact to warrant regulation under a single general
permit * * *''); and 40 CFR Sec. 230.7(b)(3) (requiring an evaluations
of the cumulative effects of the nationwide, including ``the number of
individual discharge activities likely to he regulated under'' the
nationwide). Though the decision document makes little effort to comply
with these standards, NWP 23 is so unfocused that it seems doubtful any
decision document on this nationwide could.
The NWP 23 decision document also fails to demonstrate that NWP 23
will not violate the 404(b)(I) Guidelines' prohibition of significant
degradation of waters of the United States. Thus, reissuance of NWP 23
would also violate the Corps' regulations at 33 CFR Sec. 330.5(b)(3)
(requiring ``404(b)(1) guidelines compliance analysis''). In addition,
33 CFR Sec. 330.5(3) requires Corps' documentation to ``reflect the
Chief of Engineers' evaluation of the use of the permit since the last
issuance.'' Since the Corps' records on the use of NWP 23 are poor,
that may he difficult, but NWP 23 cannot he legally reissued without
it.
Other comments. Although NWP 23 breaks the boundaries of CWA
Sec. 404(e) and the Corps and EPA's regulations, it has been shielded
from public outrage by its complexity and by the fact that no list
seems available of the activities it covers, so the public has no easy
way to imagine what impacts it might allow. Nonetheless, reissuing NWP
23 in its current form is a shell game unworthy of the Corps.
It is also unnecessary. Any categories of projects with truly
minimal impacts are appropriate candidates for other CWA nationwides or
other general permits, whether or not they have been identified as
categorical exclusions by other agencies. Rather than reissuing NWP 23,
the Corps should pick out the categories of activities currently
authorized under NWP 23 that genuinely meet the minimal impacts
standards of CWA Sec. 404(e) and then issue a legal nationwide permit
for each of those categories.
We are also concerned that, as written, NWP 23 may smuggle into the
nationwide permit system many of the same Farm Bill exemptions as
proposed NWP B (see below). NWF is not prepared to tolerate the use of
NWP 23 to abdicate EPA and the Corps' CWA authority on agricultural
lands.
Finally, we note that the decision document states that NWP 23 may
he stacked with other nationwides. NWF feels this is an overly generous
gift for the Corps to bestow upon projects whose nature it cannot
trouble itself to speculate about in the decision document Anecdotal
evidence suggests that a large number of the authorizations under NWP
23 are for highway projects, which are no doubt also benefitting from
NWP 14 and perhaps NWP 17. Once again, we urge the Corps to explicitly
prohibit stacking of these and all other nationwide permits.
Recommendation: The Corps should not reissue NWP 23. Instead, the
Corps should examine each of the categorical exclusions which it has to
date adopted under NWP 23, and should issue individual nationwides to
cover each of these if they are truly minimal in individual and
cumulative impacts.
NWP 26 Discharges Into Headwaters and Isolated Wetlands
Nationwide permit 26 (NWP 26) authorizes the discharge of dredged
and fill material into non-tidal headwaters and isolated waters of the
United States provided the discharge does not cause the loss of more
than 10 acres of waters of the United States. Permittees are required
to provide a predischarge notification (PDN) to the Corps for all fills
between 1 and 10 acres. No notification to the Corps is required for
fills of less than 1 acre.
First created in 1977 to reduce the Corps' permitting workload, NWP
26 and its forerunners have consistently authorized the loss of more
wetlands than any other general permit. By far the most environmentally
destructive and blatantly illegal of the Corps' nationwide permits, NWP
26 violates CWA 404(e), the 4O4(b)(1) guidelines, and plain common
sense and should not be reissued.
1. Broken Promises of Monitoring
When the Corps proposed issuing the nationwide permits in 4991, NWF
and many other organizations expressed reservations about a number of
the permits, but were especially concerned that NWP 26 would authorize
far more than the minimal individual and cumulative environmental
impacts permitted by law. Some environmentalists called NWP 26 the
``black hole'' of wetlands destruction, but hard information on the
permit's wetlands impacts was scarce. In an attempt to allay the
public's fears, the Corps pledged to ``monitor'' the activities
authorized by the permit and make necessary revisions:
The Corps will continue to monitor the effects of NWP 26 and
the appropriateness of the acreage limitations as well as the
categories of waters that are appropriate for coverage under
NWP 26. If, in the future, the Corps determines that lowering
the acreage limits or eliminating categories of activities may
he appropriate, the Corps will propose such changes for public
comment 56 Fed. Reg. 59126.
In March of 1996, anticipating the Corps' proposed reissuance of
NWP 26, NWF submitted a FOIA request to Corps Headquarters requesting
the information necessary for a complete analysis of the impacts of the
permit (Attached as Exhibit 2). There were several components to this
request. First, NWF straightforwardly requested: ``All studies,
reports, assessments, evaluations, summaries, and other records
indicating or estimating the direct or indirect cumulative
environmental effects of NWP 26.'' To determine the acreage and
environmental value of the wetlands filled under NWP 26, NWF requested:
``All predischarge notifications (PDNs) received by the Corps'
Districts of Divisions pursuant to NWP 26.''
NWP 26 does not require a PDN for fills under 1 acre. The Corps
therefore is not notified of all fills of under 1 acre that would
qualify for NWP 26. To determine, as best as possible, the probable
environmental impact and acreage of such fills, NWF requested: ``All
records, including verification requests and confirmations, individual
water quality certifications, and individual coastal management
consistency statements, pertaining to discharges authorized by NWP 26
causing the loss of less than one acre of waters of the United
States.''
Finally, to determine how often discretionary authority was used by
the Corps to ``safeguard'' the environment, and to determine what
criteria was used, NWF requested: ``All records pertaining to every
exercise of discretionary authority by the Corps Districts or Divisions
to require individual authorizations for specific discharges, otherwise
eligible for authorization under NWP 26, because the discharge would
potentially have more than minimal individual or cumulative adverse
environmental effects.'' \2\
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\2\ In its preliminary decision document, the Corps notes that ``an
additional safeguard [to protect the environment] is a provision that
allows the Chief of Engineers, division engineers and/or district
engineers to: assert discretionary authority and require an individual
permit for a specific action; modify NWPs for specific activities by
requiring special conditions on a case by case basis; add special
conditions on a regional basis for certain NWPs; or take action to
suspend or revoke a NWP'' reply to this request. This was not the case.
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In each case, NWF noted that the Corps could substitute a summary
of the requested records as long as it included the necessary
informational description of the activities causing the loss of the
wetlands, a description of the environmental effects of each activity,
a description of the aquatic ecosystem affected by each activity, etc.
In light of the Corps' commitment to monitor NWP 26's effects and the
approaching proposal to reauthorize the permit, NWF presumed that the
Corps would be able to quickly and efficiently process and reply to
this request. This was not the case.
As of the date of submission of these comments, only 20 of the 36
Corps' Districts had responded with information to NWF's request. Most
tellingly, not one District was able to provide any studies, reports,
assessments, evaluations, summaries, or other records estimating the
direct or indirect cumulative environmental effects of NWP 26.
A few Districts were able to provide some information concerning
the assertion of discretionary authority, but most did not have or were
unable to access the information. The Rock Island District had no
records responsive to the request for assertions of discretionary
authority. The Walla Walla District did not recall any exercise of
discretion, and its database did not contain the information. The
Baltimore District had apparently exercised discretionary authority,
but its database did not contain that information and ``an extensive
review of all our individual permit files would be required to
determine those that resulted from exercising discretionary authority.
In general, the Districts that responded to NWF's request indicated
that they could not collect whatever information they possessed to
answer NWF's queries within a reasonable time-frame. For instance, the
Omaha District stated:
The materials you have requested are voluminous, and are
located at field offices located in Helena, Montana; Cheyenne,
Wyoming; Pierre, South Dakota; Bismarck, North Dakota; Kearney,
Nebraska; Littleton, Colorado; and Omaha, Nebraska Because
there is no database that contains the requested information
and there are no summaries of the requested information, the
files at each of the aforementioned field offices would have to
be manually searched file by file in order to provide you with
copies of the requested documents. There are approximately
3,580 NWP 26 actions which would have to be reviewed. Such a
manual search would require many man-hours and would not be
completed by June, at which time it is expected that the
proposed modified NWP 26 will be published in the Federal
Register for review and comment.
Presumably, it will be necessary for these searches to be done in
order for the Corps to make a good-faith attempt at assessing NWP 26's
impacts, but the replies of Omaha and the other Districts suggest that
these searches will never take place.
In order to preserve the Corps' resources and make it possible for
Corps Districts to respond to the FOIA within the five months prior to
the expiration of the comment period on NWP 26, NWF ultimately agreed
to accept a RAMS computer print-out summarizing the information the
Corps had on each fill. Despite this, less than 2/3 of the 28 Districts
that have RAMS records for NWP 26 responded before these comments were
submitted.\3\ Copies of all of the computer printouts submitted to NWF
are attached as Exhibit 3.
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\3\ Sixteen districts with RAMS compatible databases responded. Two
additional districts provided computer summaries from databases
incompatible with the RAMS system.
---------------------------------------------------------------------------
The RAMS queries the Districts ran for NWF generally listed all NWP
26 authorizations recorded on a district's database since 1991. They
provided the permit number, the applicant's name, the name of the
waterway a portion of which was to be filled, the county, section,
township and range of the fill, a short description of the action
authorized, the requested and approved acreage of wetlands directly
impacted, and the acreage of compensatory mitigation provided.
The Rams database does not contain much of the information most
relevant to a determination of NWP 26's impacts. The database does not
record the value of the wetlands that are filled, secondary impacts of
fills, or the types of mitigation provided, making it impossible to
determine the permit's full impacts. The database does not record NWP
26 requests over which the Corps assumed discretionary au-
thority, making it impossible to determine the validity of the Corps'
1991 claim that significant effects on the environment would be
prevented by the Districts' exercise of their discretionary authority.
Finally, the database does not document resource agency participation
in NWP 26 authorizations, making it impossible to judge the Corps'
claims that such participation is ineffective and does not result in
resource protection.\4\
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\4\ The Sacramento field office of the U.S. Fish and Wildlife
Service has suggested that its comments on NWP 26 are ineffective
because the Corps routinely ignores them. U.S. Fish and Wildlife
Service, Wetland Losses Within Northern California from Projects
Authorized under Nationwide Permit No. 26 (1992). Attached as Exhibit
4.
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Generally, the categories of information that are recorded in the
RAMS database provided incomplete data due to district record-keeping
practices. The usefulness of the print outs NWF received varied widely
with the care and attention with which districts had input data into
their databases. For issuance, several districts made no attempt to
record the nature of the fills authorized. Thus, the Detroit District's
unhelpful description of the nature of activities authorized varied
primarily between ``discharge of fill material'' and ``discharge of
dredged material,'' while the Philadelphia District more laconically
limited its description in most instances to ``NWP 26'' or ``fill.''
None of the Districts' RAMS replies provided complete acreage
information The Kansas City District's reply provided acreage figures
for only 58 of the 3,305 NWP 26 fills it recorded. See Exhibit 3. There
was no record of the acreage filled by 492 of the Philadelphia
District's 789 recorded fills. Id. In all, of the 39,227 NWP 26 permit
authorizations recorded on the RAMS database since 1988, only 14,468,
37%; had valid acreage figures recorded with them. Environmental
Working Group, Nationwide Permitting Summary for 1988-1996 (1996)
(attached as Exhibit 5).
Ultimately, the RAMS database allows us to make some estimates
regarding the impacts of NWP .26. It falls far short, however, of any
kind of comprehensive ``monitoring'' of impacts and fails to provide
the information the Corps will need to determine that fills authorized
under NWP 26 are having minimal individual and cumulative effects on
the environment. On the whole, the Corps' response to NWF's FOIA
request suggests that the Corps is approaching its appointed task of
evaluation with less than good faith.
2. NWP 26 Authorizes Activities that Are Not Similar in
Nature
A general permit can only be issued for categories of discharges
that are similar in nature. 33 U.S.C. Sec. 1344(e). This similarity
must exist for both the nature and impact of the activity. 40 CFR
Sec. 230.10(a)(1). In fact, the Corps must justify a general permit
with a written evaluation of the activities to be authorized, including
an explanation of ``why they are sufficiently similar in nature and in
environmental impact to warrant regulation under a single general
permit.'' 40 CFR Sec. 230.7(b)(2).
In enacting the ``similar in nature'' requirement for general
permits, Congress intended to limit the Corps to issuing permits for
activities for which it could accurately predict the environmental
impacts. General permits were supposed to be a narrowly circumscribed
exception to the normal rule that dischargers obtain individual section
404 permits. The exception applies only when the adverse impacts from a
specific type of fill activity are minimal. The similar activities
requirement provides assurance that those discharges authorized by
general permit will be frilly anticipated and their impacts accurately
assessed. See generally H.R. Conf. Rep. No. 830, 94th Cong., 1st Sess.
(1977), reprinted in 1977 U.S.C.C.A.N. 4424, 4475.
NWP 26 straightforwardly authorizes ``discharges of dredged or fill
material into headwaters and isolated waters.'' Since the Corps' duty
is to regulate the discharge of dredged or fill material, NWP 26
encompasses the entire realm of activities Congress charged the Corps
with regulating. Corps records indicate that a wide variety of
activities have indeed been authorized under the permit, including:
bridge construction, darn construction, golf course construction, bank
stabilization, placement of riprap, placement of culverts, road
construction, road widening, sports field construction, Wal-Mart
construction, drainage of wetlands for hay production, the dumping of
tires, sawdust, wood debris, concrete, tires, and vegetable matter into
wetlands, stock pond construction, trout pond construction, conversion
of forested wetlands to faring, residential subdivision construction,
townhouse complex construction, mobile home construction, juvenile
detention home construction, service station construction, septic tank
drain field creation, sand mining, gravel mining, placer mining, fill
for stream crossing for cattle, drilling of exploration wells, railroad
spur line construction, and chicken composter construction. See Exhibit
3. In its preliminary decision document, the Corps notes that
``[b]ecause NWPs authorize activities on a nationwide basis, it is
difficult to predict all of the indirect impacts that may be associated
with each individual action.'' This problem becomes far more acute when
there are no limitations on the types of activities that are authorized
under the permit Neither the Corps, the resource agencies, nor the
concerned public can predict the nature and impacts, particularly the
secondary impacts, of the limitless categories of fill authorized by
NWP 26.
The geographical limitation on fills authorized under NWP 26 to
headwaters and isolated wetlands is not a substitute for a limitation
on the nature of the activities authorized. Legally, limiting fill to a
specific type of wetlands does not address the ``nature'' of the
categories of fill authorized. Scientifically, limiting fill to
headwaters and isolated waters as a method of limiting the impacts of
the fill is unjustified. A 1995 National Academy of Sciences' National
Research Council Report on the scientific basis for the
characterization of wetlands found that ``[t]he scientific basis for
policies that attribute less importance to headwater areas and isolated
wetlands than to other wetlands is weak.'' ``Many functions of wetlands
can be independent of isolation or adjacency * * * [and] headwaters
affect water quality downstream and perform many of the other functions
of wetlands.'' National Research Council, Wetlands: Characteristics and
Boundaries (1995), p. 138 (attached as part of Exhibit 15). NWP 26
violates the ``similar nature'' requirement of section 404(e).
3. NWP 26 Authorizes Activities that Have More than Minimal
Individual and Cumulative Effects on the
Environment
(a) Individual Impacts
There is little debate over the general values of wetlands and the
importance of wetlands to the environment. Corps regulations recognize
wetlands as special aquatic sites and state that ``[m]ost wetlands
constitute a productive and valuable public resource, the unnecessary
alteration or destruction of which should be discouraged as contrary to
the public interest,'' 33 CFR Sec. 320.4(b)(1). As noted above, there
is no scientific basis for differentiating headwater areas and isolated
waters from other wetlands on the basis of wetlands value.
Indeed, there is ample evidence of the value of vernal ponds,
prairie potholes and playa lakes--all examples of isolated wetlands.
The isolated groundwater wetlands of the Cimarron Terrace in
Northcentral Oklahoma provide habitat for migratory waterfowl and some
in mammals, and protect groundwater by filtering and detoxifying excess
nutrients and organic matter resulting from feedlot operations and
local heavy reliance upon fertilizers. Thomas J. Naylor, Nanette E.
Erickson, Renn Tumlison, J. Allen Ratzlaff, and Kurt D. Cunningham,
Groundwater Wetlands of the Cimarron Terrace Northcentral Oklahoma,
June 1, 1984 (attached as part of Exhibit 15).
The Southern Great Plains playa region sustains up to 1 million
overwintering waterfowl a year. Fish and Wildlife Service, Playa
Wetlands and Wildlife on the Southern Great Plains: A Characterization
of Habitats, September, 1983 (attached as part of Exhibit 15). The
playa lakes are the second most important habitat fob winter waterfowl
in the Central Flyway--exceeded only by the Gulf Coast--and provide
valuable watering, roosting, and foraging sites. Id. at 85. Prairie
potholes recharge groundwater and help maintain high water tables,
provide abundant forage for livestock, and are critical to the
maintenance of continental waterfowl populations. They also provide
habitat for furbearers, resident game species, and many species of non-
game wildlife, and store runoff water, thus serving as potential
floodwater storage reserves. Fish and Wildlife Service, Glaciated
Prairie Wetland Functions and Values: A Synthesis of the Literature
(1988). See also Wetland Values in Prairie Pothole Region of North
America (1982) (presented at the Great Plains Agricultural Council,
North Platte, Nebraska); Daniel E. Hubbard & Raymond L. Linder et al,
Spring Runoff Retention in Prairie Pothole Wetlands, Vol. 41, No. 2
Journal of Soil and Water Conservation 122-125 (March-April 1986);
National Audubon Society, Small and Farmed Wetlands: Oases for Wildlife
(1996). These documents are all attached as part of Exhibit 15.
Small, isolated wetlands in the Northeast play an important role in
reducing isolation among patches of wetlands habitat, therefore
decreasing extinction rates of megapopulations of wetlands organism
such as turtles and small birds. James P. Gibbs, Importance of Small
Wetlands for the Persistence of Local Populations of Wetland-Associated
Animals, Vol. 13, No. 1, Wetlands 25-31 (1993) (attached as part of
Exhibit 15). Northeastern vernal pools provide critical breeding
habitat for wood frogs and mole salamanders, including the rare Blue-
spotted, Jefferson, and Marbled Salamanders. Steven M. Roble, Ph.D.,
Life in Fleeting Waters, Massachusetts Wildlife 22-28 (attached as part
of Exhibit 15). California vernal pools provide habitat for several
specialized and rare plants and animals. U.S. Fish and Wildlife
Service, Wetland Losses Within Northern California from Projects
Authorized under Na-
tionwide Permit No. 26. See also Susan Wynn, Southern California Vernal
Pools and Species (1993); Native Bee Pollinators of Vernal Pool Plants,
Vol. 23, No. 2 Massachusetts Wildlife 22-28 (Spring 1989) (attached as
part of Exhibit 15).
Headwater systems include alpine tundra, bogs, some Carolina bays,
fens, nonalluvial swamps, palm oases, pocosins, sedge meadows and
spring seeps. These systems provide a permanent or seasonal source of
water within the landscape, typically creating higher plant biomass.
They maximize wildlife diversity, provide a greater diversity of
microhabitats, and are important movement corridors for fish and
wildlife. They also provide water quality functions and export detritus
to downstream systems. R. Wilson Laney, Preliminary Assessment of the
Cumulative Effect of Nationwide Permit 26 on Headwater and Isolated
Wetlands and Deepwater Area and Functions, and Policy Implications
(1990). Attached as Exhibit 6.
In short, isolated wetlands and headwaters are often ecologically
valuable. The destruction of \1/3\, 1, 3, 5, or 10 acres of such
wetlands can and has had more than a minimal individual effect on the
environment. For instance, one California project authorized under NWP
26 eliminated over 500 vernal pools, causing what the U.S. Fish and
Wildlife Service termed ``tremendous adverse impacts on wetlands.''
Wetlands Losses Within Northern California.
The effects of the direct fills of headwaters and isolated wetlands
are multiplied by the secondary impacts of those fills. Secondary
impacts are unpredictable at the best of times, but particularly when
associated with the limitless categories of activities authorized under
NWP 26. The Corps' NWP 26 records provide no information on the
secondary effects of NWP 26 fills.
(b) Cumulative Impacts
Determining the precise cumulative effect of NWP 26 on the
environment is difficult due to the structure of the permit. Under NWP
26, a PDN is not required for fills under 1 acre, so the Corps is
unable to keep track of all such fills. However, the Corps estimates
that 50,000 projects authorized under general permits were conducted
without notice to the Corps in 1995 alone, suggesting that a great
number of NWP 26 fills are taking place without the Corps' knowledge.
Attached as Exhibit 7.
The Corps' record-keeping also makes determining cumulative effects
difficult. Twenty-eight of the thirty-six Corps Districts are now using
the RAMS database to attempt to track wetlands fills authorized under
section 404. However, as noted above, much of the relevant data for
many of the PDNs have not been entered into the Corps' RAMS database.
The Districts that do not use the RAMS system apparently rely on their
own database or their permit files to determine the cumulative impacts
of the permits. Only four of these Districts had responded to NWF's
March FOIA request at the time of the submission of these comments.
Despite these difficulties, some general estimates of the direct
acreage impacts of fills authorized under NWP 26 can be made. Since
1988, the Corps has recorded the authorization of 16,464.9 acres of
fill under NWP 26 in its RAMS database. Personal Communication with
Clark Williams, Environmental Working Group. The Environmental Working
Group estimates that the direct cumulative impact authorized under NWP
26 by the Corps' Districts which have used the RAMS system is 32,405.5
acres. Environmental Working Group, NWP 26 Permitting Summary for 1988-
1996 (1996). This figure is extremely conservative. It does not include
secondary impacts of fills or the acreage authorized by the Districts
that are not using the RAMS database. Even more importantly, it does
not include fills of under 1 acre that were not reported to the Corps.
It is almost certain that the loss of 32,405.5 acres under NWP 26
has had more than a minimal cumulative impact on the environment. The
few studies that have been done of NWP 26 impacts in local areas
support this conclusion. In California, the U.S. Fish and Wildlife
Service found that over 700 acres of wetlands were filled under NWP 26
within the work area of the Sacramento field in six years. The Service
concluded that ``from a cumulative loss perspective, the loss of over
700 acres is significant.'' Wetland Losses Within Northern California
from Projects Authorized under Nationwide Permit No. 26. Similar
studies of impacts in North Carolina and a portion of Colorado reached
similar conclusions. Preliminary Assessment of the Cumulative Effect of
Nationwide Permit 26 On Headwater and Isolated Wetlands and Deepwater
Area and Functions and Policy Implications; U.S. Fish and Wildlife
Service, Section 404 and Wetland Alterations in the Platte River Basin
of Colorado (1992). Attached as Exhibit 8.
Given these studies and the evidence demonstrating that headwaters
and isolated wetlands perform valuable functions including providing
important wildlife habitat, flood prevention, groundwater recharge, and
water quality enhancement, the loss, at a bare minimum, of 32,305 acres
of wetlands over the last eight years must be considered extremely
significant. Certainly, the Corps' records and database provide no
evidence that would support a determination that the environmental
effects of NWP 26 are cumulatively minimal.
4. Proposed Changes in the Acreage Caps of NWP 26
The Corps has requested comments on its proposal to revise NWP 26
to only authorize fills of up to 5 acres, with a PDN required for all
fills over \1/2\ acre, or to only authorize fills of up to 3 acres,
with a PDN required for all fills over \1/3\ acre.
These changes will not significantly alter the impacts of NWP 26. A
PDN provides the opportunity for better record-keeping, but it does not
provide the environmental safeguards of the individual permitting
program or guarantee the elimination of projects that will have more
than a minimal individual effect on the environment.
According to the Corps' RAMS database, only 6.6% of the NWP 26
fills the Corps is informed of are for more than 3 acres, and account
for only 18% of the acreage filled under the permit. Environmental
Working Group Facsimile to Jim Adams, August 26, 1996 (attached as
Exhibit 9). Once again, it must be emphasized that these figures do not
include the acreage filled by projects of less than 1 acre of which the
Corps is not aware. Thus, the elimination of fills of over 3 acres from
NWP 26 will not eliminate the permit's more than minimal cumulative
effect on wetlands.
5. Endangered Species Act
NWF has discussed the Nationwide permit program's failure to comply
with the Endangered Species Act (ESA) elsewhere in these comments.
Headwaters and isolated wetlands can and do support rare, threatened
and endangered species, and a failure to comply with the ESA may result
in the loss of species. Wetland Losses Within Northern California from
Projects Authorized under Nationwide Permit No. 26: Life in Fleeting
Waters; Southern California Vernal Pools and Species; Native Bee
Pollinators of Vernal Pool Plants.
6. The Preliminary Decision Document's Analysis of NWP 26
The Corps' Preliminary Decision Document for NWP 26 is entirely
inadequate as an analysis of the permit's compliance with 404(e), the
404(b)(1) guidelines and as the environmental analysis required by
NEPA.\5\ The few portions of the document's discussion that are not
boilerplate consist of bland assurances that the permit will have only
minimal environmental effects. The Corps does not even bother to
estimate the acreage loss of wetlands due to NWP 26, and therefore
provides no discussion of how it has reasonably determined that the
impact of such a loss is minimal.
---------------------------------------------------------------------------
\5\ See the general discussion of nationwides above for more on the
Corps' inadequate analysis of the permit's compliance with the
404(b)(1) Guidelines and with NEPA.
---------------------------------------------------------------------------
The discussion of the characteristics of the aquatic ecosystem is
particularly disappointing. It ignores many of the functions and values
of isolated wetlands and headwaters, such as their habitat value and
role in groundwater recharge, that NWF has detailed above in the
individual impacts section of the NWP 26 comments. As the Corps has
limited resource agency participation in the nationwide permitting
program as unnecessary, the Corps has emphasized its own knowledge of
wetlands. Surely, then, a discussion which includes the actual values
of the wetlands threatened by NWP 26 is within the realm of the Corps'
expertise. Although the decision document offers no details, the Corps
appears to at least partially depend upon the conditions attached to
NWP 26 to prevent the permit from authorizing fills with significant
individual and cumulative impacts. The Corps has disclosed no
information concerning the effectiveness of current conditions--whether
applicants are following them or whether, when followed, they have
reduced impacts to a minimal level--to justify this reliance. Adding
conditions that will not be enforced or obeyed to a permit will not
reduce the impacts of fills authorized by that permit to a minimal
level. The Corps does not have enough information to make a
determination that conditions will reduce the impacts of fills
authorized under NWP 26 to minimal.
The Corps also suggests that NWP 26 impacts will be minimal because
the permit will be regionally conditioned ``to reflect the unique
environmental conditions within each state or region.'' The Corps
cannot determine that a nationwide permit will have minimal individual
and cumulative effects on the environment on the basis of a speculative
regional conditioning process. If the Corps wishes to use regional
conditions as a basis for a determination that NWP 26 will have minimal
individual and cumulative effects, it must first determine what those
regional conditions will be.
Ultimately, the embarrassing lack of analysis in the preliminary
decision document emphasizes the lack of information available to the
Corps on NWP 26. The Corps' failure to effectively monitor the NWP 26
program and the effects of fills under NWP 26 force it to rely on
broad, unsupported statements about NWP 26 and the entire nationwide
program to justify a determination that the permit will have no more
than minimal effects on the environment. The information that is
available on the impacts of NWP 26 clearly demonstrates that the permit
will have more than minimal individual and cumulative effects on the
environment, and a determination by the Corps that it will not would be
arbitrary and capricious.
Recommendation: The Corps should not reissue NWP 26.
NWP 27 Wetlands and Riparian Restoration and Creation Activities
NWP 27 currently authorizes wetland and riparian restoration and
creation activities under federal programs managed by USFWS and the
Natural Resource Conservation Service (NRCS). The Corps is proposing to
modify NWP 27 to apply to all restoration projects on federal lands,
and has requested comments on whether NWP 27 should retain its current
five-year time limit; whether it should apply to projects on nonfederal
lands; and whether it should include enhancement as an option.
NWF opposes the unrestricted extension of NWP 27 to private lands.
Restoration programs under USFWS and NRCS supervision at least provide
some prospect of oversight and monitoring; NWP 27 authorization for any
landowner who decided to ``build a wetland'' would become an
unmanageable loophole. For similar reasons, NWF opposes broadening NWP
27 to include ``enhancement.'' Given the current scarcity of Corps
monitoring to ensure compliance with the terms of nationwides, adding
``enhancement'' would issue an invitation for landowners to convert
wetland types back and forth with little scientific rationale and
damaging results. In no circumstances should NWP 27 apply to wetlands
restored or created in fulfillment of mitigation responsibilities or as
part of a mitigation bank.
Finally, NWF strenuously opposes eliminating the five year time
limit on the period during which a landowner can destroy a restored or
created wetland. The thrust of the CWA is to protect wetlands and their
functions present on the landscape. Extending NWP 27 indefinitely would
create a class of exempt wetlands that could never again be protected
by Sec. 404. For the same reasons, NWF opposes expanding NWP 27 to
cover wetlands created during mine reclamation; folding those wetlands
in under NWP 27 is particularly inappropriate given that those wetlands
are brought into being as part of a reclamation plan, to offset the
loss of natural wetlands that where protected under CWA Sec. 404.
Nationwide Permit 29; Single Family Housing NWP
Nationwide Permit 29 (NWP 29) provides a blanket authorization,
subject to certain conditions, to discharge dredged or fill material in
up to one-half acre of non-tidal waters of the United States for the
purpose of constructing or expanding single-family residences and
``attendant features'' such as garages, driveways, septic systems,
landscaping, wading pools, and tennis courts. The permit was published
on July 27, 1995, and became effective on September 25, 1995. The Corps
is now proposing to reissue NWP 29 without change.
NWF opposed NWP 29 when it was issued last year. The permit's legal
defects are described in our 60-day notice of intent to sue, dated
March 5, 1996, and in the complaint filed in U.S. District Court,
District of Alaska, on July 15, 1996. The two documents are attached as
Exhibits 10 and 11, respectively. NWF objects to the reissuance of NWP
29 for the same reasons it opposed the permit when it was first issued.
NWF's opposition to NWP 29 also stemmed from the lack of public
support or public need for an expansive residential fill permit.
Although the Corps suggested it was satisfying an urgent demand, the
public itself generally opposed the permit's issuance. Sixty-seven
percent of those people commenting on NWP 29 opposed its issuance,
while only twenty-eight percent fully supported it. Commentors from the
public sector, many with professional wetlands expertise,
overwhelmingly opposed NWP 29. Seventy-one government commentors from
thirty states opposed the permit while only six government commentors
supported it.
NWF urges the Corps to carefully consider these public comments in
deciding whether to reissue NWP 29. In addition to demonstrating
widespread opposition to the permit, many of the letters contain
detailed substantive comments on the one-half acre threshold, the value
of smaller wetlands, the potential individual and cumulative impacts,
enforcement and procedural problems, ``attendant features,'' and
endangered species concerns. Relevant excerpts are attached as Exhibit
12. The comment letters are especially important because many people
who commented on NWP 29 when it was first proposed may choose not to
write again, less than a year later, on an identical proposal. We have
therefore attached copies of all public comments submitted in response
to the Corps' notice of March 23, 1995, as Exhibit 13.
The general public was not alone in opposing NWP 29. NWF used the
Freedom of Information Act to obtain records concerning the permit from
the Corps' district offices. Of 56 comment letters written by the
Department of Interior, Fish and Wildlife Service, National Park
Service, National Marine Fisheries Service, and Environmental
Protection Agency, all but four expressed concern with the proposal to
issue NWP 29. Most of the agency commentors opposed the permit stating
it would cause more than minimal cumulative environmental impacts. This
opinion was frequently shared by the Corps' own staffs. In fact, the
large majority of the 28 comment letters and memoranda prepared by
Corps personnel expressed concern that NWP 29 was unnecessary, illegal,
or would have unacceptable environmental consequences. Copies of
comment letters from the federal resource agencies and the Corps are
attached as Exhibit 14.
In the public notice, the Corps invited comment on the impacts of
NWP 29. We have responded to this request in two ways. First, we have
collected studies, articles, and other papers on the functions and
values of small wetlands. These documents indicate that small wetlands
are not inherently unimportant, and that we cannot assume destruction
of small wetlands will necessarily have minimal impacts on the
environment. Second, we looked at several fills actually authorized by
NWP 29. These examples show that even the smallest of fills can have
important adverse effects.
We have attached as Exhibit 15 the following documents describing
the functions and values of small wetlands: National Research Council,
Wetlands: Characteristics and Boundaries (1995); James P. Gibbs,
Importance of Small Wetlands for the Persistence of Local Populations
of Wetland-Associated Animals, Vol. 13, No. 1 Wetlands 25-31 (1993);
Ann Robinson, Small and Seasonal Does not Mean Insignificant: Why It's
Worth Standing up for Small Wetlands, Journal of Soil and Water
Conservation 586-590 (November-December 1995); Susan Wynn, Southern
California Vernal Pools and Species (1993); Fish and Wildlife Service
Briefing Statement, Importance of Small, Shallow Wetlands; Fish and
Wildlife Service Fact Sheet, Temporarily Flooded Wetlands; Fish and
Wildlife Service Fact Sheet, Prairie Wetlands Less Than one Quarter
Acre in Size; Fish and Wildlife Service Memorandum and Attachments, Use
of Shallow Wetlands by Breeding Waterfowl; Memorandum on the Value of
Small Wetlands From Billy Teels, Co-Leader, National Wetlands Team, to
Doug Williams, Legislative Specialist, Natural Resources Conservation
Service; Memorandum From Bill Wilen, National Coordinator, National
Wetlands Inventory, to Chief, Fish and Wildlife Service Ecological
Services (July 12, 1985); Letter From Rollin Sparrowe, President of
Wildlife Management Institute, to Wetlands Stakeholders (May 4, 1995);
Wildlife Management Institute Fact Sheet, Effects on Ducks and Duck
Hunting of Removing Federal Protection of Small Wetlands; Robbin W.
Thorp & Joan M. Leong, Native Bee Pollinators of Vernal Pool Plants,
Vol. 23, No. 2 Fremontia 3-7; Steven M. Roble, Life in Fleeting Waters,
Massachusetts Wildlife 22-28 (Spring 1989); W.G. Crumpton et al.,
Wetlands and Streams as off-Site Sinks for Agricultural Chemicals,
Clean Water-Clean Environment-21st Century, Volume I: Pesticides 49-52
(1995); Taylor A. De Laney, Benefits to Downstream Flood Attenuation
and Water Quality as a Result of Constructed Wetlands in Agricultural
Landscapes, Journal of Soil and Water Conservation 620-626 (November-
December 1995); E.A. Colburn, Massachusetts Audubon Society, Fact Sheet
on Vernal Pools and the Clean Water Act (1993); Memorandum and
Attachments from Ann Jennings, Virginia Field Office, Fish and Wildlife
Service, to Lauri Zicari, Ecological Services, Fish and Wildlife
Service (June 23, 1995); Leo P. Kenney, Wicked Big Puddles: A Guide to
the Study and Certification of Vernal Pools (1995); Raymond L. Linder &
Daniel E. Hubbard, Wetland Values in Prairie Pothole Region of North
America (1982) (presented at the Great Plains Agricultural Council,
North Platte, Nebraska); Raymond L. Linder et al., Wetlands and
Agriculture (1985) (presented at the Technologies to Benefit
Agriculture workshop); Daniel E. Hubbard & Raymond L. Linder, Spring
Runoff Retention in Prairie Pothole Wetlands, Vol. 41, No. 2 Journal of
Soil and Water Conservation 122-125 (March-April 1986); Fish and
Wildlife Service, Glaciated Prairie Wetland Functions and Values: A
Synthesis of the Literature (1988); National Audubon Society, Small and
Farmed Wetlands: Oases for Wildlife (1996); Fish and Wildlife Service,
Wetlands of the United States: Current Status and Recent Trends (1984);
Fish and Wildlife Service & Environmental Protection Agency, Wetlands
Values and Management (1981); Thomas J. Taylor et al., Groundwater
Wetlands of the Cimarron Terrace, Northcentral Oklahoma (1984); Fish
and Wildlife Service, Playa Wetlands and Wildlife on the Southern Great
Plains: A Characterization of Habitat (1983); Fish and Wildlife
Service, Playa Lakes Symposium Proceedings (1981). These documents
demonstrate that small wetlands are often extremely valuable from an
environmental and societal standpoint. In particular, small wet-
lands provide water quality enhancement, flood control, and
biodiversity and wildlife habitat.
The large environmental effects of filling small wetlands are
easily seen in the discharges already authorized by NWP 29. For
instance, the Corps has authorized the filling of a small forested
wetland adjacent to Mullett Lake in Cheboygan County, Michigan (File
Number 95-030-010-0B). Mullett Lake is a world-class aquatic resource.
It has excellent water quality, is an important fishery, and is
critical to the resort and tourism industries of Cheboygan County and
the State of Michigan. Wetlands surrounding Mullett Lake, while often
small, act as a natural filtration system that removes nutrients and
sediment, and maintains clean, swimmable waters. In addition, these
wetlands have aesthetic values that are enjoyed by residents and
visitors to the lake, and provide habitat for birds and other wildlife.
The destruction of small wetlands adjacent to Mullett Lake, such as
that authorized by NWP 29, has negatively affected water quality,
eliminated wildlife habitat, contributed to soil erosion, and has
adversely affected the natural beauty of the Mullett Lake area.
Fills authorized by NWP 29 are also causing the fragmentation and
isolation of historically productive wetlands complexes. The Corps has
granted approval for the construction of several residences and their
``attendant features'' in the Fleming Plantation subdivision in Crown
Point, Louisiana. The wetlands at two sites are hydrologically
connected to wetlands adjacent to Bayou Barataria and Jean Lafitte
National Historical Park and Preserve. Similar piecemeal destruction of
wetlands complexes under NWP 29 has occurred in the nearby Bayou
Bonfouca Estates subdivision, Oak Knoll Estates subdivision, Pineview
Heights Farms subdivision, Bayou Liberty Estates subdivision, Red Gap
Acres subdivision, Green Woods subdivision, Holiday Acres subdivision,
Southwind subdivision, and Acadian Estates subdivision. Although the
surface area of the individual fills is relatively small, the
cumulative effects of these fills is significant. Moreover,
fragmentation and exposure to development have degraded the remaining
wetlands complexes and diminished their ability to function
productively.
Recommendation: The Corps should not reissue NWP 29.
NWP 32 Completed Enforcement Actions
NWP 32 currently substitutes for after-the-fact (ATF) individual
authorization of an illegal fill that remains in place as part of a
court-approved settlement or court order. The Corps reissuance proposal
expands NWP 32 to cover administrative settlements between the Corps
and violators of Sec. 404.
NWP 32 in its current form authorizes dissimilar activities with
any level of impacts and is therefore illegal. The Corps' reissuance
proposal is even worse, expanding NWP 32 to cover situations where the
only public notice of a violation is the ATF permit application that
NWP 32 eliminates. The Corps should not reissue NWP 32, and should
certainly not expand it.
Compliance with Sec. 404(e). NWP 32 flatly violates both the
``similar in nature'' and the ``minimal impact'' standards of CWA
Sec. 404(e). Projects authorized under NWP 32 can be of any type--and,
so long as they are part of a court-approved settlement, of any size.
The proposed expansion of NWP 32 would cover projects in nontidal
wetlands with up to 5 acres of impacts and projects in tidal wetlands
with up to one acre of impacts. This can amount to more than minimal
impacts, and will certainly accrete to more than minimal cumulative
impacts.
Compliance with NEPA and the 404(b)(1) Guidelines. Like several
other illegal nationwides, NWP 32 authorizes not a category of
activities, but a procedure for exempting activities from individual
review, with the nature of those activities to be worked out later. In
the case of NWP 32, that ``later'' is the time when a violation of
Sec. 404 is settled. As in the case of NWPs 21, 23, and proposed NWPs B
and D, the decision document for NWP 32 faces the twin hurdles of
trying to evaluate the potential impacts of projects about which
nothing can be known until well after the nationwide is issued, and of
trying to demonstrate that these unknown impacts will not violate the
404(b)(1) Guidelines. Inevitably, it fails.
The futility of trying to estimate the impacts of a nationwide
whose terms are not defined reveals itself it the Corps' assessment of
the extent and permanence of the impacts of a project under NWP 32:
``the nature and scope of the work authorized by the NWP will most
likely restrict the extent of the beneficial and detrimental effects to
the area immediately surrounding the activity.'' The Corps cannot
possibly know this to be true, particularly when the Corps has proposed
to let any administrative settlement with up to five acres of inland
wetlands impacts fall under NWP 32.
The Corps' boilerplate assessment becomes particularly inapposite
as the decision document tries to explain why NWP 32, which as a
nationwide does not require any consideration of alternatives, is in
the public interest: ``most situations in which there is an unresolved
conflict as to resource use, arise when environmentally sensitive areas
are involved (e.g. special aquatic sites, including wetlands) or there
are competing uses of a resource (e.g. use of a waterway for commercial
versus recreational purposes). The nature and scope of the proposed
action as well as the terms and conditions of the NWP minimize the
likelihood of such a conflict.'' In fact, however, the Corps exercises
its prosecutorial discretion freely to avoid punishing Sec. 404
violators, and is unlikely to be enforcing unless an environmentally
sensitive area is involved. The rationale for why consideration of
alternatives is not necessary thus falls to pieces.
Other comments. A troubling consequence of the proposed expansion
of NWP 32 is the loss of public notice for the majority of projects
that currently receive ATF authorizations by the Corps. In certain
regions of the country, that is no small number. A recent study by the
National Audubon Society's Great Lakes Regional Office found that of
the 32 individual Corps permits issued in Ohio between 1990 and 1995,
12, or 37.5%, were ATF permits (Julie Sibbing, The Impact of Individual
Sec. 404 Permits on Ohio Wetlands, 1990-1995). Clearly, in parts of the
Nation, replacing the ATF permits with NWP 32 could cut the public off
from a significant chunk of the small set of projects that currently
receive individual review.
The lack of public notice for administrative settlements authorized
under NWP 32 is particularly disturbing in the light of the great
latitude NWP 32 provides for the Corps to agree to poor settlements.
Beyond the acreage limits for administrative settlements, the decision
document notes only that ``the non-judicial settlement agreement must
provide for environmental benefits, to an equal or greater degree, than
the environmental detriments caused by the unauthorized activity.''
That standard will melt far too easily under political pressure to
allow violators to escape with slap on the hand settlements--
settlements that the public has no way of tracking because they are
never placed on public notice.
Recommendation: The Corps should not reissue NWP 32 and should not
expand it.
NWP 34 Discharges Associated with Cranberry Bogs
NWP 34 allows the destruction of up to 10 acres of wetlands per
cranberry grower during each life of the permit (five years). Wetlands
may be destroyed under the nationwide for conversions off natural
wetlands into cranberry bogs, dikes, and water control structures. NWP
34 does require a PCN to the Corps, who in turn notifies the other
federal resource agencies. The Corps' RAMS database records 45 uses of
NWP 34 between 1988 and June 1996; the 34 of these with recorded
acreage impacts averaged over 3 acres of impacts per authorization.
NWP 34 is a special interest exemption from standard permitting
requirements for a powerful industry that has upland alternatives for
its activities. NWP 34 violates CWA Sec. 404(e) and the 404(b)(1)
Guidelines, and has been rejected by most cranberry-producing states
that have had the chance. The Corps should not reissue NWP 34.
Compliance with CWA Sec. 404(e). To convert a natural wetland to a
cranberry bed, a grower must completely strip the bed's natural
vegetation, build dikes and water control structures around the beds so
it can be flooded, and lay down a one to two foot thick carpet of sand
across the bottom of the bed, in which the cranberry bushes are
planted. An average of more than 3 acres of this sort of impact per
authorization suggests that NWP 34 consistently transgresses the
minimal impact standards of CWA Sec. 404(e).
Disturbingly, the Corps has dismissed the cumulative impacts of NWP
34 with the explanation that the nationwide requires growers to protect
15 acres of natural wetlands as reservoir acres for every one acre they
convert. However, during the growing season, water from the reservoir
acres is used to flood the cranberries (for no more than 24 or 48 hours
at a time) to prevent or control disease. This means the water level in
the reservoir acres fluctuates substantially and unnaturally,
disturbing those ecosystems too.
Even if the reservoirs were not periodically drained in the process
of cranberry cultivation, the requirement of an offset would not render
NWP 34's legal. NWP 34 violates two cardinal principles of the CWA and
the Sec. 404 program: first by allowing cranberry growers to ``buy
down'' impacts of conversion with compensatory mitigation; and second
by allowing that compensatory mitigation to take the form of
preservation.
404(b)(1) Guidelines and NEPA analysis. The Corps' decision
document on NWP 34 omits any discussion of most of the substantial
adverse impacts of conversion of natural wetlands to cranberry beds.
Even the few impacts the document does acknowledge, the permit does
nothing to constrain or address. Thus, NWP 34 violates EPA's nationwide
permit regulations and the standards of EPA's 404(b)(1) Guidelines.
Cranberry beds are so intensively managed that they are reduced to
biological wastelands, virtually bereft of any flora and fauna beyond
the cranberry vines themselves. In fact, because of the thick,
artificial layers of sand that underlay them, most cranberry beds do
not meet the regulatory definition of wetlands--even though naturally
occurring cranberries in the wild are indisputably a wetland plant.
Furthermore, the conversion of wetlands to cranberry production can
degrade water quality (adding sediments, nutrients, fertilizers, and
pesticides to downstream waters, sometimes in acutely toxic amounts);
harm fisheries (altering cold water fisheries and impeding migration of
anadromous fish); and reduce water quantity (by diverting flows from
rivers, streams, and wetlands). Each of these likely impacts of
cranberry conversions can significantly adversely affect the aquatic
environment.
One would never guess this from the decision document, which relies
upon cut and paste analysis to avoid grappling with any of the
characteristic impacts of cranberry conversions. For instance, the
document repeats the standard paragraphs on deposition of substrate and
the turbidity plume that results from layering substrate in water. But
the document does not deal at all with the effect of covering an entire
bed with at least a foot of sand. That is not a temporary plume, nor
does it leave a place for ``motile organisms'' to return to once the
bed is laid. This decision document is simply irrelevant to the
nationwide being proposed.
The decision document does acknowledge the changes in hydrology
(though not water quality or quantity) that result from conversion of
natural wetlands to cranberry beds. Specifically, the document notes
that cranberry conversions may stress drier-end wetlands vegetation and
may accelerate sedimentation. However, neither the document nor the
nationwide suggests that these impacts might be avoided or explains why
they do not violate the 404(b)(1) Guidelines.
Even on the basis of the limited analysis included in the decision
document, the Corps' determination that issuance of NWP 34 serves the
public interest is mystifying. The document states that ``the intended
benefits resulting from the use of the NWP is the production of
cranberries in wetlands areas.'' However, the destruction of natural
wetlands is no benefit. Nor does the document claim that we face a
choice between cranberries in wetlands and no cranberries at all.
Indeed, upland sites can be made into viable cranberry beds; a study by
the USFWS in Massachusetts found that between 1977 and 1986, over 66%
of new cranberry beds were built in uplands. At base, NWP 34 allows
unnecessary wetlands destruction for the production of a private
commercial crop. If that rationale can pass the public interest test,
few would not.
Recommendation: NWP 34 violates CWA Sec. 404(e); the 404(b)(1)
Guidelines; and the Corps' public interest test. It is illegal and
damaging to wetlands. Worse, NWP 34 represents precisely the kind of
buckling to special interest pressures that the public depends on the
federal agencies to resist. When NWP 34 was issued in 1991, the Corps
certainly did not buckle alone. But as the agency with the lead
responsibility for reissuing the nationwides, the Corps must find the
courage not to reissue NWP 34.
NWP 38 Cleanup of Hazardous and Toxic Waste
NWP 38 authorizes any activity directed at containing or removing
hazardous waste, so long as the activity has been approved by a
government agency with authority to regulate toxic and hazardous waste.
NWP 38 does require applicants to notify the District Engineer, and the
Corps provides notification to the resource agencies. The Corps is
proposing to reissue NWP 38 with an additional sentence ``clarifying''
that activities approved or required by EPA under Superfund do not
require a CWA Sec. 404 or RHA Sec. 10 permit.
NWP 38 illegally delegates the Corps' duty to protect wetlands from
unnecessary destruction to federal and state agencies with very
different missions. It also lacks any impact ceiling. It should not be
reissued. Further, the proposed exemption for EPA-approved activities
has no statutory basis in either the CWA or CERCLA. Even if NWP 38 is
reissued, the Corps' new ``clarification'' should not be added.
Compliance with CWA Sec. 404(e). NWP 38 displaces the individual
permit process for all activities approved or required by EPA (or,
apparently, state, or even local government agencies) as part of a
hazardous waste clean up or containment. As the decision document
notes, ``The description does not specify the nature of the activities
to which it might apply. * * * No limitations have been placed on the
volume of fill material, material to be dredged, or the site of
structures which shall be necessary for the completed activity.'' With
no limits on the activities it covers (save that they are related to
hazardous waste containment and cleanup) or their impacts, NWP 38
violates all three prongs of CWA Sec. 404(e).
Compliance with NEPA and the 404(b)(1) Guidelines. The decision
document repeats the Corps' standard boilerplate on the effects of
dredge and fill and makes no effort to evaluate the impacts of cleanup
or containment activities, so there is little here to comment on.
However, the boilerplate flatly contradicts the reality of NWP 38's
terms and implementation. For instance, the decision document takes
pains to include the rote caution that ``during construction small
quantities of oil and gas may be discharged into the watercourse from
construction equipment.'' One would think projects under NWP 38 present
the more serious threat of hazardous or toxic substances leaking into
waters of the United States; but the decision offers no analysis of
these potential impacts.
Likewise, the decision document blithely assures us that the
adverse impacts of containing hazardous waste are expected to be short-
term. Since most containment technologies have a predictable lifespan,
after which they fail, the decision document is simply wrong. A
decision document that will not consider specific activities likely to
be undertaken under the nationwide or their extended consequences
cannot satisfy NEPA.
In addition, the NWP 38 decision document falls far short
demonstrating that NWP 38 complies with the 404(b)(1) Guidelines. It
seems doubtful whether any document could, since NWP 38 leaves all the
standards for approval to EPA or state or local regulators, with only
the promise of the District Engineer's discretion to catch what these
agencies miss. Almost by definition, a Superfund or other hazardous
waste site poses a threat of significant degradation to the environment
and to any waters of the United States it abuts.
Other comments. The purpose behind NWP 38 is clearly to remove
perceived duplication between the work of agencies regulating cleanup
of hazardous waste sites and the Corps. But, while the Corps has duties
that overlap with these agencies, these agencies will usually not act
from the same standards as the Corps, and cannot replace the Corps. NWF
agrees that CWA Sec. 404 and RHA Sec. 10 must not become yet another
barrier thrown up by responsible parties to dodge responsibilities for
containment or cleanup. However, where a hazardous waste site involves
wetlands or other waters, the functions and values of those waters need
to be protected, and so the Corps must be involved. Rather than
abdicating responsibility under NWP 38, the Corps should coordinate
with appropriate federal, state, or local entities and conduct the
Sec. 404/Sec. 10 approval process concurrently with the development of
a containment or cleanup plan.
One note on the question of state and local governments: NWF 38
speaks only of ``activities * * * performed, ordered, or sponsored by a
government agency.'' Without more, this vague language would seem to
embrace any governmental authority, including regional, interstate,
state, and local entities. Most of these have no standards comparable
to the Corps' public interest test or EPA's 404(b)(1) Guidelines; there
is also no guarantee that these programs will provide public access or
judicial remedy. NWP 38 thus amounts to a loosely-drawn programmatic
permit that eliminates the public access and remedies available under
the individual Sec. 404 permit process and replaces them (perhaps) with
the discretion of District Engineers.
Recommendation: The Corps should not reissue NWP 38. To save time
and resources, and to ensure that wetlands functions and values are
protected but that CWA permit compliance does not become a barrier to
permit cleanup, the Corps should coordinate with other regulatory
entities and run its permit process concurrently with theirs. However,
the Corps must not process projects involving hazardous and toxic waste
under an abbreviated review that provides no notice or comment
opportunities to the public.
NWP 40 Construction of Farm Buildings in Farmed Wetlands
NWP 40 allows the destruction of up to 1 acre of farmed wetlands
for the construction of ``farm buildings''--more specifically, for
``foundations and building pads for buildings or agricultural related
structures necessary for farming activities.'' Although this covers a
wide range of possible projects, the Corps has no way to evaluate the
historic use of NWP 40 because the nationwide does not require that any
notification be provided to the Corps, much less the other federal
resource agencies.
NWP 40 is illegal and unnecessary and should not be reissued.
Compliance with 404(e). NWP 40's lack of any notification
requirement makes it impossible to evaluate the impacts to date of the
nationwide or to project its use into the future. As written, however,
NWP 40 authorizes both minimal individual and cumulative impacts. Many
farmed wetlands are small and isolated and provide vital habitat for
migratory birds. Others are riparian and provide critical water quality
benefits to watersheds downstream. A loss of up to one acre can easily
destroy these benefits, and can add up to staggering cumulative
impacts.
Perhaps of most concern, NWP 40 would allow the construction of
major industrial farm operations in farmed wetlands. The
``clarification'' proposed by the Corps as a part of the current
reissuance proposal merely confirms that NWP 40 authorizes ``animal
housing'' and ``production facilities'' in wetlands. That embraces
factory farms. To its discredit, NWP 40 permits unnecessary wetlands
destruction of wetlands even where there exist practicable alternative
sites for farm buildings. Beyond that, however, one can credibly argue
that factory farms should never be built in wetlands and other ``waters
of the United States,'' given the prospect of polluting surface and
groundwater supplies. Nonetheless, NWP 40 does allow factory farms in
wetlands, without alternatives analysis, without public notice, without
even any notice to the Corps. This violates the minimal (and
cumulative) impact standard of CWA Sec. 404(e).
404(b)(1) Guidelines and NEPA analysis. The Corps' decision
document on NWP 40 again illustrates the hazards of cut-and-paste
environmental assessment. The document argues that ``the notification
procedure will allow the District Engineer to ensure that adverse
environmental impacts of the proposed activity are minimal.'' As noted
above, NWP 40 has no notification procedure. In any event, a
notification procedure does not by itself constrain project impacts,
and would not cure NWP 40's basic illegality.
The decision document seems to argue that because few farmed
wetlands have natural vegetation, farmed wetlands destruction cannot be
ecologically significant. However, many farmed wetlands retain seed
banks of native plants for up to two decades so long as the wetlands
are not converted or built upon. Projects authorized under NWP 40 have
a significant potential to alter permanently the biological integrity
of farmed wetlands by destroying these seed banks, as well as whatever
vegetation is currently growing on the surface.
Moreover, farmed wetlands, even where denuded of native vegetation,
can still provide such critical wetland functions as groundwater
recharge, flood control, habitat for migratory birds and other
wildlife, and filtration of pesticides and fertilizers from
agricultural runoff. The analysis for NWP 40 fails to address the
impact on these values of building in farmed wetlands. As a result, the
NWP 40 analysis fails to satisfy NEPA requirements. More importantly,
NWP 40 violates the requirement of 40 CFR Sec. 230.7 that nationwide
and other general permits be shown to comply with the 404(b)(1)
Guidelines' prohibition of substantial adverse impacts to wetlands.
NWP 40 authorizes projects with dire effects on the human
environment also. Hog factory farms and other confined animal feeding
operations (CAFOs) are at best regarded by neighbors as highly
unaesthetic and a blight on the landscape. The Corps decision document
on NWP 40 flatly ignores the foul smell of large scale animal housing
operations in evaluating the human effects of the nationwide, thus
violating both NEPA and the 404(b)(1) Guidelines prohibition of
substantial adverse impacts on aesthetic and economic values.
The claim that NWP 40 may have a positive impact on the local
economy is unsupported. As with a number of the other nationwides, NWP
40 merely allows projects to go forward in farmed wetlands that would
not go forward under the individual permit program because practicable
alternatives exist. Because these projects could go forward in a nearby
location in the absence of the nationwide, their economic benefits
cannot be attributed to NWP 40. In any event, many of the projects
approvable under NWP 40--including the big factory farms--depress
nearby property values and slow residential growth, and can hardly be
said to have a positive effect on the local economy.
The Corps decision document makes the risible suggestion that ``the
ease of obtaining'' NWP 40 will lead applicants to design smaller
projects. Given that NWP 40 requires no reporting, and would appear to
involve no monitoring and no enforcement, it is hard to imagine what
incentive an applicant has to minimize the impacts of his construction
project in farmed wetlands in any way. Further, very few buildings use
as much as one acre of space, so the threshold of NWP 40, even if
enforced, would hardly create an incentive to squeeze down project
impacts.
Finally, the decision document remains entirely silent on the
threat posed to groundwater (and through groundwater to other surface
waters) by NWP 40. Farmed wetlands often exchange water with
groundwater tables. Building in farmed wetlands is a prime way to
disturb groundwater flows and contaminate them, particularly when the
buildings are animal housing or processing facilities. Corruption of
groundwater supplies, which half of our citizens depend upon for
drinking water, does not serve the public interest.
Recommendation: NWP 40 has no legitimate purpose, and appears as
great a sop to agricultural special interests as NWP 29 is to the
development community. NWP 40 authorizes a wide range of structures for
a wide range of purposes, with more than minimal individual and
cumulative impacts. It should not be reissued.
Proposed NWP B Swampbuster Minimal Effect Exemptions
It is unclear what Proposed NWP B would authorize, since the
reauthorization proposal fails to include any specific language. This
omission makes it utterly impossible for the Corps, the other federal
resource agencies, the states, or the public to evaluate the
prospective impacts of NWP B. The specifics of NWP B will apparently
not be determined until after new regulations are issued by the NRCS
later this fall.
NWP B proposes no specific nationwide, and neither it nor its
decision documents comply with any of the showings or procedures
required before a nationwide can be issued. Nonetheless, the vague idea
advanced in the description of NWP B of exempting whole categories of
agricultural activities from the CWA merely because NRCS has exempted
them from Swampbuster is pernicious and illegal, and should be
renounced, not embraced, by the Corps.
The theme of NWP B, of importing minimal effect and categorical
minimal effect exemptions from Swampbuster into the Sec. 404 program,
is merely the newest proposed slide on a long decline in the reach and
effectiveness of the Sec. 404 program as implemented on agricultural
lands. This decline follows a standard pattern: Swampbuster is
weakened; agribusiness interests complain that Swampbuster and CWA
Sec. 404 are inconsistent; seeking consistency the Administration
consents to weaken Sec. 404 to lower it to Swampbuster's level; then
agribusiness returns to Congress to seek further weakenings in
Swampbuster.
The step of lowering CWA Sec. 404 implementation to match
Swampbuster is illegal; it is also bad policy. From the time of its
inception in the 1985 Farm Bill, Swampbuster has had a different
statutory purpose, different jurisdiction, and different method of
operation than CWA Sec. 404. Swampbuster exists to prevent federal farm
subsidies from encouraging wetlands drainage; CWA exists to protect
wetlands and waters from activities that destroy them. Swampbuster's
jurisdiction extends only to farmed wetlands and to natural wetlands
that are threatened by conversion; CWA Sec. 404 applies to virtually
all surface waters in the United States. Finally, Swampbuster works by
classifying categories of land such farmed wetlands, prior converted
croplands, etc.; while CWA Sec. 404 regulates activities.
Inattention to the fundamental differences between these two
statutes has deeply injured the implementation of CWA Sec. 404 on
agricultural lands. The illegal importation of the prior converted
cropland exemption into the CWA Sec. 404 program by administrative fiat
in 1991 and 1993 is one example; proposed NWP B would become another.
The fact that NRCS exempts an activity from Swampbuster has no proper
bearing on whether that activity should receive highly abbreviated
review under the CWA. Where possible, consistency between statutes is
desirable, but never at the expense of the core purpose of the CWA.
Yet, proposed NWP B would strike at the heart of the CWA's
protections for waters and wetlands on agricultural lands. The 1996
Farm Bill instructs NRCS to set up procedures under which whole
categories of agricultural activities will be deemed to have minimal
effects and will be categorically exempt from Swampbuster. It is widely
anticipated that these categorical exemptions may (illegally) embrace
exemptions for categories of wetlands, such as wetlands that are farmed
at least six out of ten years. Even if the Swampbuster categorical
minimal effect exemptions remain limited to activities, however, NRCS
need not apply the 404(b)(1) Guidelines or the Corps public interest
test as it frames them. Nor must NRCS (or the state technical
committees to which it may delegate its authority) observe any of the
procedural requirements established in EPA's nationwide regulations.
There exists no guarantee under the 1996 Farm Bill that the NRCS'
exemptions will comply with any of the nationwide permit standards.
Moreover, the Corps lacks any authority to delegate to NRCS the
determination that activities should be eligible for nationwide rather
than individual review under CWA Sec. 404. The discretion of the DEs
will not suffice to vet Swampbuster exemptions. The only legal way the
Corps can bring categorical minimal effect exemptions into the
nationwide permit program is to propose a nationwide for each activity,
backed up with a decision document fully evaluating the expected
impacts on wetlands and waters, and demonstrating that the proposed
nationwide complies with CWA Sec. 404(e), the 404(b)(1) Guidelines, and
the other applicable CWA standards. Finally, the nationwide proposal
must be subject to full public notice and comment.
Beyond illegally delegating the Corps' authority to NRCS, proposed
NWP B would make the egregious mistake of excluding USFWS from Sec. 404
permitting decisions. The 1996 Farm Bill for the first time cut USFWS
out of the process of defining categorical minimal effects under
Swampbuster, even though USFWS employees have greater expertise to
speak to the wildlife impacts of wetland and water conversions, and to
evaluate mitigation proposed to offset these impacts, than do NRCS
personnel. By adopting NRCS' categorical minimal effect exemptions,
proposed NWP B would extend this exclusion of USFWS into the Sec. 404
program. That must not occur. USFWS must continue to review conversions
of Sec. 404 jurisdictional waters, and in all cases where these
conversions have more than minimal impacts under CWA standards, an
individual permit must be required.
Recommendation: Proposed NWP B functions as a one permit gallery of
the legal flaws of the worst of the rest of the nationwides. It
delegates the Corps' job to another agency. It authorizes exemption
procedures whose product will be determined later, rather than
categories of activities. It provides no cap on impacts. Its decision
document provides no specifics on likely impacts of projects authorized
under the nationwide. The Corps should decline to issue proposed NWP B
in any form.
Proposed NWP C Mining Operations
Proposed NWP C actually comprises two distinct nationwides. The
first exempts from individual Sec. 404 review sand and gravel mining
operations that were in business when the Tulloch Rule was issued in
1993, asserting the Corps and EPA's CWA jurisdiction over these and
other activities. The second part of NWP C would excuse from individual
permit review activities of ``recreational miners'' in wetlands and
other waters of the United States.
Both halves of proposed NWP C would violate CWA Sec. 404(e).
Proposed NWP C should not be issued.
Compliance with CWA Sec. 404(e). The NWP C proposal lacks any
specific provisions to guarantee minimal impacts. For part A, it is
difficult to see how any impact ceiling that would prevent more than
minimal impacts could fulfill the apparent purpose of the nationwide--
to continue to exempt from individual review sand and gravel operations
in business in August 1993. These businesses do not now have, and have
likely never had, minimal impacts. Issuing NWP C will either raise and
then dash their expectations, or will guarantee that the nationwide
authorizes more than minimal impacts.
If the Corps does intend to eventually go forward with this
nationwide, it will need to impose specific conditions to contain
impacts. The reissuance proposal currently leaves this up to the
District and Division Engineers: ``The District Engineers for specific
cases or the Division Engineers for geographic areas, will impose
quantity, location, timing, or other restrictions, as necessary, to
ensure that the effects are minimal.'' Written this way, NWP C does
little more than allow the Divisions and Districts to issue their own
regional general permits without going through any public notice and
comment or federal resource agency review. That violates CWA
Sec. 404(e), NEPA, the ESA, and the FWCA.
Part B of NWP C also violates CWA Sec. 404(e). ``Recreational
miners,'' although few in numbers, can wreak havoc on streams, rivers,
and other waters. Like Part A, Part B leaves all the specific
conditions to the DEs, but does require public notice. Since this would
seem to fully duplicate the process for proposing and issuing regional
general permits, proposing NWP C part B as a nationwide seems
unnecessary. In addition, NWF believes there is no way to condition the
use of motorized or mechanical equipment that will keep it from having
a more than minimal impact of jurisdictional waters. If NWP C part B is
issued at all, it should be limited to recreational activities with
hand-held tools, and it should explicitly forbid the use of motorized
or mechanical equipment, or explosives.
Compliance with NEPA and the 404(b)(1) Guidelines. The decision
document for NWP C fails to describe the impacts of the activities it
would authorize under either part with any specificity. Nor could it,
since the reissuance proposal places no constraints on the projects
that could be authorized under either part. Before the Corps can
legally issue NWP C in any form, it will need to prepare a much more
thorough description and analysis of what it is proposing, starting
virtually from scratch.
Other comments. The Corps' proposed NWP C, Part A, suggests that
because sand and gravel mining was not regulated before the 1993
Tulloch Rule, active mining should be allowed to continue with
``minimal regulation.'' NWF reminds the Corps that it granted the sand
and gravel industry a very generous grandfather provision in 1993 to
help the industry adjust to the rigors of individual permit review.
See, 58 Fed. Reg. 45027-45028, 45036 (August 25, 1993), codified at 33
CFR 323.2(d)(3)(iii). At the time, the Corps promised to consider
certain sand and gravel mining operations for nationwide permits. The
Corps has met its promise. But the Corps has only the authority to
approve those activities ``similar in nature'' with truly ``minimal
impacts.'' This proposed nationwide is too broad and too vague to meet
the requirements of CWA Sec. 404(e).
Recommendation: The Corps should not issue NWP C, Part A in any
form, and must not issue NWP C, part B in any form resembling that
proposed. In any event, the Corps will need to prepare a meaningful
impact analysis and submit that for review and comment by the public
and the federal resource agencies, before it can legally issue any part
of proposed NWP C.
Proposed NWP D Maintenance of Existing Flood Control Projects
Proposed NWP D would authorize the maintenance of existing flood
control facilities. This nationwide could have devastating impacts--
never even hinted at by the decision documents--on streambed life in
channelized streams. The reissuance proposal and the decision document
provide so little information about the projects and impacts that could
be approved under this nationwide that it is impossible for the Corps,
the federal resource agencies, or the public to comment meaningfully on
this proposal.
The Corps should not issue Proposed NWP D in its current form, and
in any event must repropose it with a detailed and meaningful
environmental assessment before it can issue it legally.
Compliance with CWA Sec. 404(e). Neither the reissuance proposal
nor the NWP D decision document provide enough information to identify
what sort of projects would be authorized by D, let alone how large the
individual and cumulative impacts of these projects would be. The
decision document estimates that NWP D would authorize about 5,000
projects each year, but does not explain how this estimate was derived.
In certain regions of the Nation, it seems clear that ``clearing of
flood channels,'' interpreted narrowly, would nonetheless have
significant individual and cumulative impacts. For example, many of the
streams in Southern California are channelized, with concrete walls but
dirt bottoms. Plants and some aquatic organisms live in the habitats on
the bottom of these streams and rivers; NWP D would appear to allow
their wholesale destruction.
On a much bigger scale, NWP D appears to authorize huge maintenance
dredging projects in America's largest rivers, as well, so long as the
dredging stays within channels that have been dredged before. The
individual Sec. 404 review process can often be the only opportunity
for public review and comment on these projects; NWP D seems to
eliminate that.
Compliance with NEPA and the 404(b)(1) Guidelines. The same lack of
specificity that makes it impossible to tell what proposed NWP D
actually authorizes also makes it impossible to assess the impacts of
these projects. If the Corps knows, its NWP D decision document sure
isn't telling: the decision document provides no estimate of how many
eligible flood control projects exist in around the Nation or what
maintenance of these involves.
The decision document advances one safeguard to avert the
unarticulated impacts of NWP D: notification of the Corps for projects
over an undefined size threshold or in sites that have been established
for at least five years. Notification, of course, cannot substitute for
individual Sec. 404 review, which involves the other federal resource
agencies and the public. But even if notification thresholds were
conditions on the permit, the decision document never explains how
these would prevent more than minimal impacts, let alone the
significant degradation of waters of the United States.
Other comments. The NWP D decision document includes the perplexing
statement that specifically, the purpose of the activity is to provide
small watercraft access to the waterway.'' Is this sentence merely an
escapee from the NWP 36 (boat ramps) decision document? It makes
particularly little sense here, since ``navigation'' is the one factor
the decision document's public interest review labels irrelevant to NWP
D.
Recommendation: Without better documentation and analysis of the
impacts of the projects that would be approved under proposed NWP D,
none of the Corps, the other federal resource agencies, or the public
can know that NWP D is legal, let alone wise. Moreover, unless this
analysis is completed and submitted for public review and comment, the
Corps cannot legally issue NWPD in any form.
vi. conclusion
Congress has authorized only narrowly drawn general permits. CWA
Sec. 404(e) limits nationwide and general permits to categories of
activities that are similar in nature and that can be properly assessed
and properly conditioned to ensure minimal impacts. The nationwides
must cover activities that are invariably and truly minimal in impact.
It is time for the Corps to accept its wetlands protection
responsibilities and abide by the mandate of Congress as expressed in
the Clean Water Act. The Corps should not reissue NWPs 7, 15, 17, 21,
23, 26, 29, 32, 34, 38, and 40; the Corps should not issue proposed
NWPs B, C and D. The Corps should revise and further condition NWPs 8,
12, 13, 14, and 33.
We appreciate the opportunity to comment on the nationwide
reissuance proposal, and we look forward to working with the Corps, the
other federal resource agencies, and the states to strengthen
implementation of the nationwide permit system after it is reissued.
Sincerely,
Grady McCallie,
Wetlands Legislative Representative,
Washington, DC Office.
Jim Adams,
Legal Associate,
Alaska Natural Resource Center.
Tony Turrini,
Legal Counsel,
Alaska Natural Resource Center.
______
National Wildlife Federation,
Washington, DC, August 14, 1992.
The Chief of Engineers,
United States Army Corps of Engineers, Washington, DC.
re: proposed rule for the clean water act regulatory programs of the
army corps of engineers and the environmental protection agency [57
federal register at 26894; june 16, 1992]
Dear Mr. Collinson: The National Wildlife Federation (NWF), the
North Carolina Wildlife Federation (NCWF), the Southern Environmental
Law Center (SELC), the Natural Resources Defense Council (NRDC), the
Izaak Walton League of America (IWLA), and the National Audubon Society
(NAS) (hereafter collectively referred to as ``the environmental
community'') respectfully request that the following comments be made
part of the public record on the proposed rule published in the June
16, 1992 Federal Register regarding the Proposed Rule for the Clean
Water Act Regulatory Programs of the Army Corps of Engineers and the
Environmental Protection Agency. These comments address the portions of
the rule which the Army Corps of Engineers (the Corps) and the
Environmental Protection Agency (EPA) have proposed pursuant to NWF,
NCWF, and SELC's settlement agreement in North Carolina Wildlife
Federation and National Wildlife Federation v. Tulloch, Civil No. C90-
713-CIV-5-BO (E.D.N.C. 1992) (Tulloch). NWF will comment under separate
cover upon the provisions of the rule which were not proposed pursuant
to the Tulloch settlement.
We urge you to adopt the proposed Tulloch provisions as written.
These provisions will eliminate two loopholes in the EPA and Corps
regulations. The regulatory definition of ``discharge of dredged
material'' provided that ``de minimis'' incidental soil movement
occurring during ``normal dredging operations'' was not a ``discharge
of dredged material'' that triggered the Sec. 404 permitting
requirements. Due to lack of guidance, this language was often
interpreted to exclude from regulation landclearing, drainage and other
excavation activities in wetlands where the actual quantity of
redeposited soil was small but where the damage to waters of the United
States was often quite large. The facts that gave rise to the Tulloch
lawsuit are a perfect example of the havoc wrought by the ambiguity in
the existing rule. Instead of sidecasting soil while digging ditches,
the private defendants modified their backhoes and took other measures
to reduce the amount of soil which was redeposited into wetlands during
the ditching and draining of hundreds of acres of wetlands in North
Carolina. It is unsound, unfair and inconsistent with congressional
intent for the government to allow, and even assist, developers in
deliberately evading the law through these elaborate machinations.
The proposed rule would stop the abuse engendered by the lack of
clarity in the current definition of ``discharge of dredged material.''
It would clarify that redepositions of soil which are incidental to any
activity, such as ditching, channelization, mechanized landclearing, or
other excavation that has or would have the effect of destroying or
degrading any area of waters of the United States are regulated
discharges of dredged material under Sec. 404. This clarification
would: eliminate an ambiguity in the regulations that people used to
escape regulation and to destroy thousands of acres of wetlands;
promote consistent and fair determinations and save administrative
resources by providing a clear, easy to apply, bright line as to what
is regulated; make the Sec. 404 program more attractive to states
considering taking a greater role in the Sec. 404 program; and help
effectuate the goals and purposes of the Clean Water Act by staunching
the loss of thousands of wetlands through the ``de minimis'' loophole.
The Tulloch rule also closes another loophole--the use of pilings
as a substitute for fill. Prior to November 3, 1988, some people were
avoiding the Sec. 404 permitting requirements by placing pilings into
waters of the United States in lieu of fill. Rather than seek a
Sec. 404 permit for fills to construct a building in wetlands or a dam,
many individuals have used pilings to evade the Sec. 404 permitting
requirements. For example, in the Tulloch case, one of the private
defendants used closely spaced pilings to construct a wooden weir in
jurisdictional wetlands without a Sec. 404 permit. This wooden weir was
used to inundate acres of jurisdictional wetlands.
Although the pilings problem was addressed in the Corps' Regulatory
Guidance Letter 88-14,\1\ the Tulloch case exemplifies the need for the
proposed rule clarifying the regulation of the use of pilings in lieu
of fill. In Tulloch, the Wilmington District authorized construction of
the weir without a Sec. 404 permit despite instruction in the RGL to
the contrary.
---------------------------------------------------------------------------
\1\ On November 3, 1988, the Corps issued Regulatory Guidance
Letter 88-14, ``Applicability of Section 404 to Piles'' (RGL 88-14).
---------------------------------------------------------------------------
The proposed pilings rule will largely prevent the use of pilings
for fill. It incorporates the substantive provisions of Regulatory
Guidance Letter RGL 90-08.\2\ In essence, the proposed rule closes the
loophole by specifying that a Sec. 404 permit is necessary for
placement of pilings where pilings function in lieu of or have the
physical effect of fill. Moreover, unlike the RGLs, which are merely
guidance documents, the pilings regulation will have the force and
effect of law--thus, preventing the Tulloch situation from happening
again. Accordingly, it is very important to finalize the proposed
language on pilings so that the EPA and Corps regulations will stop
people from using pilings to avoid the requirements of the Clean Water
Act.
---------------------------------------------------------------------------
\2\ Regulatory Guidance Letter 90-08, ``Applicability of Section
404 to Pilings,'' (RGL 90-08) replaced RGL 88-14. 57. Fed. Reg. 6593.
---------------------------------------------------------------------------
specific comments
I. Closing the ``de minimis'' loophole
A. The Proposed Language Furthers the Goals and Purposes of
the Clean Water Act.
Adoption of the proposed rule not only furthers the goals and
purposes of the Clean Water Act, it is necessary to further the goals
and purposes of the Clean Water Act.
The Clean Water Act constitutes a ``comprehensive legislative
attempt `to restore and maintain the chemical, physical and biological
integrity of the Nation's waters.' '' United States v. Riverside
Bayview Homes, Inc., 474 U.S. 121, 132 (1985) (quoting 33 U.S.C.
1251(a)) (emphasis added); see also, S. Rep. No. 370, 95th Cong., 1st
Sess. (1977) at 74-75, reprinted in U.S.C.A.A.N. 4326, 4400. In order
to achieve this goal, Congress enacted an absolute prohibition against
``the discharge of any pollutant by any person'' into waters of the
United States except in compliance with a permit issued under the Act
or with a statutory exemption. 33 U.S.C. 1311(a) (emphasis added); NWP
v. Consumers Power, 862 F.2d 580, 582 (6th Cir. 1988); United States v.
Frezzo Brothers. Inc., 602 F.2d 1123, 1127 (3d Cir. 1979), cert.
denied, 444 U.S. 1074 (1980); American Frozen Food Institute v. Train,
539 F.2d 107, 115 (D.C. Cir. 1976); NRDC v. Costle, 568 F.2d 1369, 1374
(D.C. Cir. 1977); NWF v. Hanson, 623 F. Supp. 1539, 1543 (D.N.C. 1985).
The redeposit of soil or vegetative matter into jurisdictional
wetlands constitutes a discharge of pollutants into waters of the
United States. Avoyelles Sportsmen's League. Inc. v. Marsh (Avoyelles
III), 715 F.2d 897, 923-924 (5th Cir. 1983); United States v. M.C.C of
Florida, Inc., 772 F.2d 1501, 1503 (11th Cir. 1985). There is no
exemption in the Clean Water Act for ``de minimis'' discharges.
Accordingly, the Clean Water Act's ban on ``the discharge of any
pollutant by any person'' applies to incidental redeposits of soil or
vegetative matter into wetlands regardless of the size of these
incidental discharges. Reid v. Marsh, 14 ELR 20231, 20234 (N.D. Ohio
1984); see generally, Avoyelles III, 715 F.2d at 919, n.37.
The Clean Water Act broadly sweeps proposed discharges of all sizes
dredged or fill material into the Sec. 404 permitting process. United
States v. Huebner, 752 F.2d 1235, 1239 (7th Cir. 1985) (quoting United
States Steel Corp. v. Train, 556 F.2d 822, 829 (7th Cir. 1977)
(Congress intended the Sec. 404 permit process to serve as ``[t]he
cornerstone of the * * * scheme for cleaning up the nation's
waters.''). The role of the Sec. 404 permitting process is to protect
the environment by identifying potential adverse effects of proposed
projects and by requiring the permittee to avoid, mitigate or
compensate for them pursuant to the Sec. 404(b)(1) Guidelines. 40
C.F.R. Sec. 230.10.\3\ Any unavoidable adverse effects must be
compensated for through mitigation. 40 C.F.R. Sec. 230.10. Moreover,
the Corps examines more than just the ``footprint of the discharge;''
it evaluates the potential direct, cumulative, indirect, and secondary
effects (i.e., the Corps evaluates the potential adverse effects of the
overall activity upon the aquatic ecosystem). See e.g., 40 C.F.R.
Sec. 230.11(h). Thus, the Sec. 404 permitting scheme focuses upon the
potential effects of the overall activity rather than the size of the
proposed discharge.
---------------------------------------------------------------------------
\3\ ``The Corps' permit decisions must be based upon EPA
guidelines.'' NWF v. Hanson, 859 F.2d 313, 315 (4th Cir. 1988); 33
U.S.C. 1344(b); 40 C.F.R. Part 230. The Guidelines require the Corps to
evaluate the potential adverse environmental effects of the proposed
activity, and require the permittee to avoid or minimize the adverse
effects through use of the least harmful, practicable alternative to
the proposed activity. 40 C.F.R. Sec. Sec. 230.1(c), 230.10.
---------------------------------------------------------------------------
The statutory exemption and general permitting requirements in
Sec. 404 further demonstrate that Congress was concerned with the
potential effect of the proposed activity as a whole--not the size of
the proposed discharge. Section 404(e) provides, in pertinent part,
that the Corps can issue a general permit for a ``category of
activities involving discharges of dredged or fill material if [it]
determines that the activities in such category are similar in nature,
will cause only minimal adverse environmental effects when performed
separately, and will have only minimal cumulative adverse effect on the
environment.'' 33 U.S.C. 1344(e) (emphasis added). Similarly, in
Sec. 404(f)(1), Congress only exempted ``narrowly defined activities
that cause little or no adverse effects either individually or
cumulatively.'' 3 1978 Legislative History at 474 (statement of Senator
Muskie); Avoyelles III, 715 F.2d at 926. it further provided that a
permit would be required, even for discharges which would otherwise be
exempt under Sec. 404(f)(1), if the discharge is ``incidental to any
activity having as its purpose bringing an area of the navigable waters
into a use to which it was not previously subject, where the flow or
circulation of navigable waters may be impaired or the reach of such
waters reduced.''
Accordingly, the Tulloch rule must be finalized as written to
implement the Clean Water Act. Congress was not concerned with the size
of the proposed discharge. It was concerned with the potential adverse
effects of the proposed activity as a whole upon the waters of the
United States. The proposed rule would require a Sec. 404 permit for
the redeposit of dredged materials into waters of the United States
which occurs during ``mechanized landclearing, ditching,
channelization, or other excavation which has or would have the effect
of destroying or degrading any area of waters of the United States.''
57 Fed. Reg. 26898. By closing the ``de minimis'' loophole in the
current regulations, the proposed rule will give the permit process a
chance to do its job of protecting the integrity of the Nation's
waters.
Finally, we note that the proposed rule will not regulate all ``de
minimis'' discharges. The proposed rule will not regulate ``de
minimis'' discharges that are incidental to activities that would not
adversely effect the waters of the United States. We believe that this
is consistent with congressional intent. In the proposed rule, EPA and
the Corps have only chosen to forgo regulation of ``de minimis''
discharges of dredged material that have no effect upon the integrity
of the waters of the United States. Regulating such discharges
obviously would do nothing to further the goal of restoring and
maintaining the chemical, physical and biological integrity of the
Nation's waters.\4\ Moreover, the preamble to the proposed rule states
that the Corps and EPA will presume that mechanized landclearing,
ditching, channelization, and other excavation in wetlands or other
waters of the United States would adversely effect waters of the United
States. 57 Fed. Reg. 26896. Not only is this presumption factually
accurate, it also ensures that the Corps will not forgo regulation of a
proposed incidental ``de minimis'' discharge without first examining
its potential adverse effects in the Sec. 404 permitting process. This
approach reflects a reasonable exercise of EPA and the Corps'
discretion in implementing the Act, and should not constitute an
impediment to adopting the proposed rule.
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\4\ In contrast to ``de minimis'' discharges that have an adverse
effect upon waters of the United States, ``de minimis'' discharges that
only have small individual and cumulative adverse effects should be
handled through general permits under Sec. 404(e). An example of ``de
minimis'' discharges that have no adverse effect upon waters of the
United States is the dirt that drips off of the boots of a hiker as he
walks through wetlands.
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B. The Massive Loss of Wetlands Through the ``De Minimis'' Loophole
Demonstrates the Drastic and Urgent Need to Close the ``De
Minimis'' Loophole in the Existing Regulations
It is imperative that EPA and the Corps finalize the proposed
modifications to the definition of ``discharge of dredged material'' as
soon as possible. With every day of delay we lose more wetlands due to
ditching, channelization, mechanized landclearing, and other excavation
activities.\5\ These activities inevitably entail a redeposit of soil
into waters of the United States, and their destructive effect on
wetlands is incontrovertible.
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\5\ The environmental community believes that the Corps RGL on
mechanized landclearing has been beneficial in clarifying that Sec. 404
permits are required for this activity. However, the proposed rule will
add further clarity and will have the force and effect of law.
---------------------------------------------------------------------------
By 1980, approximately 107 million acres of wetlands had been lost
in the United States due to unregulated, agricultural drainage. Dahl,
T.E., Wetlands Losses in the United States 1780's to 1980's, U.S.
Department of the Interior, Fish and Wildlife Service, Washington, D.C.
at 9 (1990). ``Most wetlands could disappear between 2000 and 2200 if
the present rate of drainage continues.'' Weller, M.W., Estimating
Wildlife and Wetland Losses Due to Drainage and Other Perturbations 337
(Selected Proceedings of the Midwest Conference on Wetlands Values and
Management, June 17-19, 1981). From the mid-1950's to the mid-1970's
unregulated agricultural drainage accounted for 87% of national
wetlands losses. Tiner, R.W., Wetlands of the United States: Current
Status and Recent Trends, U.S. Department of the Interior, Fish and
Wildlife Service, Washington, D.C. at 31-32 (1984). In 1984,
agricultural drainage had the greatest impact on forested wetlands and
emergent wetlands, with losses of 5.8 and 2.7 million acres,
respectively.
The most extensive wetland losses from unregulated, agricultural
drainage were in Louisiana, Mississippi, Arkansas, North Carolina,
North Dakota, South Dakota, Nebraska, Florida and Texas. Greatest
losses of forested wetlands took place in the Lower Mississippi Valley
with the conversion of bottomland hardwood forests to farmland. Shrub
wetlands were hardest hit in North Carolina where pocosin wetlands are
being converted to cropland or pine plantations or mined for peat.
Inland marsh drainage for agriculture was most significant in the
Prairie Pothole Region of the Dakotas and Minnesota, Nebraska's
Sandhills and Rainwater Basin and Florida's Everglades. Id. at 32.
Although the instances of wetlands devastation under the ``de
minimis'' loophole are too numerous to catalogue in these comments, we
have discussed a few representative samples.
1. The ravages caused by the ``de minimis'' loophole are vividly
illustrated by the wetlands destruction at issue in the Tulloch case.--
The National Wildlife Federation, North Carolina Wildlife Federation
and the Southern Environmental Law Center filed the Tulloch suit due to
their horror over the massive devastation that occurred when two
developers, aided by the Wilmington District Office of the Corps, used
the ``de minimis'' loophole to evade the permitting requirements of the
Clean Water Act. These developers destroyed hundreds of acres of
extremely valuable freshwater wetlands on the Pembroke Jones Park,
Landfall Commercial, and Northchase sites in coastal North Carolina.
a. The Corps' Wilmington District office allowed Landfall
Associates to use the ``de minimis'' loophole in the regulations to
destroy hundreds of acres of wetlands on the Pembroke Jones Park and
Landfall Commercial sites.--On November 13, 1986, the Corps issued a
public notice describing a permit application for the development of
the Pembroke Jones Park site. In the public notice, the Corps described
the process by which the developer could clear, ditch and drain the
wetlands to dewater them, have them removed from jurisdiction, and then
build upon the converted wetlands without resort to a Sec. 404 permit.
On December 16, 1986, Corps personnel met with an engineering firm
hired by Landfall Associates (the developer of the Pembroke Jones Park
and Landfall Commercial sites). The Corps personnel ``reiterated their
position'' that clearing, ditching and draining the areas as outlined
in the November public notice, ``would be permissible without a
Sec. 404 permit.'' They advised the engineering firm to begin clearing,
ditching, and draining the wetlands. Pursuant to a request from
Landfall, Corps personnel then delineated some of the jurisdictional
wetlands on the Pembroke Jones Park site with the knowledge that
Landfall intended to clear, ditch, and drain the wetlands to remove
them from jurisdiction.
In March 1987, Landfall began clearing wetlands vegetation at the
Pembroke Jones Park site with skidders, specially modified backhoes,
and ``bush hogs.'' Landfall used these machines to push over wetland
trees, pull up tree stumps and roots, and drag or push downed trees to
upland locations. Throughout the mechanized landclearing process soil
was redeposited into wetlands that the Corps had determined were
``waters of the United States'' subject to Sec. 404. For example, soil
was redeposited into wetlands from the treads of machinery, from the
roots of trees as they were uprooted and pushed to the uplands, and
from the backhoe buckets. By July 1989, Landfall had cleared
approximately 600 wetland acres. Corps personnel spent at least 22 days
observing the clearing activities.
Once Landfall finished the mechanized landclearing activities, it
began ditching and draining the wetlands on the Pembroke Jones Park and
Landfall Commercial sites. Landfall used backhoes and draglines to
remove soil from the wetlands to create a network of ditches to drain
the water from the wetlands. During the ditching process, soil was
redeposited into jurisdictional wetlands from the treads of the
backhoes as they moved through the wetlands, from the dragline and
backhoe buckets in the course of dredging, and from discharges to
support heavy equipment working in wetlands. Landfall ditched over 200
acres of wetlands in order to drain them and remove them from Sec. 404
jurisdiction.
Before the passage of even one growing season, the Corps notified
Landfall that two approximately 20 acres of wetlands on the Pembroke
Jones Park and Landfall Commercial sites had been sufficiently drained
by Landfall's ditches to no longer be considered jurisdictional
wetlands subject to Sec. 404, and the Corps removed these areas from
jurisdiction. During 1989, the Corps removed more areas from
jurisdiction, and now approximately 125 acres have been ``removed from
Sec. 404 jurisdiction'' on the Pembroke Jones Park and Landfall
Commercial sites. Ditches on the Landfall Commercial and Pembroke Jones
Park sites continue to drain water.
By July 1989, Landfall also excavated at least 15.4 acres of
wetlands and other waters of the United States without a Sec. 404
permit. Landfall used backhoes and draglines to remove soil and
vegetation from the wetlands to create open water ponds. During this
mechanized excavation process, soil was redeposited into jurisdictional
wetlands and other waters of the United States.
In May 1990, the Corps District Engineer informed Landfall that it
needed a Sec. 404 permit for its ditching and excavation activities due
to the incidental discharges into jurisdictional wetlands.
All tolled, Corps personnel allowed Landfall to use the ``de
minimis'' loophole in the regulations to evade the Sec. 404 permitting
requirements and to destroy at least 250 acres of jurisdictional
wetlands. Obviously, we cannot fulfill the mandate of the Clean Water
Act to ``restore or maintain the chemical, physical and biological
integrity of the Nation's waters'' if we continue to sustain such
massive losses of wetlands through the ``de minimis'' loophole in the
regulations. 33 U.S.C. Sec. 1251(a). Furthermore, we will never obtain
the President's goal of no net loss of wetlands unless this loophole is
permanently closed. (Speech before Ducks Unlimited's Sixth
International Waterfowl Symposium, June 6, 1989).
b. The Corps' Wilmington District office allowed Ammons Northchase
Corporation to use the ``de minimis'' loophole in the regulations to
destroy at least one hundred acres of wetlands on the Northchase
site.--In 1986, Ammons Northchase Corporation (Northchase) began
clearing, ditching and draining wetlands on the Northchase site and
continued doing so at least through February 1990. Corps personnel
advised and authorized Northchase to clear and drain these
jurisdictional wetlands without a Sec. 404 permit as long as only ``de
minimis'' amounts of dredged or fill material were redeposited into
waters or wetlands. Corps personnel also delineated most jurisdictional
wetlands on the Northchase site with the knowledge that Northchase
intended to ditch and drain these wetlands and thereby remove them from
jurisdiction.
Northchase cleared the wetlands using backhoes in jurisdictional
wetlands for the initial land clearing, and ``track hoes'' to pick up
soil and root mat. Wetland trees were pushed over, the stumps and roots
were pulled up, the wetland soil was separated from the roots, and the
trees were pushed to upland areas. During this mechanized landclearing
process, soil was redeposited into wetlands from the treads of
bulldozers and backhoes, the bulldozer blades, the roots and stumps of
trees, and from backhoe buckets.
Northchase used backhoes and draglines to remove soil from the
wetlands to create a network of ditches to drain the wetlands. During
the ditching process, soil was redeposited into wetlands from the
movement of backhoes in wetlands and from the dragline buckets in the
course of dredging. Soil was also redeposited in discharges to support
the backhoes working in the wetlands.
The U.S. Fish and Wildlife Service (FWS) observed the ditching and
draining at the Northchase site and reported these conversion
activities to the Corps. The Corps never responded to the FWS inquiries
regarding investigations, authorizations, or enforcement actions.
On several occasions, Corps personnel have removed certain wetlands
at the site from Sec. 404 jurisdiction based on the determination that
the hydrology of these wetlands had been sufficiently altered by the
ditching and draining activities.
Northchase's clearing, ditching and draining, and filling
activities destroyed approximately 100 acres of jurisdictional wetlands
at the site. What is perhaps most disturbing of all is that developers
in coastal North Carolina continue to believe this loophole is
available to them, despite purported efforts by the Corps to limit its
use since 1989. Only closing the ``de minimis'' loophole in these
regulations, can the Corps stop this unregulated, wholesale destruction
of wetlands.
c. The wetlands destruction at the Jones Park, Landfall Commercial
and Northchase sites harmed the chemical, physical and biological
integrity of North Carolina's aquatic ecosystem.--The stark fact that
the Wilmington District of the Corps allowed Landfall and Northchase to
use the ``de minimis'' loophole in the regulations to evade the
Sec. 404 permitting requirements and destroy at least 350 acres of
jurisdictional wetlands within the Cape Fear River Basin is appalling.
A mere recitation of the number of wetlands acres destroyed, however,
is insufficient to convey the magnitude of the loss that North Carolina
is suffering from this abuse of the Sec. 404 program.
The wetlands that were destroyed on the Northchase, Pembroke Jones
Park, and Landfall Commercial sites were very valuable freshwater
wetlands. Most of these wetlands were thick pond pine and evergreen
shrub bogs called ``pocosins''--the Algonquin Indian term for ``swamp-
on-a-hill.'' Richardson, Pocosins, An Ecosystem in Transition
(hereafter ``Richardson'') in ``Pocosin Wetlands, An Integrated
Analysis of Coastal Plain Freshwater Bogs in North Carolina'' (ed.
Richardson 1980) at 3-6. Other wetlands and waters on the Pembroke
Jones Park, Landfall Commercial, and Northchase sites were swamp forest
or bottomland hardwood wetlands, natural ponds, and coastal marsh
areas. The Pembroke Jones Park wetlands have been referred to by Corps
and FWS personnel as having once been ``some of the most beautiful,
biologically diverse land in North Carolina.''
i. Pocosin wetlands provide a multitude of functions and values.--
The functions and values provided by pocosin wetlands include:
providing clean drinking water by filtering polluted runoff; preventing
flooding by absorbing excess rainwater; recharging the aquifer by
trapping water that seeps into the aquifer; and providing habitat for
rare native plant and animal species.
In specific, pocosin wetlands provide abundant water capacity,
acting as storm buffers by greatly reducing flood peaks. Water from
heavy storms moves slowly and broadly across the swamp surface and
through the ``very porous tangle of roots and organic debris that
comprises the uppermost part of the soil profile.'' Daniel, Hydrology,
Geology, and Soils of Pocosins: A Comparison of Natural and Altered
Systems (hereafter ``Daniel'') in ``Pocosin Wetlands, An Integrated
Analysis of Coastal Plain Freshwater Bogs in North Carolina''
(Richardson ed. 1981) at 89. Rather than being funneled quickly through
a discrete channel, the storm run-off diffuses gradually over a broad
reach of shoreline. ``This characteristic has a significant stabilizing
influence on the chemical quality of adjacent bodies of water.'' Id. at
89.
Pocosin wetlands slow down and diffuse the influx of freshwater
storm run-off into coastal streams and bays that contain saline water
and support marine life, allowing these coastal waters to gradually
assimilate the fresh water without drastic fluctuations in salinity.
This buffering capacity is lost when pocosins are drained and an
artificial drainage system channels the freshwater run-off rapidly and
directly into coastal waters. Introduced in such concentration to
coastal waters, this freshwater run-off can actually become a
pollutant, harming shrimp and other valuable marine organisms. Daniel
at 100-101; Street and McClees, North Carolina's Coastal Fishing
Industry and the Influence of Coastal Alterations (hereafter Street and
McClees'') in ``Pocosin Wetlands, An Integrated Analysis of Coastal
Plain Freshwater Bogs in North Carolina'' (Richardson ed., 1931) at
238-251.
When pocosin wetlands are cleared, ditched, drained, and converted
to other land uses, the normally acidic and nutrient poor soil is often
treated with nutrients to prepare it for new uses. These nutrients are
picked-up by freshwater runoff which is rapidly channeled through the
ditches into coastal streams and bays. This contaminates coastal waters
with excess nutrients such as magnesium, calcium, bicarbonate, sulfate,
nitrate nitrogen, phosphorous, and suspended sediments. The excess
nutrients can cause algal blooms, eutrophication, and ultimate
disruption of marine habitat along the coastal fringe. Daniel at 101-
104; Richardson at 141.
Drainage of pocosins and other freshwater wetlands is a suspected
cause of declines in shrimp, oyster and fish production. Street and
McClees at 247-249; Postel, The Economic Benefits of Pocosin
Preservation (hereafter ``Postel'') in ``Pocosin Wetlands, An
Integrated Analysis of Coastal Plain Freshwater Bogs in North
Carolina'' (Richardson ed. 1981) at 290-291. In 1978, North Carolina
had a $325 million commercial and recreational fishing industry, 90% of
which was comprised of estuarine-dependent species. Street and McClees
at 244.
Pocosins provide habitat for endemic wildlife species that were
always restricted to pocosin habitat and for native species that once
ranged broadly but now are restricted to pocosins due to habitat loss.
Wilbur, Pocosin Fauna (hereafter ``Wilbur'') in ``Pocosin Wetlands, an
Integrated Analysis of Coastal Plain Freshwater Bogs in North
Carolina'' (Richardson ed. 1981) at 62-68. For example, pocosins
provide the last stronghold for the black bear in coastal North
Carolina. Monschein, Values of Pocosins to Game and Fish Species in
North Carolina (hereafter ``Monschein'') in ``Pocosin Wetlands, An
Integrated Analysis of Coastal Plain Freshwater Bogs in North
Carolina'' (Richardson ed. 1981) at 155-170.
ii. Swamp forest was also destroyed at the Pembroke Jones Park and
Landfall Commercial sites.--At least 6% of the wetlands destroyed at
the Landfall Commercial and Pembroke Jones Park sites were swamp
forest, including red maple, sweet gum, black gum, bald cypress, and
sweet bay species.
These forested wetlands provide valuable wildlife habitat, store
flood waters, and filter pollutants from run-off, thus maintaining
downstream water quality. Kuenzler, Value of Forested Wetlands as
Filters for Sediments and Nutrients, in ``Forested Wetland
Proceedings'' at 85, 93; Harris and Gosselink, Cumulative Impacts of
Bottomland Hardwood Conversion on Wildlife, Hydrology and Water Qnality
(EPA 1986); Harris et al., Bottomland Hardwoods: Valuable, Vanishing,
Vulnerable (U.S. FWS 1984); Frederickson, Lowland Hardwood Wetlands:
Current Status and Habitat Values for Wildlife in ``Wetland Functions
and Values: The State of Our Understanding'' (Greeson, Clark and Clark
eds. 1979) at 298-303; Wharton et al., The Fauna of Bottomland
Hardwoods in the Southeastern United States, in ``Wetlands of
Bottomland Hardwood Forests'' (Clark and Benforado eds. 1981) at 87-
127; Winger, Forested Wetlands of the Southeast: Review of Major
Characteristics and Role on Maintaining Water Quality, in ``Resource
Publication 163'' (U.S. FWS 1986) at 2-3. The swamp forest on the
Pembroke Jones Park site was of good quality and was essential to
maintaining water quality in Graham's Pond and Howe Creek. 1986
Environmental Assessment at 10, 12.
iii. The wetlands destruction at the Pembroke Jones Park, Landfall
Commercial, and Northchase sites has caused significant losses of
functions and values that extend well beyond the boundaries of these
sites.--The destruction of the wetlands at the Pembroke Jones Park,
Landfall Commercial, and Northchase sites has killed many wetlands
plants and animals, eliminated extensive areas of valuable wetlands
habitat, and created adverse water quality impacts off-site.
These wetlands used to provide rich and extensive wildlife habitat
for a wide variety of creatures. A 1986 Environmental Assessment
(``EA'') of the Pembroke Jones Park site concluded that the wetlands.
there served as ``high quality habitat for a variety of wildlife
species, both game and non-game.'' Even though the site visit for the
EA was conducted in winter, many important species were observed,
including herons, wood ducks, river otters, raccoons, coots, and
kingfishers. Id. U.S. Fish and Wildlife Service (FWS) biologists made
visits to the site beginning in 1985. FWS found that ``the overall
project site supports diverse and abundant plant and animal
communities. The pocosin, swamp forest, pocosin-pine flatwoods, ponds,
marshes and their associated upland habitats found on the site provide
high quality feeding, nesting, rearing and cover sites for large and
small mammals, avifauna, reptiles, and amphibians.'' Id. at 2. FWS gave
these wetlands a Resource Category 2 designation--i.e., they provide
high-quality habitat and are relatively scarce or becoming scarce on a
national or regional basis. Id. at 3. The North Carolina Wildlife
Resources Commission noted that the Pembroke Jones Park wetlands were
``some of the highest quality wildlife habitat remaining in New Hanover
County.''
By removing the wetlands vegetation and by dewatering the wetlands,
Landfall and Northchase destroyed this valuable wetlands habitat. A
March, 1990 visit to the Pembroke Jones Park site only revealed
evidence of a raccoon and a few ducks in the wettest area of the
remaining wetlands that were left on the site. Observers were told that
once herons had nested in cypress domes and deer had graced the tidal
inlets and freshwater ponds near Horseshoe Lake. By the summer of 1990,
observers witnessed a moonscape--trees and shrubs removed and soil
graded down to the water-line with only sediment fences and sediment-
filled ponds demarking where the thriving wetlands used to be. Other
site visits revealed that-erosion caused by the landclearing had
smothered many mollusks and other aquatic creatures, leaving far less
diversity in the benthic life in the streams.
The wetlands destruction on the Landfall Commercial, Pembroke Jones
Park and Northchase sites has caused significant off-site decreases in
water quality. The destruction of wetlands on the Pembroke Jones Park
and Landfall Commercial sites has eroded water quality in Graham Pond,
Howe Creek, Horseshoe Lake, and Middle Sound. Similarly, wetlands
destruction at the Northchase site has diminished water quality in
Punkin Creek, Prince George's Creek, or Smith Creek, the Northeast Cape
Fear River, the Cape Fear River and the Cape Fear estuary. Eroded soil
that has run off of cleared wetlands or has been conveyed in water
through the drainage ditches on the Pembroke Jones Park site has flowed
into Graham Pond and Horseshoe Lake and has passed, from there, into
Howe Creek. Fertilizers, herbicides and sediment have flowed from
Pembroke Jones Park into graham Pond, Horseshoe Lake and Howe Creek.
Howe Creek has suffered turbidity levels that exceed state and federal
water quality standards. Similarly, eroded soil and possibly other
pollutants have drained from the Northchase site into Punkin Creek,
Prince George's Creek or Smith Creek, which, in turn, drain into the
Northeast Cape Fear River and ultimately into the Cape Fear River and
estuary. The destruction of the Pembroke Jones Park, Landfall
Commercial and Northchase wetlands has also degraded fish, shellfish
and wildlife habitats in these and other nearshore coastal waters. The
rapid conveyance of freshwater run-off itself from these sites and
others like them has disturbed the salinity balance in the estuary and
the estuarine life that depend upon it.
Many of the affected waterbodies are sensitive to these
perturbations and are highly productive. For example, Howe Creek and
Middle Sound are classified as outstanding resource waters by the State
of North Carolina for commercial shellfishing, primary recreation,
fishing, wildlife, and aquatic life propagation and survival uses. Howe
Creek and Middle Sound have also been designated primary nursery areas
for fish and shellfish. North Carolina Administrative Code: 15A NCAC
3B.1402 (November 1, 1990).
The Northeast Cape Fear River is a state designated primary nursery
area, and both Smith Creek and the Northeast Cape Fear River are high
quality streams designated by the state for aquatic life propagation
and survival, fishing, wildlife, and secondary recreation. North
Carolina Administrative Code: 15A NCAC 2B.0311 (November 1, 1990);
North Carolina Administrative Code: 15A NCAC 3B.1402 (November 1,
1990); North Carolina Administrative Code: 15A NCAC 3B.1402(1)
(November 1, 1990). The Lower Cape Fear River is a principal shrimp
fishery area for brown and white shrimp in North Carolina. Street and
McClees at 244-245; Postel at 290-291.
Thus, the massive wetlands destruction engendered by the ``de
minimis'' loophole on the Pembroke Jones Park, Landfall Commercial and
Northchase sites has had significant and extensive adverse effects upon
the chemical, physical and biological integrity of the waters of
coastal North Carolina. The proposed rule must be adopted to finally
close the ``de minimis'' loophole and restore and maintain the
integrity of the Nation's waters.
2. The ``de minimis'' loophole has been used to destroy wetlands
throughout the Nation.
Hundreds of thousands of acres of wetlands in this country have
been destroyed due to the Corps' failure to regulate wetlands
destruction that entails small incidental discharges of dredged or fill
material into waters of the United States. There are innumerable
instances in which Corps personnel have (l) told members of the public
that they could destroy wetlands with impunity if the associated
discharges into wetlands were small; or (2) ignored incidents in which
wetlands have been destroyed through activities which entailed an
associated discharge into wetlands. Because Corps Districts have used
this loophole to avoid taking jurisdiction, many of these cases are not
even documented. Out of the numerous documented cases, however, we only
have space here to discuss a few examples that illustrate the harm
engendered by this failure to regulate and the compelling need to close
this loophole in the wetlands program by adopting the Tulloch rule as
written.
a. Wetlands in the Southern United States have been severely
impacted by the ``de minimis'' loophole.--In the Southeast alone, the
failure to regulate mechanized landclearing resulted in the destruction
of approximately 430,000 acres of bottomland hardwoods a year from 1960
to 1975. Turner, R.E., et al., Bottomland Hardwood Forest Land
Resources of the Southeastern United States in ``Wetlands of Bottomland
Hardwood Forests'' (Clark and Benforado eds. 1981). After these
wetlands were cleared, they were generally converted into soybean
fields. The Corps' Regulatory Guidance Letter 90-05, ``Landclearing
Activities Subject to Section 404 Jurisdiction,'' 57 Fed. Reg. 6591,
stemmed the tide in part. However, we continue to lose approximately
182,500 acres of bottomland hardwoods a year in northeastern Louisiana
alone due to unregulated ditching and mechanized landclearing. The
Nature Conservancy of Louisiana, The Forested Wetlands of the
Mississippi River: an Ecosystem in Crisis (1992).
These large losses of bottomland hardwoods are particularly
devastating because bottomland hardwoods are tremendously valuable
wetlands. See generally, Taylor, J.R., et al., Bottomland Hardwood
Forests: Their Functions and Values (1990) (hereafter Taylor). ``The
bottomland hardwoods of the lower Mississippi floodplain are among the
Nation's most important wetlands.'' Tiner at 48. They are prime
overwintering grounds for 2.5 million of the 3 million mallards of the
Mississippi Flyway and for nearly all.. of. the 4 million wood ducks of
the Mississippi Flyway. Id. Nu-
merous finfishes depend on the flooded hardwoods for spawning and
nursery grounds (e.g., catfish, largemouth bass, and perch). These
wetlands also support many furbearers, and they play a vital role in
reducing flooding, removing pesticides and fertilizers from the water,
recharging groundwater, and trapping eroded soil from farmlands. Id.
Taylor at 39-56, 59-60.
Bottomland hardwood destruction has had many adverse impacts upon
the Southeast. Habitat loss has resulted in dramatic species declines
(the agricultural monocultures that replace the bottomland hardwoods
provide few niches for wildlife). For example, the cerulean warbler has
suffered a 76% decline largely due to bottomland hardwood habitat loss.
Clearing floodplain trees obviously reduces timber resources, but it
also has the less obvious effects of reducing detrital input to the
aquatic ecosystem and of raising stream temperatures by reducing
shading (elevated water temperatures affect biotic communities and
decrease the oxygen-holding capacity of water). When bottomland
hardwoods are destroyed, important filtering functions provided by
these wetlands are lost. Moreover, conversion to agriculture increases
the loading of pesticides and herbicides which runoff into local ponds
and streams. The removal of wetlands vegetation and ditching eliminate
flood-retention benefits from these areas and exacerbate flooding
episodes downstream. Finally, bottomland hardwood destruction
contributes to lower water tables because the wetlands are no longer
there to recharge the aquifer. Taylor at 66-73.
The Melvin Parks case provides an excellent example of the threat
the ``de minimis'' loophole has posed to bottomland hardwoods. The
Vicksburg District of the Corps informed Melvin Parks that he did not
need to seek a Sec. 404 permit before clearing and converting 1,800
acres of bottomland hardwood wetlands in Humphreys County, Mississippi
(the Belzoni tract) into agricultural fields. These wetlands were
Mississippi Delta bottomland hardwoods that seasonally flooded to
provide prime habitat for migrating ducks and geese. The Vicksburg
District stated that no permit was necessary even though the proposed
mechanized landclearing unquestionably would entail a discharge into
waters of the United States. Mr. Parks proposed to harvest the
merchantable timber, and shear the remaining trees and stumps with a
bulldozer equipped with blades to cut the trees near or below the
surface of the soil. He planned to rake the roots, push the sheared
vegetation to form windrows, and burn the windrows and disc the
remaining debris and ash.\6\ The upper two to six inches of the soil
would have been displaced during the mechanized land clearing. Due to
the fact that the landclearing activities would entail redeposits of
soil into wetlands, EPA Region IV contradicted the Corps and informed
Mr. Parks that he needed to obtain a Sec. 404 permit from the Corps.
EPA Headquarters and Corps Headquarters supported Region IV's
determination, and Mr. Parks applied for a Sec. 404 permit. If EPA
Region IV had not acted and the Vicksburg District determination had
been permitted to stand, 1,800 acres of bottomland hardwoods would have
been lost.
---------------------------------------------------------------------------
\6\ Contrary to appearances, windrows are composed primarily (at
least 85%) of redeposited soil rather than wood. Swindel, B.F., et al.,
Windrowing Affects Early Growth of Slash Pine in Southern Journal of
American Forestry'' 81-83 (May 1986).
---------------------------------------------------------------------------
Similarly, the Chicago Mill and Lumber Company obtained assurances
from the Vicksburg District that it could clear approximately 45,000
acres (which consisted mainly of bottomland hardwoods) in the
Mississippi alluvial valley without a Sec. 404 permit. The adjacent
65,000 acres was not cleared and is now a wetlands preserve, the Tensas
National Refuge. The Vicksburg District also informed International
Paper Company that it could ditch and drain approximately 1,000 acres
of wetlands in the Homochitto River Delta in Mississippi without a
permit as long as most of the excavated soils and vegetation were
removed to uplands. The International Paper Company proposed to use
draglines on mats and to haul the excavated vegetation and soils to
upland areas. The Company abandoned the project when it learned that
the Vicksburg District planned to conduct inspections to ensure that
only a ``de minimis'' amount of soils and vegetation were redeposited
into the wetlands.
The Charleston District of the Corps informed Larry Hunter that a
Sec. 404 permit was not required for his proposed coquina mining
operation in Bear Swamp in Horry County, South Carolina (Defender Mine
#3). The Charleston District stated that no permit was necessary
because Mr. Hunter proposed to load the excavated wetlands onto trucks
and dispose of them in uplands off-site. He excavated 16 acres of
bottomland hardwoods without a Sec. 404 permit. Mr. Hunter was
prosecuted for his activities because he redeposited a significant
amount of excavated soils and vegetation into the wetlands.
b. New England has also suffered from the ``de minimis''
loophole.--A notable example of evading the wetlands regulations is
happening right now in Maine.
The New England District of the Corps recently informed Dragon
Products Company that it did not need a Sec. 404 permit to bulldoze 34
acres scrub-shrub wetlands in Thomaston Maine over a cliff. Dragon
Products wanted to remove the wetlands in order to expose underlying
limestone which it planned to mine. The New England District stated
that it did not believe that the Corps' landclearing RGL applies
because the landclearing is not being conducted to convert wetlands to
agriculture. EPA Region I informed the New England District that a
Sec. 404 permit is required because the bulldozer will inevitably
redeposit some soil into the wetlands as it clears them. EPA and Corps
Headquarters staff agree that Dragon Products must seek a Sec. 404
permit. At present, Dragon Products, however, is bulldozing these
wetlands without a Sec. 404 permit. Moreover, Dragon Products intends
to conduct similar landclearing operations in other wetlands in Maine.
c. Thousands of acres of prairie wetlands have been destroyed in
the Midwest through ``de minimis'' loophole.--The Midwest has suffered
extensive losses of extremely valuable prairie wetlands habitat due to
unregulated draining. In just a four year period (from 1964-1968), an
estimated 125,000 acres of prairie potholes were drained in Minnesota
and North and South Dakota. U.S. FWS, Report on Drainage Trends in the
Prairie Pothole Region of Minnesota, North Dakota and South Dakota
(March 1986). In all, 90% (90 million acres) of potholes in Minnesota
have been drained and almost 60% (4 million acres) of potholes in the
Dakotas have been converted to cropland. Feierabend, Status Report on
Our Nation's Wetlands (October, 1987).
Prairie potholes are extremely valuable wetlands. In fact, they are
the most valuable inland marshes for waterfowl production in North
America. Tiner at 42. Although the prairie pothole region accounts for
only 10% of the continent's waterfowl breeding area, it produces 50% of
the duck crop in an average year. Id. The North American Waterfowl
Management Plan targets the preservation and restoration of prairie
potholes as a crucial component to waterfowl recovery.
Destruction of prairie wetlands through drainage (or even
excavation) has had dramatic adverse effects upon the environment. This
habitat destruction has greatly contributed to severe declines in
waterfowl and waterbird populations. For example, from 1966-1991,
Franklin's gull has experienced a 99% decline in population. During the
same period, there was a 85% decline in the black tern population.
Moreover, the pintail duck population in North and South Dakota
declined by 80% during this period. Destruction of prairie potholes
also increases downstream flooding by eliminating the floodwater
retention capacity of these wetlands. Pothole loss also increases
flooding, reduces groundwater recharge, and, by removing these natural
filters for agricultural chemicals, dramatically degrades drinking
water quality (most residents in rural Minnesota and North and South
Dakota depend upon groundwater for drinking water). Searchinger, et
al., How Wet Is a Wetland? 62-64 (1992).
The White Spur case provides an apt example of the magnitude of
wetlands destruction under the ``de minimis'' loophole. In 1986, the
Corps' Bismark, North Dakota Regulatory Office informed the Bottineau
County Water Management Board (Bottineau County) that it was aware that
Bottineau County was planning to drain 2,000 acres of prairie wetlands
in the White Spur subwatershed without a Sec. 404 permit. The Corps
stated no Sec. 404 permit would be required for the drainage unless the
excavated soil was sidecast into wetlands. In response to a request by
Bottineau County, the Corps delineated the wetlands on the property.
Several years later, the Corps issued a cease and desist order. The
only reason the cease and desist order was issued was because NWF
catalogued extensive piles of excavated soils that Bottineau County had
sidecast into wetlands as it ditched and drained wetlands.
In another case of wetlands destruction under the ``de minimis''
loophole, approximately 100 acres of prairie wetlands in Stearns
County, Minnesota were ditched and drained without a Sec. 404 permit.
The St. Paul District of the Corps did not require a Sec. 404 permit
because the landowner stated that the excavated fill would be loaded
into trucks and dumped in upland areas. Photographs of the excavation
process reveal that excavated soil fell off of the bucket of the
backhoe (and into the wetlands) as the backhoe was loading soil into
the trucks. The St. Paul District determined that this was ``de
minimis'' incidental discharge and did not require a Sec. 404 permit
for this activity.
Finally, in the Yellow County Medicine Ditch #18 case, the St. Paul
District determined that a landowner could dig trenches and insert
drain tile in order to drain prairie wetlands without a Sec. 404
permit. The St. Paul District determined that no permit was necessary
because the landowner planned to haul most of the excavated soils to
upland areas. It determined that the small amounts of excavated soil
that were redeposited in the trench were ``de minimis'' and, thus, did
not require a Sec. 404 permit.
Thus, these and many other cases demonstrate that the failure to
regulate ``de minimis'' discharges is taking a heavy toll on wetlands
and other waters of the United States. The ``de minimis'' loophole must
be closed now before the integrity of more of our waters is degraded or
destroyed.
B. The Proposed Rule Promotes Fairness, Consistency, and Improves
Administrative Efficiency
The environmental community urges EPA and the Corps to finalize the
proposed rule because, in addition to furthering the goals and purposes
of the Clean Water Act, it will materially improve the fairness,
consistency, predictability, integrity and administrative efficiency of
the Sec. 404 program by closing the ``de minimis'' loophole. As EPA and
the Corps explain in the preamble (57 Fed. Reg. 26894), Corps guidance
has not been clear or uniform among the Corps district offices
regarding activities involving discharges of dredged excavated material
into waters of the United States.
The Corps has consistently regulated ditching activities where
excavated material was sidecast into wetlands or other waters of the
United States. See e.g., United States v. Sargent County Water Resource
District, Civ. No. A3-88-175 (SE ND); see supra the White Spur case.
Yet, as discussed at length above, many Corps districts have failed to
regulate where only ``de minimis'' discharges occur during ditching or
other excavation of wetlands. It is extremely counterproductive and
inequitable to discriminate between these two factual situations: both
involve a discharge into waters of the United States, both destroy
wetlands, and both undermine the CWA goal to restore and maintain the
integrity of the waters of the United States.
Furthermore, Corps districts have been inconsistent in regulating
activities that involve ``de minimis'' incidental discharges. For
example, from 1979 until 1990,\7\ the Vicksburg District of the Corps
only regulated landclearing activities that entailed ``de minimis''
discharges in western Louisiana; the exact same activity was not
regulated by the Vicksburg District in the rest of Louisiana,
Mississippi and Arkansas. The Vicksburg District regulated landclearing
activities in western Louisiana due to the ruling in Avoyelles
Sportsmen's League, Inc. v. Alexander (Avoyelles I), 473 F. Supp. 525
(W.D. La. 1979), aff 'd, 715 F.2d 897 (5th Cir 1983), that landclearing
activities had involved jurisdictional discharges of soil into waters
of the United States. Similarly, the Buffalo, Huntington, and
Pittsburgh Districts of the Corps have uniformly determined that
incidental ``de minimis'' discharges trigger the Sec. 404 permitting
requirements in northern, but not southern Ohio. The Corps Districts
regulate incidental ``de minimis'' discharges in northern Ohio due to
the ruling in Reid v. Marsh, 14 ELR 20231, 20234 (N.D. Ohio 1984), that
Sec. 404 extends to ``de minimis'' discharges.
---------------------------------------------------------------------------
\7\ In 1990, the Corps issued Regulatory Guidance Letter 90-05,
``Landclearing Activities Subject to Section-404 Jurisdiction'' (RGL
90-05), 57 Fed. Reg. 6591.
---------------------------------------------------------------------------
Further inequities have been engendered by the fact that there is
no set definition of ``de minimis,'' and, thus, the determination as to
what constituted a ``de minimis'' discharge varies depending upon the
staff person. It is patently unfair to tolerate this inconsistency
between, and within, Corps districts as to whether or when to regulate
activities that involve incidental ``de minimis'' discharges into
waters of the United States--the standard for regulated activity should
be consistent throughout the country. Moreover, the arbitrary
application of the ``de minimis'' loophole has decreased the public's
respect for the Sec. 404 program. Finally, inconsistent determinations
have made the program unpredictable and have, thereby, contributed to
the frustration the regulated community feels with the Sec. 404
program.
A further reason to close the ``de minimis'' loophole is because of
the adverse effect it has upon the Corps. Too much Corps staff time has
been consumed by numerous inquiries from members of the regulated
public who are understandably uncertain as to whether excavation
activities they are contemplating are jurisdictional. Moreover, there
have been numerous instances, such as in the Tulloch case, where Corps
staff have been reduced to coaching individuals as to how to use the
``de minimis'' loophole to evade the Sec. 404 permitting requirements.
This is an irrational result for an agency which is charged with
responsibility for administering a permit program to protect
wetlands.\8\
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\8\ We understand that the proposed rule may create more work
initially for the Corps by clarifying that ``de minimis'' discharges
are regulated. However, we believe that any increase in workload will
be-more than offset by eliminating the inefficiency and uncertainty
engendered by the present rule and by issuing general permits.
---------------------------------------------------------------------------
The proposed rule will replace the ``de minimis'' loophole with a
clear, easy-to-apply, bright line rule that Corps districts can
consistently and efficiently apply. This will make the program more
predictable for the regulated community. It will also reduce the Corps'
workload. Most importantly, however, it will ensure that more wetlands
receive the protection they are entitled to under the Clean Water Act.
Finally, by making the Sec. 404 program more effective, the
proposed rule will also make participation in the Sec. 404 program more
attractive to states. This comes at a critical juncture as many states
are determining whether to promulgate wetlands water quality standards
for use in Sec. 401 programs prior to the 1993 deadline imposed by EPA.
C. Further Clarification in the Preamble Is Necessary
The preamble invites comment on the definition of the term
``degrade'' in the proposed rule. 57 Fed. Reg. 26896. The preamble
states that ``degradation of a wetland or other water of the United
States would occur when the activity that involves the discharge
results in an identifiable decrease in the functional values of the
waters of the United States.'' Id. The preamble further states that
``[t]he proposed definition of ``degradation'' is intended to define a
threshold which excludes from regulation certain activities that would
have no identifiable adverse effect on waters of the United States.''
Id. (emphasis added).
The environmental community contends that a better and more
consistent approach would be to solely define the threshold test for
degradation as an identifiable adverse effect that the proposed
activity is likely to have upon wetlands or other waters of the United
States. The preamble should be revised to state that ``degradation of a
wetland or other water of the United States occurs when the proposed
activity that involves a discharge would likely cause an identifiable
adverse impact to the water of the United States.'' This test will be
clearer and easier to implement because the Sec. 404(b) (1) Guidelines
requires the Corps to focus upon potential adverse effects upon waters
of the United States. This is also more consistent with Sec. 404(b),
(c), and (e), which focus on adverse effects.
The environmental community supports the agencies' decision to
apply a rebuttable presumption that mechanized landclearing, ditching,
channelization, and other excavation activities in waters of the United
States would have an adverse effect upon waters of the United States.
57 Fed. Reg. 26896. As our prior discussion of the need for the
proposed rule amply demonstrates, these activities invariably have
adverse effects upon waters of the United States. In fact, as the
examples we discussed attest, these adverse effects are often extensive
and severe. The environmental community also agrees with the agencies'
statement that it is not possible to conduct mechanized landclearing,
ditching, channelization, and other excavation activities in waters of
the United States without redepositing some excavated material into
waters of the United States. 57 Fed. Reg. 26896.
The agencies need to provide further clarification and support if
they are going to state that the proposed rule generally will not
result in the Corps regulating snagging operations. 57 Fed. Reg. 26897.
It is unclear how the agencies are defining ``snagging operations''
(e.g., how trees and vegetative matter are removed). Furthermore,
snagging operations would appear to generally entail redeposits of soil
or vegetation into wetlands. Redeposits of vegetation into waters of
the United States constitute discharges that trigger the Sec. 404
permitting requirements. See Avoyelles III, 715 F.2d at 923. The
agencies need to address the issue of whether snagging operations
generally entail redeposits of soil or vegetation into waters of the
United States, and they need to clarify that a snagging operation would
require a Sec. 404 permit if soil or vegetation is redeposited into
waters of the United States (the current language simply provides that
snagging operations are jurisdictional if they entail a redeposit of
soil into waters of the United States).
Finally, the environmental community requests the agencies to add
language in the preamble clarifying that landowners cannot evade the
Sec. 404 permitting requirements by using drain tiles to dewater
wetlands. Like ditching, channelization and mechanized landclearing,
wetlands are excavated in order to insert the tile into wetlands. As
the Yellow County Medicine Ditch #18 case discussed above illustrates,
incidental discharges occur in digging trenches to insert drain tiles
and vast amounts of valuable wetlands are often destroyed. The
discharges of excavated soil are inevitable in digging trenches just as
they are inevitable in digging drainage ditches or channels. We-believe
that ``de minimis'' discharges also occur when drain tiles are plowed
or ``knifed'' into wetlands.\9\ Moreover, wetlands destruction is the
ultimate, inevitable, and intended result of this draining methodology.
Accordingly, the proposed ``de minimis'' rule should apply to the
insertion of drain tiles, and the preamble should clearly state that it
does.
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\9\ Even if they did not, we contend that the insertion of tiles
should, like pilings, be regulated as fill.
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ii. pilings rule
A. A Final Rule Must Be Adopted To Order to Close the Pilings Loophole
The environmental community urges EPA and the Corps to adopt the
proposed pilings rule without change. The proposed pilings rule will
close another loophole--the use of pilings as a substitute for fill.
Some people have avoided the Sec. 404 permitting requirements by
placing pilings into waters of the United States rather than fill. They
use the pilings to provide a foundation for homes or other-buildings or
use the pilings for dikes or dams. These projects have the same effect
as fill. For example, these pilings projects destroy wetlands habitat,
flora and fauna and by replacing aquatic areas, by altering the flow or
circulation of waters, by increasing sedimentation, and by shading
formerly sunny areas. Moreover, such pilings projects often affect
valuable coastal wetlands and can affect large tracts of wetlands.
The Corps guidance attempts to close the pilings loophole. See
Corps Regulatory Letter 90-08, ``Applicability of Section 404 to
Pilings'' (RGL 90-08), 57 Fed. Reg. 6589. To close the pilings loophole
once and for all, however, EPA and the Corps need to finalize the
proposed pilings rule. RGL 90-08 is only a non-binding guidance
document, which will expire in one year, on December 31, 1993. Once
finalized, the proposed pilings rule will finally close the pilings
loophole because it will have the force and effect of law and no
expiration date.
The need to replace RGL 90-08 with a pilings rule is underscored by
the Tulloch case. In July 1990, the Wilmington District of the Corps
authorized Landfall to construct a wooden weir in jurisdictional
wetlands on the Pembroke Jones Park site without a Sec. 404 permit. The
Wilmington District stated that no Sec. 404 permit was required even
though the current Corps guidance stated that a permit would be
required. See Corps Regulatory Guidance Letter 80-14, ``Applicability
of Section 404 to Piles'' (RGL 88-14) (the predecessor to RGL 90-08).
Landfall built the weir in August, 1990. It is made of solid wood
construction with horizontal reinforcements that replaces
jurisdictional wetlands with solid material. The weir functions as a
dam to inundating at least 2.3 acres of wetlands to create open water
ponds that function as water hazards on the Pembroke Jones Park golf
course, storm water collection devices and sources of irrigation water.
This is not the type of structure that Corps' guidance advised was not
regulated--RGL 88-14 only stated that open pile structures that do not
function as fill are not regulated. Replacing pilings guidance with a
pilings rule will eliminate this problem.
B. Adopting the Pilings Rule is Necessary to Further the Goals and
Purposes of the Clean Water Act
Adoption of the proposed pilings rule is critical to full
implementation of the Clean Water Act. As discussed above, the Clean
Water Act is a ``comprehensive legislative attempt to ``restore and
maintain the chemical, physical, and biological integrity of the
Nation's waters.'' See supra at 3 (quoting Riverside Bayview Homes, 474
U.S. at 132). In order to achieve this goal, the Act absolutely
prohibits the discharge of dredged or fill materials into wetlands or
other waters of the United States, except in compliance with a
statutory exemption or a Sec. 404 permit. 33 U.S.C. Sec. Sec. 1311(a),
1344. Accordingly, where the placement of pilings into waters of the
United States constitutes fill, this discharge of fill requires a
Sec. 404 permit.
C. The Proposed Rule Rationally Defines the Instances in Which
Placement of Pilings Constitutes Discharge of Fill
The proposed rule correctly defines when the placement of pilings
into waters of the United States constitutes discharge of fill. 57 Fed.
Reg. 26898. It provides that pilings projects have the ``physical
effect of fill'' where they ``in effect replace an aquatic area or
change the bottom elevation of a waterbody as a result of the placement
of pilings that are so closely spaced that sedimentation rates are
increased or the pilings themselves essentially replace the bottom.''
Id. This directly applies the definition of ``fill material'' to the
placement of pilings. See 33 C.F.R. Sec. 323.2(e); 40 C.F.R.
Sec. 232.2(i) (``The term `fill material' means any material used for
the primary purpose of replacing an aquatic area with dry land or of
changing the bottom elevation of a waterbody.'')
The proposed rule further provides that pilings projects have the
``functional use and effect of fill'' where they ``would result in
essentially the same effects as fill (e.g., alter flow or circulation
of the waters, bring the area into a new, non-aquatic use, or
significantly alter or eliminate aquatic functions and values).'' 57
Fed. Reg. 26898. This description of the effects of fill is derived
from the Sec. 404(b) (1) Guidelines (40 C.F.R. Sec. 230 Subparts B-F)
and Sec. 404(f)(2). Thus, the proposed rule prop-
erly implements the Clean Water Act mandate to regulate the discharge
of fill by applying existing law to determine the instances in which
placement of pilings constitutes discharge of fill.
D. The Scope of the Proposed Rule Must Not Be Contracted
The proposed rule provides apt examples of instances in which
pilings have the physical effect or functional use and effect of fill:
(i) ``pilings placed in waters of the United States for dams, dikes, or
other structures utilizing densely spaced pilings, or as a foundation
for large structures;'' (ii) ``placement of pilings to facilitate the
construction of office and industrial developments, parking structures,
restaurants, stores, hotels, multi-family housing projects, and similar
structures in waters of the United States.'' 57 Fed. Reg. 26898-26899.
Experience demonstrates that these are appropriate examples in which
pilings are used as a substitute for fill.
For instance, prior to the issuance of RGL 88-14, the Charleston
District of the Corps, helped a landowner evade the Sec. 404
regulations by using pilings to substitute for fill. The landowner
applied for a Sec. 404 permit to use fill to repair a millpond dam. The
Charleston District denied the Sec. 404 application, but advised the
permit applicant that he could evade the Sec. 404 permit requirements
by using pilings as a substitute for fill. Moreover, the Galveston
District of the Corps does not require landowners to obtain Sec. 404
permits when they insert pilings in lieu of fill for foundations of
buildings.
The preamble states that the Corps is considering modifying the
proposed rule to state that construction of some restaurants on pilings
does not entail discharge of fill material to waters of the United
States. 57 Fed. Reg. 26897. We can see no basis for exempting
construction of certain restaurants from the proposed rule. The
agencies provide no rationale in the preamble for deviating from
current Corps guidance in this manner. 57 Fed. Reg. 6593-6594. There is
no variation in pilings placement that we know of that would indicate
that some restaurants built on pilings are not built on the equivalent
of fill. There must be a sound factual basis for any decision the
agencies make not to regulate construction off certain restaurants on
pilings. The Clean Water Act cannot be properly implemented absent
comprehensive regulation of discharges of fill material. Moreover,
failure to evenhandedly regulate restaurant construction on pilings
will perpetuate exactly the type of inequity, inconsistency, and
administrative confusion that the proposed rule is intended to
eliminate.
iii. conclusion
The environmental community vigorously endorses the proposed
regulations to eliminate the ``de minimis'' and the pilings loopholes.
We strongly support the proposed clarification that Sec. 404 of the
Clean Water Act is triggered by excavation activities that involve
incidental discharges into waters of the United States. The
environmental community contends that this proposed rule is critical to
fully implementing the Clean Water Act and to achieving the goal of
maintaining the integrity of the Nation's waters. We further contend
that now is the time to finalize the proposed rule because, as the
Tulloch case illustrates, vast amounts of valuable wetlands are being
lost through the ``de minimis'' loophole.
The environmental community strongly supports the proposed
codification of current Corps' policy on the placement of pilings as a
substitute for fill. in waters of the United States. We contend that
replacing the current guidance with a final rule will further
implementation of the Clean Water Act by clarifying that, as a matter
of law, a Sec. 404 permit is necessary before pilings can be used lieu
of fill in waters of the United States.
Respectfully submitted,
Apphia T. Schley, Counsel,
Janice L. Goldman-Carter, Of Counsel,
Fisheries and Wildlife Division, National Wildlife Federation.
Derb S. Carter, Jr., Counsel,
Southern Environmental Law Center.
John Echeverria, General Counsel,
National Audubon Society.
Jessica C. Landman, Senior Attorney,
Natural Resources Defense Council.
Maitland Sharpe, Executive Director,
Izaak Walton League.
______
North Carolina Coastal Federation,
Newport, NC, June 13, 1997.
Chairman James Inhofe,
Clean Air, Wetlands, Private Property and Nuclear Safety Subcommittee,
Senate Environment and Public Works Committee, Washington, DC.
re: submitted for the record of the upcoming hearing on recent
administrative and judicial developments in the clean water act section
404 wetlands program
Dear Chairman Inhofe: Please include this written testimony and the
enclosed letters in the record of the hearing on Recent Administrative
and Judicial Developments in the Clean Water Act 404 Permit Program
(CWA 404), held before the Clean Air, Wetlands, Private Property, and
Nuclear Safety Subcommittee of the Senate Environment and Public Works
Committee.
Coastal North Carolina's economy relies on the fisheries industry
and the tourist industry. Both industries rely upon clean, healthy
water and productive, viable habitats. Wetlands provide significant
protective functions for our water quality. Wetlands serve naturally as
a sink for nutrients, sediment and pollutants. They serve as a
protective buffer between land and water-protecting the water from our
actions on land. Wetlands also protect land from flooding. Losses of
wetlands will destroy whole habitats, and ecosystems--all mainstays to
our coastal economies.
(1) We urge this Subcommittee to support the U.S. Army Corps of
Engineers' (Corps) decision to eliminate within two years the
nationwide permit 26 (NWP 26). NWP 26 is the largest source of
permitted wetlands' loss in the CWA 404 wetlands protection program.
NWP 26 authorizes the destruction of isolated wetlands and headwater
streams with no warning to the public and virtually no environmental
review. Isolated wetlands help purify and recharge drinking water
supplies and provide essential habitat for fish and wildlife. Headwater
streams protect water quality in our watershed and reduce floods that
would otherwise destroy lives and property.
Last December the Corps decided to phase out NWP 26 over the next
two years. In reissuing NWP 26 with lower thresholds for the interim,
and promising to replace it with legal alternative nationwide permits,
the Corps has bent over backwards to minimize inconvenience to the
regulated community. The Corps' made a good move forward in their
decision to eliminate NWP 26 completely by December 1998. We encourage
you to monitor the Corps' progress to ensure they narrowly draft and
make environmentally protective as the Clean Water Act requires the
nationwide permits offered to replace NWP 26.
(2) We urge the Subcommittee, when CWA 404 reauthorization takes
place, to clarify that the Clean Water Act protects wetlands against
destruction by excavation, ditching, and draining, as well as by
filling. Some wetlands developers are relying on a January federal
district court case, American Mining Congress v. U.S. Army Corps of
Engineers, to claim that their excavation activities that destroy
wetlands are exempt from the Clean Water Act. The Corps, the
Environmental Protection Agency, and several environmental groups,
believe that the Corps does currently have authority to regulate
excavation of wetlands, and are appealing that case. Excavation damages
wetlands equally as much as filling them and excavation should be
regulated under CWA 404. No scientific controversy exists over this.
(3) During the reauthorization of the CWA 404, we urge the Senate
to commit to preserving wetlands protections, respecting sound science,
and increasing government accountability to the citizens. Proposals to
change the definition of wetlands, establish wetland classification
schemes, or exempt various special interests, are not a part of
responsible wetlands protection. We urge you to stress the primacy of
avoiding unnecessary destruction of wetlands of all kinds and of
keeping wetlands permitting decisions transparent to the public.
Thank you for your consideration of this testimony.
Sincerely,
Todd Miller,
Executive Director,
Laura Lynch,
Program Associate.
______
North Carolina Coastal Federation,
Newport, NC, January 29, 1997.
Preston Howard,
Division of Environmental Management, Raleigh, NC.
John Dorney,
Division of Environmental Management, Raleigh, NC.
Wayne Wright,
U.S. Army Corps of Engineers, Wilmington, NC.
Steve Benton,
Division of Coastal Management, Raleigh, NC.
Dear Sirs: The North Carolina Coastal Federation is writing to
respectfully request that North Carolina deny state water quality
certification to the Army Corps of Engineers' Nationwide Permit 26 (NWP
26) for wetland-filling development activities under section 401 of the
Clean Water Act.
The Corps of Engineers has just reissued NWP 26, the single biggest
source of wetlands loss in America. This type of permit allows
developers to fill wetlands with little or no regulatory review, no
analysis of alternatives, and no public input, so long as the wetlands
are located in isolated and headwater areas.
The North Carolina Coastal Federation objects to the issuance of
the NWP 26. We encourage the Division of Environmental Management to
deny the 401 Certification for the proposed NWP. This permit conflicts
with Governor Hunts Save Our COAST agenda and the recommendations of
the Coastal Futures Committee. Coastal water quality problems and
recent fish kills demonstrate the vital importance of wetlands. We
should do everything in our power to protect what is left of our
wetlands.
Coastal North Carolina's major economic base is in fisheries
industry as well as the tourist industry. Both industries rely upon
clean, healthy water and productive, viable habitats. Wetlands, which
will be destroyed if the NWP is enacted, provide significant protective
functions for our water quality. Wetlands serve naturally as a sink for
nutrients, sediment and pollutants. They serve as a protective buffer
between land and water thus protecting the water from our actions on
land.
By interpretation of the North Carolina State Attorney General,
wetlands are waters of the State. North Carolina's Antidegredation
Policy (15A NCAC 2B .0201) states that existing uses shall be
protected. Filling wetlands will cause losses of their uses; filtering
nutrients, sediments and pollutants, flood protection and habitat.
We are very pleased that the Corps has decided to abolish Permit 26
after two years, but we are very concerned about the additional
unnecessary wetland loss the Permit 26 will cause over the next two
years. The Corps's decision to drop from ten to three acres the acreage
cap for individual activities authorized under NWP 26 will do very
little to protect wetlands, since at least 90% of the development
activities authorized by Permit 26 are less than three acres in size
and thus will go forward in the next two years as they always have
under this permit.
We urge you to deny state water quality certification for Permit
26. Denial of 401 certification will send the strong signal that the
Corps must follow through as quickly as possible on its commitment to
abolish Permit 26 for good. Denial of water quality certification will
also put our state in a position to insist that the Corps add
additional conditions to the use of Permit 26 in North Carolina over
the next two years, to better protect our wetlands and water quality.
For the same reasons and because wetlands pay such a crucial role
in North Carolina's coastal ecosystems, we also urge the state to deny
Permit 26 a consistency concurrence under the Coastal Zone Management
Act.
We are also enclosing previous comments concerning Nationwide
Permit 29. The Federation respectfully requests North Carolina deny
water quality certification of Permit 29 based on the points made in
the following letter.
Laura Lynch,
Program Associate.
______
North Carolina Coastal Federation,
Newport, NC, September 20, 1995.
Wayne Wright,
U.S. Army Corps of Engineers, Wilmington, NC.
John Dorney,
Division of Environmental Management, Raleigh, NC.
Steve Benton,
Division of Coastal Management, Raleigh, NC.
Dear Sirs: I am writing to discuss the Single-Family Housing
Nationwide Permit (NWP) the Corps of Engineers published on July 27,
1995 in the Federal Register.
The North Carolina Coastal Federation objects to the issuance of
the NWP. We encourage the N.C. Division of Environmental Management to
deny the 401 Certification for the proposed NWP. This permit conflicts
with Governor Hunts Save Our COAST agenda and the recommendations of
the Coastal Futures Committee. Coastal water quality problems and fish
kills this summer demonstrate the vital importance of wetlands. We
should do everything in our power to protect what is left of our
wetlands--not use that power to be issuing new mandates that permit
their destruction.
There are numerous points that make this permit unsuitable for
North Carolina's coastal zone:
(1) The NWP will have irreparable impacts on the environment and
economy of coastal North Carolina;
(2) As waters of the state, wetlands provide existing uses
protected by the North Carolina Antidegradation Policy that will not be
protected by this NWP;
(3) The subdivisions clause in the NWP will allow greater
destruction of wetlands than presently permitted;
(4) Comments made by N.C. Division of Coastal Management staff
emphatically state the permit should be denied;
(5) The NWP contains inadequate provisions for monitoring,
enforcement or substantial requirements for the protection of water
resources.
Coastal North Carolina's major economic base is in fisheries
industry as well as the tourist industry. Both industries rely upon
clean, healthy water and productive, viable habitats. Wetlands, which
will be destroyed if the NWP is enact, provide significant protective
functions for our water quality. Wetlands serve naturally as a sink for
nutrients, sediment and pollutants. They serve as a protective buffer
between land and water thus protecting the water from our actions on
land. The NWP will simply allow these resources to be destroyed in
small portions with little or no monitoring. The final accumulative
impact of the loss of these individual portions will destroy whole
habitats, ecosystems and fisheries, all mainstays to our local
economies.
The public notice for the NWP gives no meaningful justification for
how it will have not have major impacts on our non-tidal waters and
wetlands. The only justification is the statement that ``this
notification is required to ensure that activities authorized by this
nationwide permit have no more than minimal individual and cumulative
impacts on the aquatic environment.'' Any impact at all in small
portions all along our coast will add up to major destruction of this
important habitat. The NWP will allow significant impacts along our
state's waters.
By interpretation of the North Carolina State Attorney General,
wetlands are waters of the State. North Carolina's Antidegredation
Pdlicy (15A NCAC 2B .0201) states that existing uses shall be
protected. Filling wetlands will cause losses of their uses; filtering
nutrients, sediments and pollutants, flood protection and habitat. The
loss of these uses can be protected by avoiding impacts, minimizing
impacts and mitigating for losses. This process should be an intricate
part of the permit. It is not.
The NWP exempts subdivisions permitted prior to 1991 from the \1/2\
acre cumulative impact restriction. An abundance of projects were
permitted before 1991 and are still waiting to build. This exemption
will allow large amounts wetlands to be filled. In addition, the lack
of monitoring and enforcement will mean that even for projects
permitted after November 1991, there will be major wetland losses.
I am enclosing a memorandum from Terry Moore in which he
emphatically states this NWP should be denied. He makes 12 points that
justify why the NWP should not be allowed. He notes in point (3) and
(4) how previously unallowable uses of filled wetlands are possible. He
states that septic fields can be placed in poorly drained soil and
septic tanks may be placed in filled wetlands.
The NWP process contains no monitoring of impacts prior to, during
or after a project. At present we are already losing this important
habitat. The permit decision is based upon the permittee's own
assessment. The permittee himself writes his own judgment of what
``direct and indirect adverse environmental effects the project would
cause'' upon which a decision to permit is made. There are not enough
staff resources in any division, state or federal, to protect our
present resources. We should not allow further permits that will
destroy waters and wetlands. This new permit will allow more losses
with even less oversight by any regulatory agency.
The NWP for Single-Family Housing allows development to come closer
to valuable functioning wetlands than permitted before. Overall, it
allows more direct secondary impacts from new homes, more people, and
septic systems built too close that will result in wetlands, estuarine
and habitat loss.
Sincerely,
Laura Lynch,
Program Associate.
______
MEMORANDUM
TO: Steve Benton
FROM: Terry Moore
DATE: 17 April 1995
SUBJECT: Project Number DCM95-18 Dated 3/30/95; Proposed Single Family
Housing Nationwide Permit
I have reviewed the above referenced Nationwide Permit for Single
Family Housing and offer the following comments:
(1) \1/2\ acre at a time, this permit will allow consumption of
natural storage areas for flood waters in what are already flood prone
areas. This applies to areas all over the state, including the coastal
area.
(2) Not only will it reduce flood storage capacity, it will deprive
the wetlands of one of its significant natural functions, that of
nutrient absorption, or from acting as a sink for nutrients, sediments,
and other pollutants associated with storm water run off. These
nutrients, sediments, and associated pollutants will then be diverted
or concentrated in the area of stream itself which empties into our
estuaries. The long term result may be more and larger shellfish
closure areas with temporary closures resulting from storm events also
increasing in frequency and duration.
(3) The problem of reduced flood storage capacity is a direct
result of this permit; however implementation of the permit will
further compound the problems of sediments, nutrients, and pollutants
that will result from single family development in these areas. Not
only will you have a new and direct source of fertilizers, phosphates,
detergents, oils, pesticides and herbicides, this permit allows for
``septic fields'' which would be installed in what is already by
definition a poorly drained soil. This will increase the potential for
fecal contamination from a septic system in wetlands, not to mention
what new animal operations that might be associated with the
development.
(4) While working with State Environmental Health representatives
in the field, I have repeatedly been told that it's against state
regulations to install a septic tank in filled wetlands and that is
exactly what this permit is encouraging.
(5) This general permit will allow for additional consumption and
fragmentation of wildlife habitat. Wildlife is and has been gradually
displaced into remaining wetland areas and this proposal will now begin
interrupting these.
(6) Numerous lots have been subdivided in wetlands in the coastal
area. Many lots have been subdivided and built upon with only enough
highground to accommodate actual house construction. Lots of this
description are common in the coastal area and they are adjacent to our
estuaries and tributaries. This permit will now allow these individuals
to go fill up to \1/2\ acre of 404 wetlands, which in most cases is the
transition area between the higher ground and coastal wetlands.
(7) This permit will allow for the filling of previously
undevelopable hummocks surrounded by coastal wetlands. This will
increase both direct and indirect pressures on our estuarine system.
(8) This permit will allow the filling of swales in our maritime
forest, which in essence would defeat part of the purpose for maritime
forest protection (i.e., groundwater recharge). Again, numerous lots
have been platted and subdivided in these areas.
(9) To allow filling of 404 wetlands (the transition area between
higher ground and coastal wetlands) will again serve to block the
natural retreat of shoreline and coastal wetlands. Thus the long range
result will be reduced estuary, reduced coastal wetland and reduced
estuary productivity.
(10) This permit says ``The Corps believes that this nationwide
permit has minimal individual and cumulative adverse impacts on the
aquatic environment.'' How can the Corps evaluate cumulative impacts
when by their own admission they keep no record of the number of
nationwide or general permits issued. The proposed permit itself
explains there will be ``little to no paperwork''. Therefore I
question, if you don't even know how many permits you're issuing, you
have no monitoring procedures or staff to do so, how do you document
minimal impact? The obvious impact is a reduction of wetlands adjacent
our estuaries and reduced wildlife habitat.
(11) The Corps also explains that for the purpose of this
nationwide permit ``the acreage of loss of waters of the United States
includes the filled area plus any other waters of the United States
that are adversely affected by flooding, excavation or drainage as a
result of the project.'' This is a ridiculous statement. There is no
effort put forth or staff assigned to monitor the impacts (direct or
indirect) of Corps Nationwide or General permits. This suggestion is
just as big a farce as the minimal cumulative adverse impact statement.
(12) The Corps allows ``stacking'' of their Nationwide or General
permits. Therefore, don't think the project impact would be limited to
the \1/2\ acre suggested in this permit. The applicant could stack as
many permits as feasible such as Nationwide No. 18, No. 14, and
possibly others. The direct impact of the fill footprint could easily
end up being 1 or more acres.
I am opposed to the proposed Single Family Housing Nationwide
Permit. I recommend the permit be denied without prejudice in the 21
coastal counties, in the 25 mountain counties, and all remaining
counties in North Carolina. I recommend this permit be denied use
within the State of North Carolina.
______
Prepared Statement of the Pacific Coast Federation of Fishermen's
Associations
The Pacific Coast Federation of Fishermen's Associations (PCFFA) is
the largest organization of commercial fishermen on the west coast,
with member organizations from San Diego to Alaska. We represent
thousands of working men and women in the Pacific fishing fleet who
generate tens of thousands of jobs, as well as produce fresh, high-
quality seafood for America's tables and for export. The commercial
fishing industry is the economic mainstay of many coastal communities
throughout the Pacific coast. The commercial fishing industry whose
interests we represent accounts for several billion dollars annually in
economic interests, and more than 100,000 family wage jobs along the
north Pacific coast as well as far inland.
We are also a wetlands dependent industry. An estimated seventy-one
(71%) percent of this nation's entire commercial fish and shellfish
resource are wetlands dependent.\1\ An even larger share of inland
recreational fisheries are wetlands dependent. In fact this nation's
aquatic resources generate approximately $111 billion/year to our
nation's economy in both commercial and recreational fishing activities
nationwide. Without protection of this nation's wetlands, however, much
of this economic resource would simply disappear.
---------------------------------------------------------------------------
\1\ From the EPA Office of Wetlands' estimates of value of
commercial landings derived from species that during their life cycles
depend directly or indirectly on coastal wetlands.
---------------------------------------------------------------------------
To this nation's oldest industry--the commercial fishing industry--
the protection and restoration of wetlands, therefore, is about
protecting our jobs. Its about food production and food on America's
tables. Its about coastal economies and coastal employment. And
finally, its about commerce and exports.
why wetland protection means jobs
Fish do not arise from nowhere--they are part of and supported by a
complex and fragile ecosystem. The vast majority of commercially
valuable species depend for some portion of their biological lifecycle
on inland, near shore or estuary wetlands--these are their nursery
grounds. Let me give you some examples. Salmon, for instance, are
hatched from eggs laid in inland freshwater gravel beds sometimes
hundreds of miles from the ocean. The young salmon then make their long
immigration downriver to the ocean where they will eventually grow to
adulthood and return to spawn, but along the way they depend upon back
channel wetlands as a food source, for shelter from predators and (in
the case of coho salmon) they need these wetlands to provide
``overwintering'' habitat to nourish them for up to 18 months.\2\ Even
then they depend upon salt water wetlands to help them adapt to ocean
conditions. Their adaption from fresh to salt then back to fresh-water
fish is one of the most remarkable biological feats in the natural
world. However, without salt-water estuaries and salt marsh wetlands
within which to make the necessary biological changes, these
adaptations would be impossible and they would all die.
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\2\ Coho salmon overwinter for up to 18 months in the middle and
lower inland watershed, primarily in slackwater areas which are rich
feeding sources due to adjoining wetlands. One reason for coho salmon
now approaching extinction in many areas and being considered for
listing under the ESA is the widespread loss of wetlands throughout the
western U.S.
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Salmon are incredibly valuable to west coast economies. As recently
as 1988, the Pacific salmon fishing industry (including both commercial
and recreational portions of our industry) generated an estimated
62,750 family wage jobs, and more than $1.25 billion/year in economic
income to the Pacific Northwest and Northern California.\3\ This
represents a national resource of roughly $39.5 billion in economic
value from salmon harvests--just from northern California and the
Pacific Northwest alone.\4\
---------------------------------------------------------------------------
\3\ Figures from an independent economic study done by the Pacific
Rivers Council (January, 1992), The Economic Imperative of Protecting
Riverine Habitat in the Pacific Northwest. This study was based on
official federal salmon harvest figures for the 1988 baseline year
catch figures which were already far below the productive capacity of
prior years, reduced largely due to widespread habitat loss, including
wetlands losses regionwide, which reduced the number of juvenile salmon
able to be produced by damaged watersheds.
\4\ Calculating the present value of an income stream of $1.25
billion/year based an a 3% discount rate over 100 years.
---------------------------------------------------------------------------
Without adequate wetlands protection, however, much of the West
Coast salmon fishing industry would be doomed. Wetland losses to date
have already lost many west coast fishing jobs. According to official
federal statistics, Washington state has lost an estimated 31% of its
historic wetlands, Oregon another 38% and California a whopping 91% of
all its historic wetlands base. Counting coastal wetlands only, these
loss figures would be much greater. In the nine-state region of
Arizona, California, Hawaii, Idaho, Nevada, New Mexico, Oregon, Utah
and Washington, more than 59% of historic wetlands are now gone. These
wetland losses have already had a dramatic negative impact on salmon
and many other fishery resources throughout the west coast, costing
tens of thousands of jobs and hundreds of millions of dollars in
productive capacity.\5\
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\5\ Wetlands loss figures from Thomas Dahl, Wetland Losses in the
United States 1780's to 1980's, published by the U.S. Dept. of
Interior, Fish and Wildlife Service, Washington, DC. 21 pp. Wetland
losses in the western U.S. by state are: Arizona (36%); California
(91%); Hawaii (12%); Idaho (56%); Nevada (52%); New Mexico (33%);
Oregon (38%); Utah (30%) and Washington (31%). Those states with more
than 80% wetlands losses include: California, Ohio, Iowa, Indiana,
Missouri, Illinois and Kentucky. No state has lost less than 20% other
than Maine, Hawaii, New Hampshire and Alaska. All states, including
Alaska, continue to lose their wetlands at alarming rates.
---------------------------------------------------------------------------
To give another example, nowhere in the nation is the link between
wetland habitat and fish production more obvious than in the Gulf
states, where National Marine Fisheries Service scientists estimate
that 98% of the Gulf commercial harvest comes from inshore, wetlands
dependent fish and shellfish. Louisiana's marshes alone produce an
annual commercial fish and shellfish harvest of 1.2 billion pounds
worth $244 million in 1991.\6\ At this rate of return the Gulf shrimp
resource is worth roughly $7.7 billion dollars to the economy of those
states.\7\ Although by no means alone, Gulf shrimp clearly head the
list of the region's wetlands dependent food species. Without strong
wetlands protection this extremely valuable commercial fishery would
eventually no longer exist in those states.
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\6\ From EPA Office of Wetlands publication Economic Benefits of
Wetlands (February, 1995), taken from federal harvest figures.
\7\ Again, calculating the present value of an income stream of
$244 million/year at a 3% discount rate where N = 100 years.
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In the 103rd Congress there were various proposals to decrease
wetlands protection in the Clean Water Act. This alarmed the commercial
fishing industry a great deal. In response to that effort, PCFFA and
five other major fishing industry groups published a report on the need
for wetlands protection to assure our industrial job base. That report,
titled Fisheries, Wetlands and Jobs (March of 1994), makes clear the
value of wetlands for the production of bluefish, crab, halibut,
lobster, menhaden, pollack, salmon, shrimp, striped bass, trout and
many other species.\8\ Without strong wetlands protection--including
both a ``no-net-loss'' policy and restoration--much of the commercial
fishing industry will eventually be lost. A copy of that report is
attached to this testimony for the record.
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\8\ Fisheries, Wetlands and Jobs: The Value of Wetlands to
America's Fisheries. Coauthored and presented by Pacific Coast
Federation of Fishermen's Association, Atlantic States Marine Fisheries
Commission, Southeastern Fisheries Association, East Coast Fisheries
Foundation and Ocean Trust (March, 1994).
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In a report from the U.S. Department of Commerce, Office of the
Inspector General, it was noted that habitat loss (rather than
overfishing) is perhaps the single greatest threat the fishing industry
now faces:
``There is growing concern about the future economic
prospects of industries that depend on abundant fish and
shellfish stocks. Many of the past assessments of declining
stocks have cited overharvesting as the primary reason, but we
found that there is a growing concern within NMFS and the
fishing industry that overfishing is being overshadowed by an
even more significant threat: loss of fish habitat. * * *
``Since the loss of marine habitat is perhaps the greatest
long-term threat to the productivity of U.S. fisheries, we
believe that a strong habitat protection program--integrated
with habitat restoration and fishery management--is essential
for the health of our living marine resources and the economic
survival of the U.S. fishing industry.'' \9\
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\9\ U.S. Dept of Commerce, Program Evaluation, Mayor Initiatives
Needed to Protect Marine Habitats. Final Report, IRM-5442, January,
1994 (37 p.). Office of the Inspector General, Department of Commerce,
Washington, DC.
The current Director of NMFS, Rollie Schmitten, has also spoken
publicly on the importance of habitat protection to the commercial
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fishing industry, as follows:
``My central message today is that the protection of fish and
wildlife habitats is a national problem in critical need of
attention. * * * The assignment of endangered and threatened
status to many species is symptomatic of the cumulative,
ongoing nature of broad-based habitat deterioration. * * *
Habitat loss and degradation are the major factors contributing
to endangerment and extinction. * * * The war to conserve fish
and wildlife habitats is being lost.'' \10\
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\10\ 58th North American Wildlife and Natural Resources Conference,
Washington, DC 1993.
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``[O]ver the long term [nearshore ocean and estuarine fishery
habitat] loss is probably the greatest threat to marine fishery
productivity throughout the United States * * * Fisheries
management will be moot if habitat loss and degradation
destroys the productive potential and the quality of our living
marine resources.'' \11\
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\11\ National Symposium on Coastal Fish Habitat, Baltimore, MD,
1991.
In fact the war to protection fishery habitat is being lost. Even
under existing law, wetlands losses have not been halted, only the rate
of loss somewhat reduced. Habitat losses to date have already cost the
commercial fishing industry more than $27 billion/year and more than
450,000 jobs.\12\ On the other hand, habitat protection and
restoration--and in particular wetlands protection--would restore that
lost productivity and recapture those lost jobs to the economy. This is
part of the ``economic dividend'' to the country of wetlands and other
fish habitat protection.
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\12\ Job losses due to habitat degradation from Marine Fishery
Habitat Protection: A Report to the U.S. Congress and the Secretary of
Commerce, prepared by the Institute for Fisheries Resources, East Coast
Fisheries Foundation and Pacific Coast Federation of Fishermen's
Associations (March, 1994).
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Wetlands protection should not be seen, therefore, as a cost so
much as it is an investment in the future of a national commercial and
recreational fishing industry that provides $111 billion dollars each
year to the nation's economy and 1.5 million family wage jobs.
I won't go into the many other onshore economic benefits of
wetlands protection in any detail. However, these benefits include:
natural flood control, natural buffers against erosion and siltation,
water purification functions, breakdown of pollutants and the support
of a host of aquatic species with many other benefits. If these
functions are lost through increased wetlands losses, then the costs of
replacing these natural functions (e.g., increased water filtration
costs) must either be paid by government or the damages will be paid by
private landowners.
Wetlands are clearly important for natural flood control as well as
nature's best water storage system. One acre of wetlands flooded to a
depth of 12 inches holds 330,000 gallons of flood water that would
otherwise damage human property and threaten human life. A 1965 study
of the Charles River, for instance, by the U.S. Army Corps of Engineers
determined that if 40% of the Charles River wetlands were lost, flood
stages in the middle and upper river would increase two to four feet--
increasing annual flood losses by $800,000.\13\ The Minnesota
Department of Natural Resources has computed a cost of $300 to replace,
on average, each acre-foot of flood water storage eliminated from
natural wetlands. In other words, if development eliminates a one-acre
wetland that naturally holds 12 inches of water during a storm, the
replacement storage costs for flood control alone would be $300. Thus
the cost to replace the storage capacity of the 5,000 acres of wetland
lost annually in Minnesota would be $1.5 million (in 1991 dollars). In
other studies, the economic-equivalent values of coastal wetlands
ranged from about $2,200 per acre along the Pacific coast to almost
$10,000 per acre along parts of the Florida coast.\14\ In fact,
wetlands are now recognized as a valuable natural resource that
protects our cities from flooding, protects our beaches from erosion,
provides us cleaner water and gives us a host of other valuable
economic benefits. It now appears that wetlands are in many cases more
economically valuable as wetlands--maintained simply for their
biological and fisheries value than for any other purpose.
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\13\ From Kusler, Jon A., Our Wetland Heritage: A Protection
Guidebook (1983), p.1.
\14\ Economic values of wetlands from Coastal Wetlands of the
United States: An Accounting of a Valuable National Resource. U.S.
Dept. of Commerce, NOAA (1991).
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I should also note that the best way to prevent more listings under
the federal Endangered Species Act CSA) is to protect wetlands.
Nationwide, over 5,000 species of plants, 190 species of amphibians,
and 270 species of birds depend on wetland ecosystems for their
survival. In fact, nearly 50% of all the animals on the endangered
species list in the U.S. rely on wetlands for their very existence.
Wetlands are among the most productive natural ecosystems in the world,
and therefore it pays to protect them.\15\
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\15\ From Population-Environment Balance, April 1993; source
quoted: U.S. Fish and Wildlife Service.
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We are in fact losing the struggle to save the nation's wetlands.
Hundreds of thousands of acres of wetlands have been drained annually,
despite increased efforts to conserve wetlands through state and
federal legislation. Over half (53%) of the wetlands in the coterminous
United States have been lost. Only about 103 million acres of wetlands
remains today, but unfortunately much of this remainder has already
been biologically compromised.\16\
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\16\ Thomas Dahl, Wetland Losses in the United States 1970's to
1980's, ibid.
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the nationwide permit system's deficiencies
Since this hearing is primarily about the nationwide permit system,
it would be helpful to mention a few points about this program and its
deficiencies from our industry's viewpoint. The principle problem is
that these permits become a license to destroy wetlands more or less at
the convenience of developers. In fact, the single biggest source of
wetlands loss in America is Nationwide Permit 26. This permit singles
out wetlands located in headwaters or isolated areas for different and
much inferior protection under the Clean Water Act, with little
scientific basis. This leads to watershed fragmentation which can have
devastating cumulative impacts on the aquatic species which depend upon
them.
In an influential report from 1995, the National Academy of
Sciences called the scientific basis for Permit 26 ``weak'' and
specifically recommended that the Corps reevaluate the permit for
validity under the Clean Water Act.\17\ The U.S. Fish and Wildlife
Service has performed detailed studies of the effect of Permit 26 in
California and Colorado, and these studies document that this permit is
allowing significant environmental harm on the ground.\18\ The
Environmental Protection Agency, the National Oceanic and Atmospheric
Administration, and the Interior Department have all filed formal
comments critical of the permit.\19\ In fact, many states have joined
this chorus of criticism against Permit 26, with a number of states
specifically and directly asking the Corps to abolish the permit for
good.\20\
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\17\ National Research Council, Wetlands: Characteristics and
Boundaries (Washington: National Academy Press, 1995), pp. 155-56 &
166-67.
\18\ From Long, Michael M., et al., ``Wetland Losses Within
Northern California for Projects Authorized under Nationwide Permit No.
26,'' U.S. Fish and Wildlife Service Sacramento Field Office (October
1992), Letter from Joel A. Medlin, Field Supervisor, U.S. Fish and
Wildlife Service Sacramento Field Office, to District Engineer, Corps
of Engineers Sacramento District (July 15, 1996); Gladwin, Douglas N,
et al., ``Section 404 and Wetland Alterations in the Platte River Basin
of Colorado,'' U.S. Fish and Wildlife Service Resource Publication 178
(1996).
\19\ See their comments dated on or about September 3, 1996, and
filed in response to Corps of Engineers Proposal to Issue, Reissue, and
Modify Nationwide Permits, published on June 17, 1996, at 61 Fed. Reg.
30,780.
\20\ See, for example, Letter from John Turner, Chief,
Environmental Services Division, California Department of Fish and
Game, to Corps of Engineers, April 30, 1996, at pg. 7; Letter from
Jeremy Craft, Director, Division of Environmental Resource Permitting
Florida Department of Environmental Protection, to Jasmin Raffington,
Florida Department of Community Affairs, August 22, 1996, at pg. 15.
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In the face of the fact that Permit 26 had become a major loophole
for wetlands destruction, last December the Corps decided to phase out
Nationwide Permit 26 over a two-year period. While we regret the long
time the Corps is taking to implement this badly needed reform, we--as
an industry organization--strongly supported the Corps' decision to
abolish this destructive permit exemption. The cata-
logue of harm caused by Permit 26 is serious: each year roughly 34,000
development activities are authorized under Nationwide Permit 26, and
the annual wetlands loss from this one permit alone is in the many
thousands of acres each year. Just as troubling, this loss is
concentrated in the parts of our nation that are facing the most
development pressure, a fact that magnifies and worsens the harm caused
by the permit. Many of these high impact areas are in biologically
important coastal areas, particularly including the Southeast part of
our nation, where our industry is precisely the most wetlands
dependent. As wetlands are lost at a high rate in these areas (due to
Permit 26 and other permitting mechanisms), the ability of wetlands to
serve as biological breeding and nursery grounds for extremely valuable
fisheries is being impaired. More fishing jobs are being lost as a
result. Frankly, it was past time for a change, and we are glad that
the Corps is starting to move the program in the right direction and
phasing it out.
As a matter of sound science and policy, Nationwide Permit 26
cannot be defended. The wetlands regulatory system needs to strike a
much more responsible balance between protecting the environment and
facilitating responsible economic development; for too many years,
Permit 26 has thrown this balance out of kilter. Furthermore, the
impact on the nation's valuable fisheries of continued wetlands loss
has been systematically ignored. In many cases, just leaving wetlands
alone to serve us as wetlands is the most biologically valuable and
economically productive choice for society as a whole.
The nation's fishing industry will benefit from the end of
Nationwide Permit 26, and its replacement by a set of activity-specific
general permits. Those changes will do a much better job of protecting
the environment, protecting our industry, and restoring the responsible
balance that the Section 404 program needs--and was supposed to
provide.
recommendations for making wetlands protection less burdensome
There is no doubt that there is room for improvement in the Army
Corps of Engineers Section 404 wetlands fill permit process, including
providing for clear deadlines as well as a more open and less
bureaucratic process. The system could do a much better job of
protecting wetlands. The nationwide permit system and the mitigation
programs are particularly in need of reform to reduce indefensible loss
of valuable natural resources. However, as a regulated industry
ourselves, we are also sympathetic to landowners complaints of slow
processing times and costly delays. We have faced some of those
problems ourselves in our salmon stream restoration programs, many of
which require similar permits.
On the landowners' side the system could be improved in ways
designed to give landowners more predictability and accountability in
the regulatory decisions they receive from the Corps. While we do not
believe legislation is necessary to effect most or all of these
improvements, we could support a balanced bill focused primarily on
procedural reforms designed to fix legitimate problems on both the
resource protection and the landowners' sides of the program. In other
words, we would support a number of reasonable administrative
streamlining changes, provided the resource protection goal of wetlands
protection and the ``no net loss'' policy is not sacrificed along the
way.
We believe that such a balanced, centrist bill has little chance of
passage, however, if land developers continue to advance extreme
proposals to scale back the Clean Water Act's protections for wetlands.
We have recently seen serious proposals to codify unscientific and
unworkable classification schemes, to introduce special interest
exemptions for favored industries, and to scale back EPA's independent
review authority to prevent it from protecting wetlands at all. These
are just a few examples of the unscientific, often counter-productive
legislative proposals that development interests have advocated in the
past, and apparently continue to advocate to this day. Bills containing
provisions such as these are moderate in name only, and frankly they
make any truly centrist and balanced efforts toward needed reforms
impossible. As this nation's oldest and still one of its largest
industries--and one which is heavily wetlands dependent--we must
continue to oppose extremism of this nature.
There is also the more fundamental question as to whether the Army
Corps of Engineers should even be the responsible permitting agency.
Throughout the history of the Corps, that agency has been dedicated to
destroying wetlands rather than protecting them. Even today it is not
uncommon for the agency to be vehemently defending its own outmoded
projects, some of which have caused massive wetlands loss, while
simultaneously trying to shift the entire remaining burden of wetlands
protection in a wetlands-depleted watershed onto the shoulders of
private landowners and the taxpayer. Since the role of wetlands must be
judged on the basis of the whole watershed, any reductions in one place
will have to be offset elsewhere. In many instances, modification or
cancellation of a pet Corps project may be all that is required to both
protect key wetlands and to reduce landowner impacts at the same time.
Some of these projects are, frankly, little more than giant boondoggles
designed to subsidize bloated industries at taxpayer expense. Many of
them do far more harm than good.
Again, we would support improvements to the process which would
benefit both the wetlands resource and landowners. Some of our
recommendations for how the process can be improved are as follows:
(1) Minimizing conflicts with private landowners.--Most of the
conflicts between private landowners and the government with respect to
wetlands protection are more perceived than real. Nevertheless, there
is a need to minimize those conflicts to the extent possible as well as
providing for conservation measures which achieve the goal as cost
effectively as possible. Some of the measures that should be
incorporated into the law to achieve these goals include the following:
The law should direct the Secretary to emphasize the role of
federal actions and public lands in achieving recovery. The law
should be clearer in specifying that all federal agencies have
a responsibility to use their existing programs to foster the
implementation of wetlands protection to the degree they can.
All agency actions should be based on a coordinated basinwide
wetlands protection plan. Otherwise there will be fragmentation
and waste as frequently occurs today. Thus we frequently see
federal projects to both destroy wetlands and save wetlands in
the same basin--clearly working at cross purposes.
If wetlands occur on privately held lands, the law should
direct the Secretary to identify land for acquisition
(including any land interests less than fee title, such as
conservation easements), from willing sellers, and should to
set priorities for acquisition. This process should be well
funded and the administrative procedures for financing these
acquisitions should be simplified. Many landowners would be
more than willing to help with wetlands protection efforts if
such financial incentives were more readily available.
An expedited review of proposed wetland modification actions
by private landowners should be provided so that no more than
90 days elapses between application for review and final
decision. A ``tiering'' process would be useful so that
processing for projects likely to have only minimal impacts
would be expedited, thus freeing up staff time for more speedy
review of projects with major significance.
There should also be permit review and decision deadlines as
a matter of statute so that the permit process is more
predictable and there is more agency accountability.
Landowners should be encouraged to provide wetlands
protection through a variety of incentive and financing
programs, including the following:
(a) Establish a revolving loan fund for state and local
government entities to encourage such entities to develop
regional wetlands conservation plans similar to the Habitat
Conservation Plan (HCP) process under the ESA. In fact, these
processes may be one and the same, as an HCP should also
address wetlands protection.
(b) Enable landowners with proposed activities consistent
with an approved regional HCP to obtain expedited approvals of
those activities which may affect wetlands.
(c) Authorize the Secretary to enter into cooperative
management agreements with private landowners, providing
financial incentives for conservation measures above and beyond
those required by law.
A Wetlands Conservation Plan process similar to (and perhaps
part of) the Habitat Conservation Plan (HCP) procedure is a
good tool for landowners to restore some certainty into the
process as well as to provide for long-term protection
measures. However, the current HCP process is deeply flawed and
includes too little public notice and comment. Furthermore,
HCP's can be inconsistent with approved HCP's elsewhere, even
in the same watershed. However, some similar planning process
is required to get an ``overview'' as well as to create a
realistic, long-term plan for wetlands protection and
conservation on a landscape basis.
(2) Wetlands identification should be based on the best available
science.--Wetlands should be identified in accordance with the
recommendations of the National Research Council's recent report
Wetlands: Characteristics and Boundaries. This report represents the
best available science on this process.
(3) Funding for scientific surveys and wetlands restoration efforts
should be greatly improved.--The total funding for all wetlands survey,
permit review and remedi-
ation programs is nowhere near adequate. Without better funding, the
agency simply cannot do the required job without major project delays.
The most common complaint from landowners, in our experience, are
agency delays. These delays are caused primarily by lack of adequate
funding to complete the process within reasonable time lines.
(4) Alternanve Dispute Resolution for property owners.--There are
rare instances in which property owners were unfairly treated or in
which government agencies made inappropriate decisions. This is
inevitable in any large administrative process. However, there should
be a speedy and effective way to put these problems to rights. Some
internal dispute resolution mechanism would be very helpful for
landowners to minimize unnecessary conflicts and resolve disputes.
There is an existing Alternative Dispute Resolution process within the
U.S. Court of Claims which allows aggrieved landowners to present their
case to a Claims Court judge without needing a lawyer and without a lot
of paperwork. This process does not even require a trip to Washington,
DC--it can be done by fax and phone. At a minimum, any new legislation
ought to specifically include this sort of fast and inexpensive
alternative dispute resolution mechanism as a ``safety value'' to
prevent problems from escalating out of control.
(5) All known information about the existence and extent of known
wetlands should be available to prospective purchasers or developers of
property from a centralized data source.--Information depositories
should be created (perhaps administered through the National Biological
Service and made available through state and local land planning
agencies) so that prospective purchasers or developers of property
would be able to ascertain quickly and inexpensively whether or not
wetlands are known to exist on the property they are considering
purchasing. Similar state-based information services are already
available in states like California, through the local permit process.
In theory, it would be possible to have all this information in readily
searchable form, available with a quick computer inquiry for a very
minimal fee from any county planning agency. This information may also
be made available for ``on-line'' access via computer modem.
Most land use conflicts result when landowners have invested
substantial money and resources in a development project and feel that
they have no choice except to proceed in order to recoup their
investment. If a prospective landowner or developer knows before close
of escrow whether or not there might be conflicts between development
plans and wetlands protection obligations, he or she could plan
accordingly, propose mitigation measures with acceptance a condition of
close of escrow, and in general take a number of proactive steps to
minimize or eliminate any potential future conflicts. Biological impact
review of development plans by state fish and wildlife or local
agencies is routinely done in many states as part of the building
permit process, and this additional data base would fit neatly into
those programs.
(6) Abolish the Nationwide Permit 26--In particular, the Nationwide
Permit 26 exemption should be abolished as quickly as possible, so that
the unreasonable tide of wetland loss this permit causes can finally be
stemmed and these kinds of blanket exemptions replaced with a balanced,
scientifically valid approach to wetlands protection that take all
values--in particular commercial and recreational fisheries values--
into account.
conclusion
In conclusion, I want to leave this Subcommittee with two critical
messages. The first is that wetlands are critical to fish production,
which means they are essential to create and maintain jobs, food,
commerce and exports. In fact, almost $79 billion dollars per year are
even now generated from wetlands dependent species, or about 71% of the
nation's entire $111 billion dollar commercial and recreational fishing
industry.
The second message is that we cannot afford to lose any more
wetlands. We have already lost more than half, and are still only
slowing the rate of loss down rather than reversing it. Our focus today
should therefore be on protecting what is left, restoring what has been
degraded and looking for opportunities to establish new wetlands, since
this will mean more abundant fisheries and additional economic
opportunities in the future. Wetlands protection is, in fact, one of
the wisest long-term investments this nation can make in its economic
future. It is also a very good investment in flood control and clean
water for our children and their futures. Wetlands, in short, is one of
this nation's most valuable economic resources, and it pays to protect
it.
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Prepared Statement of Wise Use Movement
Mr. Chairman. Please include this testimony in the Hearing Record
on Nationwide Permits under Section 404 of the Federal Clean Water Act
held 26 June 1997 and send us a copy of the Hearing Record when
available.
The purpose of the Wise Use Movement:
To preserve and protect wise, environmentally sound use of
public lands, including lands owned by the various states and the
Federal government.
To encourage wise, environmentally protective regulation
of private lands by local, state and Federal agencies, including use of
land use planning, zoning, and regulation of extractive industries such
as mining, grazing and logging on private lands.
To educate the public as to wise use of public lands and
resources and wise and environmentally sound regulation of private
property, including wetlands.
To encourage public participation in the political process
at the local, state, and national level.
To combat distorted and erroneous materials circulated by
individuals and organizations promoting environmentally destructive use
of public lands and resources, and restricting environmentally sound
regulation of private lands and activities.
The WISE USE MOVEMENT supports the following private property
responsibilities:
To share our temporary land ownership with our fellow
creatures, wildlife and fish, big and small.
To seek to restore biological integrity.
To assist in the recovery of endangered plants and
animals.
To keep hazardous waste from contaminating the land, air
and water.
To protect surface water, groundwater and aquifers.
To refrain from activities that damage or pollute adjacent
temporary owners.
To protect and preserve sensitive areas, especially
wetlands.
To refrain from activities which damage or degrade natural
resources important to the quality of life of our fellow citizens and
the sustainability of our communities.
To leave the land to the next temporary owner in better
ecological shape than it was received.
The Wise Use Movement is concerned that our Nation's wetlands will
again be threatened by excavation undertaken without permit due to the
recent Tulloch Court decision, which struck down an EPA/Corps rule
designed to regulate under Sec. 404 of the Federal Clean Water Act the
destruction of wetlands through ditching and draining. We request that
Congress restore the intent of the Tulloch rule in order to protect the
quality of our nation's waters, including wetlands.
We also remain opposed to the Corps of Engineers use of nationwide
permits to circumvent the goals and policies of the Federal Clean Water
Act. How many wetlands were filled in the State of Washington last
year? We would know if the Corps wasn't breaking the law.
Under the Federal Clean Water Act, the Corps is authorized to issue
permits (under Sec. 404) for the discharge of dredged or fill material
into wetlands. They also issue permits (under Sec. 10 of the Rivers and
Harbors Act) for structures in navigable waters such as piers and
docks, that do not impact wetlands. Applications for individual permits
under Sec. 404 and/or Sec. 10 are sent out for public notice and
review. They must undergo an alternatives analysis (i.e. are there
upland sites for the proposed activity) and mitigation is required.
However, the Corps is also allowed to issue ``general'' permits on
a state, regional or nationwide basis for activities that are ``similar
in nature'' and have a minimum adverse impact, including cumulatively,
on the environment. The Bush Administration issued 36 different
nationwide permits in 1991 for a five-year period, many of which impact
wetlands. The Clinton Administration embraced all of these NWPs, issued
a new NWP last year, and proposed to issue three new ones. In addition,
the Corps refuses to prepare an environmental impact statement to
document the wetland losses from NWPs over the past five years. [Worse,
the Clinton Administration and the Corps have indicated that they
intend to continue issuing regional general permits for geographic
areas smaller than a state, again contrary to the Federal Clean Water
Act.]
Many of these nationwide permits (NWPs) involve wetland filling.
They do not go out for public review. They do not require an
alternatives analysis, and in too many cases, they do not require any
mitigation. At least 77.7 acres of wetlands were filled in the State of
Washington in 1995 under all nationwide permits. The reason we don't
know the real figure is that the Corps has issued nationwide permits
(NWPs) for wetland filling activities that are not similar in nature
and there was no requirement that the Corps be notified when wetlands
in isolated areas under an acre are filled. The new Corps rules have
required notification when filling more than \1/2\ acre, but we will
still will have no Corps record of fills under \1/2\ acre.
The two most environmentally damaging NWPs are NWP-26 and NWP-29.
NWP-26 covers wetland filling in isolated areas. It does not cover
activities similar in nature. For areas under an acre no notification
to the Corps was required in the past. Rather than admit that NWP-26 is
a violation of the Federal Clean Water Act, the Corps chose to reduce
the scale of MAIP-26 and provide a phaseout within two year. An illegal
NWP is still illegal whether phased out or not. The National
Homebuilders have filed a frivolous lawsuit in an attempt to
reestablish the full extent of the environmentally damaging NWP-26.
This is unwarranted. Many states have denied water quality
certification for NWP-26 because of their local concern for wetlands.
Individual permit applications are available from the Corps and no
member of the National Homebuilders can show harm just because they no
longer will be able to fill a wetland and avoid public notice and
review.
NWP-29 is another bad example of Corps permitting. It involves
filling for single family residences and attendant features. Again,
since ``attendant features'' is not well defined, it does not cover
activities similar in nature and should be rejected as well.
In order to determine how the Nation-Wide Permit program works, a
review was made in July/August 1996 of Seattle District Army Corps of
Engineers files on individual permits and Nationwide permit-26's issued
in the State of Washington from 1994-1995. The Seattle Corps District
currently issues Section 404 permits for the entire state of
Washington.
Information on permits issued by the Seattle District were taken
from the monthly list of permit decisions (i.e. issued, cancel led or
denied). Each Corps District is required to issue a such a list
monthly, however many Corps Districts fail to issue this list monthly.
In addition, the quality of the monthly list various enormously from
Corps District to Corps District. The Corps prides itself on being a
``decentralized'' agency with much discretionary authority given to the
District Engineer, hence the lack of standardization across Corps
Districts.
Because Section 404 covers the disposal of dredged or fill
material, not all activities involving a Section 404 permit involve
wetland filling (e.g., the disposal of dredged material in open water).
The monthly list does not provide adequate information to determine
whether a permit is being issued for wetland filling. Therefore, each
individual Corps permit file must be examined individually.
In addition, under the NWP-26 in effect for the state of Washington
there was no notification to the Corps required for wetland filling of
less than one acre in isolated waters or above the headwaters. Thus,
the Corps does not track, nor can the extent of wetland filling in
Washington State be quantified from Corps files.
results: individual permits
In 1995, based on the file search, approximately fifty individual
Section 404 permits were issued by the Seattle District Corps.
Information collected for each permit included: permit number,
applicant, permit date, kind of project (when listed), location of
project, acreage of wetland impacted (when listed), and any mitigation
and monitoring requirements, It was determined that half of these (27)
involved no wetland filling. An additional nine files could not be
located by the Corps. Fourteen individual permit files involving
wetland filling were reviewed.
Nine permits involving 8.963 acres of filling were given to public
agencies. Five permits involving 19.4 acres of filling were given to
private parties. (However, a single permit given for 17.4 acres of
wetland filling for a non-water dependent horse racing tracking).
1995 individual permits
Sec. 404 Permits Issued: Approximately 50
Sec. 404 Permits that did not involve wetland filling: 27
Sec. 404 Permits that did involve wetland filling or impacts: 14
--Nine permits involving 8.963 acres of filling given to public
agencies
--Five permits involving 19.4 acres of filling were given to
private parties
Two projects were for roads
Two projects were for storm water detention
ponds
One project for an airport
One project for a house
One project for a horse racing track (biggest
single wetland fill)
One project for ferry terminal
One project for road/parking lot/shop
One project for commercial development
Four projects for misc. filling
Sec. 404 Permit files that could not be located: 9
--Based on the monthly lists
three permits issued to public agencies for
wetland filling
three permits issued to private parties for
wetland filling
three permits did not appear to involve
wetland filling
1994 individual permits
Sec. 404 Permits Issued: Approximately 63
Sec. 404 Permits that did not involve wetland filling: 42
Sec. 404 Permits that did involve wetland filling or impacts: 18
--Fourteen permits given to public agencies involving 25.39
acres of filling
--Three permits given to private parties involving 9.19 acres
of filling
Nine projects for roads/parking lots
Three projects for restoration
One project for commercial development
One project for dike
One project for Port development
One project for draining/clearing
One project for railroad
One project for misc.
Sec. 404 Permit files that could not be located: 6
--Based on the monthly lists
two permits issued to public agencies for
wetland filling
four permits did not appear to involve wetland
filling
Nationwide-26 Permits
1995 nwp-26s approximately 190 issued
112 NWP-26s issued to private parties for 63.3 acres of wetland
filling/impacts
41 NWP-26s issued to public agencies for 14.43 acres of wetland
filling/impacts
thirty eight permits for roads
thirty one projects for misc.
twenty projects for ditching/excavation
seventeen permits for housing projects
fourteen permits for commercial development
nine permits for houses
eight permits for restoration
seven projects for land clearing
six project purposes could not be determined
three permits for sewers
21 NWP-26 files could not be located
14 NWP-26s did not appear to involve wetland filling (e.g., after-
the-fact permits were it was difficult to determine prior conditions,
wetland jurisdiction calls)
2 NWP-26s were cancelled.
1994 nationwide permit-265 approximately 153 issued
107 NWP-26s issued to private parties for 60.86 acres of wetland
filling/impacts
31 NWP-26s issued to public agencies for 13.16 acres of wetland
filling/impact
Thirty-seven residential housing projects
Twenty-eight road/parking lot projects
Nineteen commercial/industrial projects
Nine unspecified building projects
Eight land clearing/draining projects
Eight misc. projects
Nine projects where no purpose was provided
Six individual housing projects
Five restoration/enhancement projects
Four school projects
Two pipeline projects
7 NWP-26 files could not be located
8 NWP-26s did not appear to involve wetland filling (e.g., after-
the-fact permits were it was difficult to determine prior conditions,
wetland jurisdiction calls)
Under the Clean Water Act, the Corps can only issue general permits
when the activities ``are similar in nature, will cause only minimal
adverse environmental effects when performed separately, and will have
only minimal cumulative adverse ef-
fect on the environment'' (Sec. 404(e)(1). NWP-26 for fills in
headwaters and isolated waters do not constitute a category of
activities similar in nature.
For example, the Seattle District Corps issued NWP-26s for
--wetland fill for golf course roads, bridges (94-4-00453)
Vanport Manufact.
--wetland fill for housing development (95-4-00727) Falcon
2000, Inc.
--wetland fill for school playground (95-4-00427) Mt. Vernon
School District
--wetland fill for hospital expansion (95-4-00380) Providence
Hospital
--wetland fill for sewer line (95-4-01532) Northshore PUD
--wetland fill for culvert replacement (94-4-02176) WA DOT
--wetland fill for church parking lot (94-4-00130) Emmanual
Baptist Church
--wetland fill to store old cars (95-4-00745) To Leatham
These are clearly not a category of activities similar in nature.
other wetland impact reviews
(1) The Corps maintains a computer database (called RAMS) which
generates Quarterly Reports. The system is used to track each Section
404 permit, mainly for permit issuance time. This is a major focus of
the Corps, to cut down on the time it takes them to issue Section 404
permits. Same additional acreage and mitigation information is also
included. However, the type of mitigation is not broken out, nor is
there any verification that the mitigation has actually taken place or
been successful.
The Quarterly Reports lump all NWPs together. According to the
Quarterly Reports for 1995 prepared by the Seattle Corps District,
155.1 acres of wetlands were approved for filling under all Nationwide
permits. Half of all NWP fills reported (77.73 acres) occurred under
NWP-26. This is a large cumulative loss of wetlands which does not
include the wetland losses under NWP-26 that are not reported. For
example, the same Quarterly Reports document 54.69 acres of wetland
filling under the standard (individual) permit process.
(2) The Washington State Department of Ecology (DOE) issued an
annual report in May 1996 covering the time period of September 1994-
August 1995. During this time period, DOE made 626 decisions on Federal
Section 10, Section 404 and nationwide permits. [Note: Under Section 10
of the Rivers and Harbors Act, the Corps issues permits for piers and
other potential obstructions to navigation.]
Under their Water Quality Certification and/or Coastal Zone
Certification authority, DOE made 41 Section 404 decision, and 130 NWP-
26 decisions. However, since NWP-26 fills less than an acre do not need
to be reported to the Corps, this level of wetland filling is not
reflected in DOE's report.
According to DOE, 152.58 acres of wetland filling/impacts were
recorded of which 139.10 acres were in Western Washington, (with the
majority in King (39.10 acres) and Pacific Counties (23. 19 acres)
followed by Whatcom (15.02 acres), Snohomish (12.98 acres), Skagit
(10.99 acres) and Clark (10.60 acres). According to DOE, the majority
of wetlands impacted reflect the urban, and even rural growth that is
occurring in those counties. The six counties identified above total
111.8 acres of 80.4% of the total wetland acreage reported impacted in
Western Washington.
The DOE report lists 221.39 acres of mitigation received, but there
is no information on whether this mitigation was preservation,
enhancement, restoration or creation. Nor is there any verification
that the mitigation proposed was actually carried out or was carried
out successfully. In addition, DOE notes 9 acres of ``Pipeline
Restoration'' and 21.94 acres of ``Wetland Conversion''.
conclusions
Public agencies are responsible for approximately 25% of
wetland filling under NWP-26 during 1994-95 and well over half the
wetland filling under standard (individual) permit applications. This
raises significant questions concerning the wisdom of allowing state
and local governments to run wetland permitting programs when they are
such a significant source of wetland filling themselves.
Quality of file information varied greatly. Some files
contained standard permit applications that the Corps determined could
be processed under NWP-26. Other files were merely ``enforcement
files'' where a determination was made that the alleged violation did
not exceed an acre and therefore was automatically covered by NWP-26.
Approximately 17 files were missing or could not be
located while at the Corps. Better tracking of files is needed.
Approximately 14 files did not appear to involve wetland
filling (e.g., 95-4-00501 to create a pond), but were processed as NWP-
26 anyway.
Some local government sensitive area ordinances require
mitigation for even small wetland fills. However, since mitigation is
not a condition of Seattle Corps District NWP-26s for wetland fills
less than an acre it is impossible to determine what mitigation has
been carried out from examining the Corps files. In any event, the
public can not sue to enforce conditions issued by the Corps.
The Corps uses NWP's to resolve alleged unauthorized
filling. However, in several cases, no purpose was attached to the
filling (e.g., land clearing). As a result, the Corps can not carry out
general policies for evaluating permit applications found at 33 CFR
Sec. 320.4(a)(2) concerning need for the proposed project.
What is surprising is the high Percentage of wetland filling
permits being given to state and local agencies. This is strong
evidence that allowing state or local governments to assume sole
responsibility for wetland permit decisions when they themselves are
also the seekers of wetland filling permits would be a grave mistake.
The Wise Use Movement supports strengthening the Clear Water Act,
particularly Section 404 and we oppose weakening efforts such as that
proposed by Senator Bond and Senator Breaux. Thank you for the
opportunity to submit these comments. Please send us a copy of the
hearing record then it becomes available.