[Senate Hearing 105-328]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 105-328


 
                 WETLANDS: REVIEW OF REGULATORY CHANGES

=======================================================================

                                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

                              ----------                              
                                                                   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

                              ----------                              


                        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.
    [Charts supplied by the Corps of Engineers follow:]

    [GRAPHIC] [TIFF OMITTED] T6779.001
    
    [GRAPHIC] [TIFF OMITTED] T6779.002
    
    [GRAPHIC] [TIFF OMITTED] T6779.003
    
    [GRAPHIC] [TIFF OMITTED] T6779.004
    
    [GRAPHIC] [TIFF OMITTED] T6779.005
    
    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:]

    [GRAPHIC] [TIFF OMITTED] T6779.006
    
    [GRAPHIC] [TIFF OMITTED] T6779.007
    
    [GRAPHIC] [TIFF OMITTED] T6779.008
    
    [GRAPHIC] [TIFF OMITTED] T6779.009
    
    [GRAPHIC] [TIFF OMITTED] T6779.010
    
    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.

[GRAPHIC] [TIFF OMITTED] T6779.013

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 

[GRAPHIC] [TIFF OMITTED] T6779.014

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.
                                 ______
                                 
  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.

[GRAPHIC] [TIFF OMITTED] T6779.017

[GRAPHIC] [TIFF OMITTED] T6779.018

[GRAPHIC] [TIFF OMITTED] T6779.019

[GRAPHIC] [TIFF OMITTED] T6779.020

[GRAPHIC] [TIFF OMITTED] T6779.021

[GRAPHIC] [TIFF OMITTED] T6779.022

[GRAPHIC] [TIFF OMITTED] T6779.023

[GRAPHIC] [TIFF OMITTED] T6779.024

[GRAPHIC] [TIFF OMITTED] T6779.025

[GRAPHIC] [TIFF OMITTED] T6779.026

[GRAPHIC] [TIFF OMITTED] T6779.027

[GRAPHIC] [TIFF OMITTED] T6779.028

[GRAPHIC] [TIFF OMITTED] T6779.029

[GRAPHIC] [TIFF OMITTED] T6779.030

[GRAPHIC] [TIFF OMITTED] T6779.031

[GRAPHIC] [TIFF OMITTED] T6779.032

[GRAPHIC] [TIFF OMITTED] T6779.033

[GRAPHIC] [TIFF OMITTED] T6779.034

[GRAPHIC] [TIFF OMITTED] T6779.035

[GRAPHIC] [TIFF OMITTED] T6779.036

[GRAPHIC] [TIFF OMITTED] T6779.037

[GRAPHIC] [TIFF OMITTED] T6779.038

[GRAPHIC] [TIFF OMITTED] T6779.039

[GRAPHIC] [TIFF OMITTED] T6779.040

[GRAPHIC] [TIFF OMITTED] T6779.041

[GRAPHIC] [TIFF OMITTED] T6779.042

[GRAPHIC] [TIFF OMITTED] T6779.043

[GRAPHIC] [TIFF OMITTED] T6779.044

[GRAPHIC] [TIFF OMITTED] T6779.045

[GRAPHIC] [TIFF OMITTED] T6779.046

[GRAPHIC] [TIFF OMITTED] T6779.047

[GRAPHIC] [TIFF OMITTED] T6779.048

[GRAPHIC] [TIFF OMITTED] T6779.049

    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.

[GRAPHIC] [TIFF OMITTED] T6779.050

[GRAPHIC] [TIFF OMITTED] T6779.051

[GRAPHIC] [TIFF OMITTED] T6779.052

[GRAPHIC] [TIFF OMITTED] T6779.053

[GRAPHIC] [TIFF OMITTED] T6779.054

 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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \9\ Even if they did not, we contend that the insertion of tiles 
should, like pilings, be regulated as fill.
---------------------------------------------------------------------------
                            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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \10\ 58th North American Wildlife and Natural Resources Conference, 
Washington, DC 1993.
---------------------------------------------------------------------------
          ``[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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \15\ From Population-Environment Balance, April 1993; source 
quoted: U.S. Fish and Wildlife Service.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \16\ Thomas Dahl, Wetland Losses in the United States 1970's to 
1980's, ibid.
---------------------------------------------------------------------------
              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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.

[GRAPHIC] [TIFF OMITTED] T6779.056

[GRAPHIC] [TIFF OMITTED] T6779.057

[GRAPHIC] [TIFF OMITTED] T6779.058

[GRAPHIC] [TIFF OMITTED] T6779.059

[GRAPHIC] [TIFF OMITTED] T6779.060

[GRAPHIC] [TIFF OMITTED] T6779.061

[GRAPHIC] [TIFF OMITTED] T6779.062

[GRAPHIC] [TIFF OMITTED] T6779.063

[GRAPHIC] [TIFF OMITTED] T6779.064

[GRAPHIC] [TIFF OMITTED] T6779.065

[GRAPHIC] [TIFF OMITTED] T6779.066

[GRAPHIC] [TIFF OMITTED] T6779.067

[GRAPHIC] [TIFF OMITTED] T6779.068

[GRAPHIC] [TIFF OMITTED] T6779.069

[GRAPHIC] [TIFF OMITTED] T6779.070

[GRAPHIC] [TIFF OMITTED] T6779.071

[GRAPHIC] [TIFF OMITTED] T6779.072

[GRAPHIC] [TIFF OMITTED] T6779.073

[GRAPHIC] [TIFF OMITTED] T6779.073

[GRAPHIC] [TIFF OMITTED] T6779.075

[GRAPHIC] [TIFF OMITTED] T6779.076

[GRAPHIC] [TIFF OMITTED] T6779.077

[GRAPHIC] [TIFF OMITTED] T6779.078

[GRAPHIC] [TIFF OMITTED] T6779.079

[GRAPHIC] [TIFF OMITTED] T6779.080

[GRAPHIC] [TIFF OMITTED] T6779.081

[GRAPHIC] [TIFF OMITTED] T6779.082

                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.