Wetlands and Section 404 Permitting
| Jurisdiction | United States,Federal |
| Citation | Vol. 9 No. 6 Pg. 8 |
| Pages | 8 |
| Publication year | 1996 |
June, 1996
H. Michael Keller, J.
I. INTRODUCTION
The presence of waters and wetlands may limit permissible land use and seriously impair the ability to develop. Wetlands are federally protected under §404 of the Federal Water Pollution Control Act (also known as the "Clean Water Act"), [1] and §10 of the Rivers and Harbors Appropriations Act of 1899 ("Rivers and Harbors Act)".[2]
Section 404 of the CWA prohibits discharges of dredged or fill material into navigable waters without a permit issued by the Army Corps of Engineers ("Corps").[3] Section 10 of the Rivers and Harbors Act requires a permit from the Corps for construction, excavation, filling, or other activities that obstruct navigable waters.[4]
II. REGULATORY AGENCIES
The §10 program is administered by the Corps, whereas the §404 program is administered jointly by the Corps and the Environmental Protection Agency ("EPA"), with involvement of the Fish & Wildlife Service ("FWS"), the Soil Conservation Service ("SCS") and certain other federal agencies. The Corps is the primary permitting authority under §404, but both agencies have enforcement authority.
III. ORGANIZATION OF THE CORPS
The Corps is highly decentralized, with 36 district offices throughout the country. Most permitting and delineation decisions are handled at or under the direction of the District Engineer with input from local field offices. Each District is headed by a District Engineer and is located within one of nine Divisions, each headed by a Division Engineer. Utah is in the Sacramento District of the South Pacific Division. The District is headquartered in Sacramento, and the Division is headquartered in San Francisco. There is a local regulatory office in Woods Cross, Utah.
IV. REGULATORY FRAMEWORK OF THE SECTION 404 PROGRAM
The 404 program is implemented through detailed regulations issued by the Corps[5] and by EPA.[6] In addition, there are regulatory guidance letters ("RGLs") issued from time to time by the Corps, and memoranda of understanding between the Corps and EPA articulating the position of the agencies on such matters as enforcement, jurisdiction, and mitigation. Questions concerning the program may be directed to a Corps District or field office or by calling EPA's toll-free Wetlands Hotline (800) 832-7828.
V. REGULATED WATERS
Jurisdiction under §10 is based on a concept of commercial navigability and extends to waters that are used, have been used, or may be susceptible for use to transport interstate or foreign commerce.[7] It only extends to the mean or ordinary high water line of non-tidal navigable waters.[8] It also extends to waters that are subject to the ebb and flow of the tide.[9]
Jurisdiction under the Clean Water Act is much broader. It extends beyond those "waters of the United States" that are commercially navigable and broadly encompasses tributaries of such waters, and all "other waters". . . "the use, degradation, or destruction of which could affect interstate of foreign commerce . . . ."[10]
Regulated tributaries may include non-perennial streams (i.e. ephemeral or intermittent streams) which are connected to navigable waters. Thus, discharges into, or excavation, construction or other activities within, normally dry arroyos or other tributary drainages that only flow in response to precipitation are subject to Clean Water Act jurisdiction.[11]
Under the interstate commerce test for "other waters", only a limited connection to interstate commerce is required. For example, EPA considers use by migratory waterfowl a sufficient connection with interstate commerce to bring isolated waters and wetlands within the jurisdiction of the Clean Water Act. In Hoffman Homes Inc. v. EPA, the Court agreed with EPA that jurisdiction extends to isolated wetlands where the only connection to interstate commerce is use by migratory waterfowl.[12]
Artificially created waters may also be subject to Clean Water Act jurisdiction if they meet the criteria of navigable waters. As stated in Leslie Salt Co. v. United States:
The Corp's jurisdiction does not depend on how the property at issue became a water of the United States. Congress intended to regulate locate aquatic ecosystems regardless of their origin.[13]
VI. WETLANDS
The Corps and EPA define "wetlands" as: Those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions .... Wetlands generally include swamps, marshes, bogs, and similar areas."[14] The basic factors considered in evaluating the existence of wetlands are the type of soils, the type of vegetation, and the degree and frequency of inundation. The definition does not require "frequent" inundation in and of itself; rather, the basic requirement is sufficiency to support, and actual presence of, wetlands vegetation.[15]
The Corps delineates wetlands using technical criteria set forth in a guidance manual. The first such manual, issued in 1987 ("1987 Manual"), established technical criteria and field indicators for determining whether or not an area was a jurisdictional wetland. Through a series of events, the 1987 Manual was superseded an then reinstated by the Corps and is currently the manual being used by the Corps for wetland delineations. The 1987 Manual requires that wetland vegetation, hydride soils, and wetland hydrology all be present for a regulated wetland to exist.
Altering an area by illegal filling does not alter its legal status as a regulated water or wetland under §404. Thus, jurisdictional waters or wetlands that were made "fast" land by illegal filling after implementation of the §404 program may remain jurisdictional waters under the Clean Water Act.
As a general rule, agricultural lands that exhibit wetlands characteristics are considered "farmed wetlands" and are subject to Section 404 jurisdiction.[16] However, wetlands that were converted prior to December 23, 1985, to croplands with "agricultural commodities" (including annual crops, such as wheat, corn, vegetables, etc., but not perennial crops, such as trees, apples, sod, cranberries, etc.) are considered "prior converted croplands" and subject to Section 404 jurisdiction if they no longer exhibit wetlands characteristics.[17] These provisions of the 404 program interplay with the Department of Agriculture's Swampbuster program under the Food Security Act of 1985, as amended by the Food, Agriculture, Conservation, and Trade Act of 1990, which is designed to discourage alteration of wetlands by withholding certain farm program benefits from farmers who convert or modify wetlands.[18]
Fill material deposited on wetlands prior to 1975 is considered " grandfathered" under the 404 Program.[19] Fills that occurred after that date, but before applicable program implementation dates, may also be grandfathered.[20]
VII. REGULATED ACTIVITIES
The plain language of §404 prohibits "discharge" of "dredged or fill material" without a permit.[21] The Corps and EPA define "discharge of fill material" to mean "the addition of fill into waters of the United States, "[22] and the "discharge of dredged material" to mean any addition or redeposition of dredged material associated with any activity, including mechanized landclearing, ditching, channelization and other excavation, that destroys or degrades waters of the United States.[23] Fill material is defined as "material used for the primary purpose of replacing an aquatic area with dry land or of changing...
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