Wetland Impact Assessment: Problems Under the Clean Water Act

R. Wayne Nelson

R. Wayne Nelson is President oJ Nelson and Associates, Inc. o] Boulder, Colorado. He perJorms water and land resource planning and policy analysis with an emphasis on the management o] wetlands, lakes, and streams. Previously he was Director oJ Ecological Assessment ]or Enviro Control, Inc. (Fort Collins, Colorado, and Rockvi l le , Maryland), Chie[ Environmental Planner ]or DeLeuw, Cather and Company (Washington, D.C.), and Senior Stall Environmental Specialist, Center ]or Advanced Studies, General Electric Company (Santa Barbara, CaliJornia). The regulatory analysis presented here was perIormed [or the Oceans and Environment Program, OIIice o] Tech nology Assessment, United States Congress, Jor the purpose oJ improving the management o] wetlands under the Clean Water Act.

Technical problems and policy issues concerning how to assess and mitigate the impacts of construction and development on wetlands are being re-examined by the U.S. Office of Technology Assessment (OTA), a research arm of the Congress. After reviewing its findings with the National Wetlands Tectlnical Council, the OTA will report to the Environment and Public Works Committee of the U.S. Senate with ideas and conclusions that could affect proposals for the amendment and reauthorization of the Clean Water Act. At the same time, a general redirection of regulatory strategy within the executive branch has influenced wetland management. The Army Corps of Engineers has recently expanded the use of nationwide uniform criteria for regulating activities in U.S. waters and wetlands. This approach relies on specifying activities affecting wetlands that, at least in concept, cannot individually or collectively produce more than "minor" impacts. The White House, under the Vice President, has the rather stringent U.S. Environmental Protection Agency guidelines on discharges of dredged or fill materials into U.S. waters and wetlands under reconsideration, with a view towards their relaxation and

E.,i ....... llmpac, A ........ Re,e~-.V. 4,,~.l EIA REVIEW 4/1 25 0195-9.~ ClQR3 Plenum Publishing Corporation

simplif icat ion. Therefore, it is timely and impor tan t to evaluate the problems of wetland impact assessment under the Clean Water Act.

The problems of wetland impact assessment under Section 404 of the Act appear to be problems of uncertainty, approach, exemption, and omission. Uncertainty in predict ing the impacts of part icular activities in wetlands, especially their cumulat ive impact , is heightened by our uncertain knowledge about the wetland values and funct ions affected by these activities. Problems of approach are concerned with where and whether an area-wide or site-specific impact assessment is needed. Regulatory exemption produces special problems in assessing the impacts on the exempted types of wetlands, activities in wetlands, or types of wetland discharge, particularly the cumulat ive effects. Omission of certain activities in wetlands or associated uplands from regulatory control also complicates impact assessment.

Problems of Uncertainty

Assessing intrinsic values of affected wetlands. The uncertainty of wetland impact assessments based on the known effects of specified wetland activities is c o m p o u n d e d by any unreliabil i ty in the assessment of wetland values and functions. The requisite state of the art is suggested by the U.S. Envi ronmenta l Protect ion Agency (44 Fed. Reg. 196, pp. 58077-78):

At least "in theory, there are instances where a site may be so sensitive and valuable that it is possible to say that any f i l l ing o] more than x acres will have unacceptable adverse e]fects. (What) is required is a reasonable l ikelihood that unacceptable adverse effects will occur - - not absolute certainty but more than mere guesswork.

Some analysts, inc lud ing Larson (1981) and Shabman and Batie ('1981), have recently cast more doubt on frequently assumed intrinsic values of wetlands for their ecological contr ibut ions - - pr imary productivity, export of detritus, and fish rearing, for example. Even greater doubt is expressed about wetland hydrologic functions - - flood control, g roundwate r recharge, and the removal of excess sediments, nutrients, and contaminants . In a major review of methodology for wetland value assessment, Lonard et al. (1981) concluded that the state of the art in evaluat ing hydrologic functions of wetlands is still poorly developed, while it is best developed for fish and wildlife habitat functions. Shabman and Batie (1981) concluded, " T h e po in t of this discussion is not to suggest that the ecological services of wetlands are nonexistent; however, there is a h igh degree of uncertainty abou t those services."

Predicting impacts o / w e t l a n d development activities. The impacts result ing from specified activities in wetlands cannot with any certainty be scaled just to the physical and chemical effects c o m m o n to

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those activities~ That is, it is not the activity perse that alone carries the impact potential, even though this is the underlying premise in the Section 404 exemptions from individual (or any) permit requirements. The six wetland evaluation techniques applicable to onsite impact assessment (Lonard et al. 1981) underscore the estimated changes of site-specific wetland values, weighted by the spatial units affected, due to all activities proposed at the site. In other words, the focus of technical impact assessment is location-specific, not activity-specific as it is throughout the Section 404 regulatory strategy. Setting a control strategy keyed primarily to the type of activity and, in some instances, the scale as well, without reference to relative wetland values, only compounds the uncertainty of impact assessment.

A sounder basis can be observed in the approach of the Corps of Engineers Portland District to wetland review. Moulton (1978) describes an approach to keying the impact assessment needs, particularly the need for a separate EIS, to various activities indexed to wetland areas classified according to their ecological, hydrologic, and other characteristics. For instance, in one of the less restrictive areas, a new bridge or jetty would still require an EIS; a "fast-land" fill or the disposal of dredged material exceeding 50 cubic yards would call for detailed evaluation of a permit application but not an actual EIS. The removal or replacement of pilings would not involve any impact determination, whereas a new dike or wing dam would not be permitted at all in this wetland zone.

Predicting~iong-term, cumulative, primary, and secondary impacts. The activities exempted by statute and regulations from individual w permits would appear more or less to generate only minimal impacts separately; the critical test support ing their exemption is whether their long-term, cumulative impacts are also minimal. This proviso would extend to their secondary or induced adverse effects as well as the primary ones. However, the certainty with which cumulative, including secondary, impacts may be assessed is perhaps several orders of magni tude less than for direct, immediate, isolated impacts. For example, the separate impacts from excavating, channelizing, and dewatering many small and scattered but hydrologically linked wetlands (Figure 1 ) might be quite apparent; the prolonged indirect adverse effects could be obscure. The cumulative impacts might extend, for instance, to lowering the area-wide water table. Secondary impacts from septic tank leachates resulting from land use conversion might possibly accumulate in time to cause aquifer pollution. Many uncertain value judgments are compounded in estimating these indirect impacts, thereby defeating the rationale for the nationwide permit program which is aimed at activities having readily apparent minor cumulative impacts.

As Dames and Moore (1981) point out, cumulative impacts extend conceptually through time and space and ecological chains, are synergistic and compounding, not merely additive or aggregative, and

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Figure 1. The direct, immediate impacts from excavating a pond and channelizing the drainage in this small freshwater marsh are easily discerned. However, the indirect impacts over time, including secondary effects from converting the land use, and the

. ~cumulative effects of many similar activities in the same drainage basin, cannot be assessed with such certainty.

encompasses indirect (second- or third-order) effects. Pu t t i ng bounds on cumula t ive impact eva lua t ion is necessary to reduce uncer ta in ty wi th in reasonable limits, poss ibly by restrict ing the t imeframe and geograph ic extent of analysis. Clark and Zinn (1978) called for omi t t ing the analysis of secondary effects except for ma jo r projects, and l imi t ing the evaluat ion of offsite effects by appropr ia t e ly restricting the "effects field" to a local or regional ecosystem, or poss ibly to an "expanded sys tem" where migra tory wildlife popu l a t i ons are involved.

T h e Corps of Engineers has been a d m o n i s h e d to consider secondary effects that are at least p robable rather than speculat ive (45 Fed. Reg. 184). In some circumstances it migh t be necessary to mon i to r rather than predict cumula t ive and secondary effects in order to dismiss any speculat ion. Even water qua l i ty sampl ing , however , may be inconclusive when a t t empt ing to l ink chemical concentra t ions with the causat ive activities or wi th the ecological consequences .

P rob lems of Approach

Case-by-case assessment o] special aquatic sites. Where wet lands and all o ther "special aqua t ic sites" are concerned, the Env i ronmenta l Protec t ion Agency's w guidel ines make it compe l l i ng to

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evaluate every wetland site only on a case-by-case basis. The guidelines call for a stricter appl icat ion of the "alternatives test" to special aquatic sites than to waters of the U.S. generally. Alternatives not involving a wetland are presumed to be available where a proposed activity is not "water-dependent ," that is, not requi r ing access or proximity to, or siting within, the wetland [40 CFR 230.10(a)(3)]. Further, where a discharge of dredged or fill material is proposed in a wetland, all practicable alternatives not involving the wetland are presumed to have less adverse impact on the affected aquat ic ecosystem.

T h e burden of proof on the appl icant for a wetland permit to demonstrate a need contrary to the presumpt ions imposed by the U.S. EPA guidelines would normal ly demand a site-specific evaluation or, in effect, an individual rather than a nat ionwide or other general permit . T h e EPA's approach is in tended to extend "special recognit ion of, or protect ion for, wetlands . . . . " (45 Fed. Reg. 249, p. 85339). The recently expanded use of general permits exempt ing certain wetlands and activities or discharges in wetlands from the scrutiny afforded by reviewing individual permi t applicat ions may frustrate this objective. For example, not requi r ing a site-specific evaluat ion of fills in prairie potholes and playa lakes now prevents any appl ica t ion of the alternatives test to these special aquat ic sites.

Clearly the EPA as the "watchdog" agency for wetland protect ion has adopted more str ingent rules than the permit t ing agency, the Corps of Engineers. T h e present adminis t ra t ion hopes to reconcile the two in its p rogram of regulatory reform. Areawide review of cumulative wetland impacts. It is well rcognized that the rout ine exercise of w author i ty to issue individual pe rmi t s c a n n o t provide for the assessment of cumula t ive , c o m p o u n d i n g , and sometimes irreversible impacts on wetlands from many individual projects that are weighed separately. The Corps of Engineers ' general policies for evaluat ing permit appl icat ions make a clear declaration (47 Fed. Reg. 141, p. 31804):

Although a particular alteration of wetlands may constitute a minor change, the curr~ulative effect of numerous such piecemeal changes often results in a major impairment of the wetland resources.

The separate examinat ion of potential effects at different but interrelated wetland sites cannot, by itself, account for the cumulat ive effects, so the Corps District Engineers are authorized to undertake "wet land reviews" to assess the area-wide cumulat ive impacts.

High-value wetland ecosystems under severe development pressure are the pr ime target of wetland reviews. Where an estuary, bay, lake or watershed system is under critical pressure, general permits may be inappropr ia te since careful assessment of each project's cont r ibut ion to cumulat ive impacts would be precluded, and there is no required report ing by general permittees. Therefore, general na t ionwide or regional permits migh t be withheld or revoked where

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such condi t ions are disclosed or projected by a wetland review. However, certain activities presumed to have both min ima l cumulat ive as well as separate impacts, and exempted under w from even a general permit , migh t prove troublesome. For example, " m i n o r dra inage" projects involving a wetland discharge of dredged or fill material accompanying normal farming, forestry, and ranching operat ions migh t actually accrue more than mino r cumulat ive effects, but escape any detection by wetland review.

Advanced identification o] unsuitable discharge sites. The provision in the U.S. EPA's w guidelines for advanced identification of sites unsui table (or suitable) for discharge of dredged or fill material (40 CFR 230.80) offers an approach to requi r ing more r igorous impact assessment for certain but not all wetlands. Wetland sites designated as unsui table by the permi t t ing author i ty (or U.S. EPA) may still be permitted, but the analysis of potential impacts and compl iance with requirements for mit igat ion may be more exacting. The U.S. EPA has stated (45 Fed. Reg. 249, p. 85342):

The intent of this section was to aid applicants by giving advance notice that they would have a relatively easy or difficult time qualifying for a permit to use particular areas.

Wetland areas predesignated and m a p p e d as pr ime or critical wetlands would logically be excluded from general nat ionwide, statewide, or regional permi t coverage since case-by-case impact assessment would be necessary (Figure 2). Th i s approach is prescribed in the EPA's guidelines (40 CFR 230.7):

If there are specific geographic areas within the purview of a proposed General permi t . . .which are more appropriately regulated by individual permits . . . they shall be clearly delineated in the evaluation and excluded from the permit.

In 1980, law professor Michael C. B lumm commented: "Regrettably, EPA has never made an advanced determinat ion. It has neither specified the procedures by which it would make such determinat ions, nor explicitly provided citizen o~por tuni t ies to request such determinat ions ."

The "wet land rev iew 'employed by the Corps of Engineers for cumulat ive impact assessment is another vehicle for designat ing an area as unsuitable, at least for certain activities, where a wetland district or su r round ing watershed may already have undergone considerable impact from development and now warrants more critical assessment. Conversely, a sensitive, unaltered wetland area capable of per forming functions impor tan t to the publ ic in teres tmfish spawning and rearing or the storage of storm and flood waters, for i n s t a n c e - - m i g h t also be designated as unsuitable. The states, being most familiar with local wetland values, could propose wetland areas or watersheds in which wetlands could be excluded from a general permit .

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Figure 2. This prime wetland overwintering site for migratory waterfowl in the semiarid southern Central Flyway, where any wetlands are scarce, is one example of many that should be excluded from the general permit program so that site-specific impact assessment would not be waived.

Defining wetland areas for prohibition of discharges. A special impact assessment p rob lem is presented where, under w author i ty , the U.S. EPA may proh ib i t discharges in defined areas of h igh-value water supply , wildlife, or recreation resources. Such values should ideally be assessed in advance of any p roposed deve lopment activities present ing a threat. Def ining wet land areas for ou t r igh t p roh ib i t ion might stem from p l a n n i n g studies to identify sites unsu i tab le for activities involv ing a discharge regulated under Section 404. Certain wet land sites deemed unsui tab le may actual ly warrant a prohib i t ion . T he same assessment criteria could be app l i ed to all sites, wi th the results indica t ing whether they are suitable, unsui table , or qual i f ied for a p roh ib i t ion .

B l u m m (1980) has suggested two ways to make good use of the w author i ty:

...in[ormation being collected by the National Wetlands Inventory...could identify areas meriting 404(c) protection. Similar information could also be produced by state coastal management plans which are required by the Coastal Zone Management Act to identity "'areas of particular concern'" and "'areas o[ preservation or restoration."

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One technique for identifying potential areas [or 404(c) advanced determinations, which EPA could borrow from the Marine Sanctuaries Program, is to solicit nominations [tom other ]ederal agencies, the states, and the public.

Even the Corps of Engineers wetland review could be l inked to the w author i ty since one of its purposes is " . . . to identify wetlands of such impor tance to the publ ic interest that Corps permits in such areas would ordinari ly be denied" (Moul ton 1978).

Farming, forestry and ranching activities in wetlands. According to Edward T h o m p s o n , Jr. (1977), "Congress clarified its original in tent ion to exclude rout ine ea r thmoving activities of agriculture, forestry and related industr ies . . , f rom case-by-case review under Section 404, with the unders tanding that their water qual i ty effects will be control led by the states through the prescript ion of 'best managemen t practices' (BMP) under Section 208 of the Act." However, dur ing the Congressional deliberations on this point , Senator Muskie explained that activities exempted from Section 404 would have to be "appropr ia te" for BMP regulat ion. Oddly, though, Congress later decreed under w that farm, forest, and m i n i n g roads required BMP control while many other exempted act ivi t ies-- const ruct ing irrigation ditches, for e x a m p l e - - p r e s u m a b l y did not.

The w exempt ions from any permit requirements do carry some condi t ions that ordinari ly migh t be expected to trigger an impact evaluation. For instance, " m i n o r dra inage" as part of normal farming, forestry, and ranching activities is not exempted i] it would convert the existing use of a wetland or impai r water flow and circulation. It is quite unclear how these condi t ional ly exempted situations would be reported and assessed. Now the Corps of Engineers ' new regulations, adopted on July 22, 1982, further complicate this part icular exemption; a ditch or dike that would drain or otherwise significantly modify a regulated wetland could not be considered a " m i n o r " drainage feature (47 Fed. Reg. 141). Again, as a matter of regulatory strategy, it is difficult to imagine how the impact of potent ial ly n o n m i n o r drainage would be evaluated since there are no repor t ing requirements under a permit exemption.

As for farm, forest, and m i n i n g roads that are subject to BMP regulat ion as a condi t ion for exemption, the problem of assuring compl iance with these more detailed condi t ions wi thout any impact assessment is still more difficult. It would appear that a need for BMP control would signal a parallel need for at least a general permit as a regulatory vehicle for impact assessment on an areawide basis. Without some investigation there is little assurance that exempted agricultural and m i n i n g activities incurr ing discharges in wetlands will produce no more than minor cumulat ive impacts.

Other activities causing discharges in wetlands. Although most of the out r ight exemptions were aimed by Congress at agriculture and

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mining, there are others affecting the cons t ruc t ion industry in general, such as bu i ld ing temporary sed imenta t ion basins. Also, discharges involv ing maintenance of exis t ing structures like causeways, levees, dikes, and dams are exempted. Again, both the Clean Water Act and the new Corps of Engineers Section 404 regula t ions impose condi t ions on g ran t ing the exempt ions . For instance, the regula t ions construe " m a i n t e n a n c e " to exclude " . . .any modif ica t ion that changes the character, scope, or size of the or iginal fill des ign" (47 Fed. Reg. 141, p. 31813). Since there are no repor t ing requi rements to help ascertain compl i ance with these condi t ions , any impact evaluat ion must occur after the fact as a result of surveil lance and enforcement . As observed by at torneys Parish and Morgan (1982), "...less substant ia l dischargers rarely comprehend that their activities are subject to federal regulat ion, unti l served with a Corps ' cease and desist order ." (See Figure 3.)

Figure 3. This small, isolated wetland fill is typical of many unlawful activities in wetlands that often go unobserved until after the fact when a real remedy is practically unattainable. As in most such situations, the landowners were unaware of any govern- ment jurisdiction until the activity was discovered by an enforcement agency.

A s imilar s i tuat ion appl ies to the activities and discharges exempted from individual project permits on the basis that either their separate or cumula t ive impacts wou ld always be min imal , that is, activities subject to na t ionwide permits that do not involve repor t ing by permit tees or any impact evaluat ion. For example , dredging or f i l l ing of less than 10 cubic yards as one comple te operat ion, or the

EIA R E V I E W 4/1 33

discharge of material for bedding and backfill of utility lines without changing original bottom contours, are subject only to a nationwide permit (47 Fed. Reg. 141). Other conditions, such as avoiding areas of concentrated shellfish production or breeding waterfowl, would apply, but the lack of reporting under a nationwide permit would obviate the need for any investigation except as part of an enforcement action after the fact.

This control strategy places a great regulatory burden on the enforcement effort while greatly relieving the burden on permit processing, but obstructing the assessment of impacts in advance of construction or development. Any estimate of potential impacts by permittees seeking compliance with nationwide permit conditions would be highly ambiguous. Parish and Morgan (1982) point out the ambiguity inherent in the language of the permit conditions:

,'t discharge will be permitted if it consists of "'suitable" materials free from tox ic substances, and the fill will be "properly" maintained. Certain classes of activities will be permitted if management practices are followed to the extent "practical" and adverse effects are minimized.

Problems of Exemption Activities in isolated intrastate wetlands. The federal judiciary, in cases such as Natural Resources Defense Council, Inc. v. Callaway have provided quite .adequate Section 404 geographic jurisdication over wetlands, including those adjacent to nonnavigable interstate waters and intrastate waters used for interstate commerce, both up to their headwaters. Related decisions expanding the definition of wetlands to all vegetation tolerating saturated soil conditions in Avoyelles Sportsman's League v. Alexander (Avoyelles II), and of discharges of dredged or fill material to include wetland vegetation (Avoyelles I), had reinforced this broad jurisdiction. Even isolated lakes and wetlands D p l a y a lakes, wet meadows, prairie potholes, and certain hardwood forested bot tomlands- -were covered if a discharge into them could affect interstate commerce, including water-related recreation involving interstate travelers.

However, a nationwide permit issued in 1977 exempted isolated intrastate waters and wetlands, except for natural lakes over 10 acres, from individual Section 404 permits and, therefore, case-by-case impact assessment (Figure 4). Under rules adopted in 1982 (47 Fed. Reg. 14_I) this permit further exempts even the large isolated natural lakes. The permit was issued without regard to intrinsic wetland values or the type or scale of activity producing a discharge of dredged or fill material.

However, w of the Clean Water Act clearly limits the issuance of nationwide permits to categories of activities. Issuing such a permit for a category of waters may exceed the authority granted in the Act, and ignoring the ecological values of exempted waters and

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Figure 4. This is an example of an isolated intrastate wetland exempted from site-specific impact assessment under a nationwide permit issued by the Army Corps of Engineers. The exemption does not take into account the intrinsic ecological value of a wetland or the type and scale of activity affecting it.

wet lands may prevent meet ing the proviso in the Act that na t ionwide permits canno t lead to more than min ima l separate or cumula t ive impacts . Other s ta tutory condi t ions set for this kind of exempt ion also . present a problem. Some condi t ions cannot ordinar i ly be evaluated by typical l andowners to determine if they are in compl iance , nor effectively evaluated by the regula tory au thor i ty since there are no repor t ing requi rements under a general permit . For example , the p lacement of fill in an isolated w e d a n d under the na t ionwide permi t canno t adversely modify the critical habi ta t of a threatened or endangered wildlife species m a de te rmina t ion normal ly cal l ing for specialized expertise. Also, to be exempt f rom an individual project permit , the fill must be main ta ined to prevent erosion and other non- po in t sources of po l lu t ion , yet the presence of the fill w o u l d be unrecorded.

Nationwide versus regional or state permits. In addi t ion to the na t ionwide permits covering discharges into wet lands adjacent to non- tidal interstate waters above their headwaters, and into isolated intrastate wetlands, there are 25 - -15 new and 10 preexist ing- na t ionwide permits adopted for codif icat ion under 33 C FR 330 (Code of Federal Regulations). T h e y cover specific categories of activities p r o d u c i n g discharges in wetlands and other waters. However , the

EIA R E V I E W 4/1 35

Corps of Engineers Districts have issued, or propose to issue, hundreds of regional general permits to state agencies, or covering a defined water body such as an estuary. Many of the regional permits duplicate or overlap the coverage of new nat ionwide permits. For instance, main tenance and minor dredging ( m a x i m u m of 10 cubic yards) is now allowed nat ionwide, while a more liberal general permit had already been issued by the Jacksonville District a l lowing maintenance dredging of residential canals ( m a x i m u m 5-foot depth), as reported by T h o m p s o n , Jr. (1977).

Ta i lo r ing of general permits issued regionally does allow some flexibility in recognizing regional differences, whereas nat ional ly un i form criteria are likely to be somewhat rigid and unrealistic. Some nat ionwide permits may be interpreted differently by District Engineers, as in def ining "expected h igh flows" that cannot be restricted by minor road crossing fills in wetlands or other waters. Consider ing the very different hydrologic impacts in h u m i d and arid regions, a regionally distinct definit ion of general permits appears much more valid than the nat ional ly un i form approach now being emphasized. Impact assessment under general permits can b e facilitated further by report ing requirements. However, according to B l u m m (1980):

[Although] District Engineers have the authority to impose reporting requirements as conditions to general permits, the Corps. maintains no records reflecting how many o] the approxz'mately 250 existing general permits have been issued with such requirements.

Need for reporting and monitoring cumulative impacts: Professor B l u m m has expressed the view, "Absent repor t ing requirements, the cumulat ive impacts of general permits remain largely a matter of speculat ion." He points out the criticism by the General Account ing Office of cumulat ive impact assessment by the Corps of Engineers in a 1977 report. It is not clear that our founda t ion of knowledge about impacts can suppor t the premise that activities or discharges and condi t ions specified under nationwi~le permits will necessarily ensure min imal adverse effects, particularly min imal cumulat ive adverse effects. For example, minor road crossing fills are permit ted in a non- tidal wetland if they discharge less than 200 cubic yards below ordinary h igh water and do not extend beyond 100 feet past the ordinary h igh water mark. Restriction of h igh flows must be prevented by culverts or bridging. However, successive minor crossings of tile same road over many isolated but closely spaced small palustr ine wetlands in the Great Plains or separated narrow riverine wetlands in a lakeshore delta cannot be said ahvays to involve only min ima l cumulat ive impacts.

Certainly an absence of repor t ing such activities typically p roduc ing cumulat ive adverse effects in a confined wetland locale or within a watershed conta in ing many wetlands will frustrate any effort at impact assessment. The Envi ronmenta l Protection Agency's

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w guidelines require documenta t ion and consideration by the permi t t ing authori ty of informat ion on cumulat ive impacts in the course of issuing a general permit (40 CFR 230.11 ). Some critics have chal lenged the sufficiency of documenta t ion suppor t ing the nat ionwide permits. Even with reporting, actual moni to r ing of overall effects such as water level changes may become necessary. Reliable forecasting based solely on reported activities may be infeasible.

Problems of Omission

Wetland dredging, draining and clearing without a discharge. A further impact assessment problem under Section 404 results from the apparent omiss ion of certain activities in wetlands from any regulatory control if they do not actually involve a discharge of dredged or fill material. On the other hand, federal judicial decisions may have extended Section 404 author i ty to cover some apparent exclusions, part icularly the clearing and dra in ing of wetlands. In the Avoyelles I decision, the clearing of wetland hardwood trees for p lan t ing of soybeans was construed as a discharge of dredged material involving a land use change beyond " n o r m a l " forestry practices, and therefore not an exempt activity. According to Parish and Morgan (1982), " . . . Avoyelles I tells us that virtually any change in the land use of a wetland area may constitute a discharge, subject to Section 404 permit requirements ."

7.

=. ?,

0

Figure 5. Dredging in this lakeside wetland does not invoh'e a discharge since the dredge spoil is pumped hydraulically to an upland disposal site. Therefore, tile activity is omitted from coverage under Section ,104 of the Clean Water Act, and no permit or impact evaluation is necessary.

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However, B l u m m (1980) is of the op in ion that, " . . . because 404 permit requirements apply only to discharges, where a wetland is drained wi thout a deposit of fill material, a 404 permit is not required." Similarly, if the spoil from dredging in a wetland is discharged at an up land site and no material is spilled into water dur ing dredging, then a permit is not required (Figure 5). B l u m m believes these l imitat ions considerably weaken the overall protect ion afforded to wetlands.

Wetland dewatering or flooding ]rom upland activities. T h e assessment of wetland impacts under Section 404 is further curtailed because upland or other offsite activities causing impacts may not be subject to regulatory control. In B lumm's review, he concludes that " . . . a 404 permit is not required for activities that alter up land drainage patterns and block runoff into wetlands because there is no discharge of dredged or fill material ." Conceivably, up land diversion of inflows to wetlands, which may cause dewatering, could result from activities such as small dams or stream diversions built above headwaters, or groundwater being pumped . Conversely, wetlands may be flooded due to stream channel izat ion or large releases from reservoirs.

Conclusion

The thrust of current change in the wetland regulatory strategy as initiated by the Army Corps of Engineers is to concentrate the government ' s l imited resources where they are needed most; that is, where wetlands are clearly at h igh risk from activities normal ly viewed as threatening. The costlier approach cal l ing for separate project permits, site-specific impact assessments, and rout ine surveillance cannot be justified from the s tandpoint of cost-effectiveness where the proposed activities are relatively benign. But the expand ing use of general permits covering these less damag ing activities may have to be tempered in several ways so the ecologically valuable wetlands can still be protected, especially from the unforeseen cumulat ive and c o m p o u n d i n g impacts that may result from many individually low- risk activities affecting the same natural system.

There are existing regulatory mechanisms that, if put to widespread use, would hedge against the danger of wholesale exempt ions fostered by the nat ionwide permi t program. The first restraint would be to produce better documenta t ion than offered so far to suppor t the premise that activities brought under general permits really cannot generate more than minor cumulative impacts, as mandated by tile Environmenta l Protection Agency (40 CFR 230.11).

The second restraint would be to make greater use of the Corps of Engineers ' areawide wetland review to assess cumulat ive effects where many similar activities are allowed under general permits wi th in the same natural system. If significant adverse cumulat ive effects are disclosed, that watershed or bay or estuary should be wi thdrawn from general permit coverage, as provided for under U.S. EPA regulat ions (40 CFR 230.7).

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A third restraint, instead of depend ing on the wet land review to uncover suspected cumula t ive impacts , w o u l d be to identify in advance the na tura l areas having wet lands considered unsui tab le for a discharge of dredged or fill material because of their h igh intr insic ecological or publ ic interest values (40 C F R 230.80). These areas w o u l d be wi thhe ld from general permi t coverage before irreversible damage could occur. Such areas could be b r ough t under watershed or estuary m a n a g e m e n t plans that wou ld specify a l lowable wet land activities in various wet land zones del ineated according to relative wet land values. Th i s app roach could be extended to isolated intrastate wet lands of high value that are now exempted under a na t ionwide permit .

T h e four th restraint wou ld be to issue general permits strictly on a s tatewide basis, or perhaps by river basin or o ther natural region, so critical differences a round the count ry are not ignored. Na t ionwide permits w o u l d not be permit ted at all. Th is approach is already provided for under Corps of Engineers regula t ions (33 C F R 325.5 and 33 C F R 330.7).

Beyond the app l ica t ion of restraints already avai lable under federal regulat ions, some a m e n d m e n t of the Clean Water Act may be indicated where Section 404 cannot offer wet land protec t ion except when a discharge of dredged or fill material is made. T h e loss of wetlands from dredging, draining, and clearing without a discharge, or f rom up land activities that f lood or drain wetlands, could be handled under a new section of the Act. Many other ref inements too numerous to recite here are suggested i n this review, and could be accompl ished by further ad jus tments to the Corps of Engineers ' and EPA's Section 404 regulat ions.

References

Blumm, M.C. 1980. The Clean Water Act's Section 404 Permit Program Enters its Adolescence: An Institutional and Pro- grammatic Perspective. Ecology Law Quarterly 8: 409-463.

Clark, J.R. and Zinn, J.A. 1978. Cumulative Effects in Environmental Assessment. In Coastal Zone "78 (Vol. II): Symposium on Technical, Environmental, Socioeconomic and Regulatory Aspects o/Coastal Zone Management. New York: American Society of Civil Engineers.

Dames and Moore. 1981. Methodology for the Analysis of Cumu- lative Impacts of Permit Activities Regulated by the U.S. Army Corps of Engineers. Ft. Belvoir, Virginia: Institute for Water Resources.

Larson, J.S. 1981. Wetland Value Assessment -- State of the Art. National Wetlands Newsletter 3: 4-8.

Lonard, R.O., Clairson, Jr., E.J., Huffman, R.T., Hardy, J.W., Brown, L.D., Ballard, P.E., and Watts, J.W. 1981. Analysis o[ Methodologies Used [or the Assessment o] Wetland Values. Washington, DC: U.S. Water Resources Council.

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Mouhon, R.J. 1978. Wetland Reviews: New Approach to the Corps Permit Program. In Coastal Zone "78 (Vol. II): Symposium on Technical, Environmental, Socioeconomic and Regulatory Aspects of Coastal Zone Management. New York: American Society of Civil Engineers.

Parish, G.E., and Morgan, J.M. 1982. History, Practice and Emerging Problems of Wetlands Regulation: Reconsider- ing Section 404 of the Clean Water Act. Land and Water Law Review. 17: 43-84.

Shabman, L., and Batie, S. 1981. Economic Analysis and Wet- land Policy. National Wetlands Newsletter, 3: 2-4.

Thompson, Jr., E. 1977. Section 404 o[ the Federal Water Pollu- tion Control Act Amendments of 1977: Hydrologic Modi[i- cation, Wetlands Protection, and the Physical Integrity of the Nation's Waters. Harvard Environmental Law Review 2:264-287

U.S. Army Corps of Engineers. 1980. Proposal to Amend Permit Regulations for Controlling Certain Activities in Waters o[ the United States. Federal Register 45, 184: 62732-62777.

U.S. Army Corps of Engineers. 1982. Interim Final Rules for Regulatory Programs of the Corps o[ Engineers. Federal Register 47, 141:31794-31834 (33 CFR 320-330).

U.S. Environmental Protetion Agency. 1979. Denial or Restric- tion of Disposal Sites: Section 404 Procedures. Federal Register 44, 196:58076-58085 (40 CFR 231).

U.S. Environmental Protection Agency. 1980. Guidelines for Specification o[ Disposal Sites for Dredged or Fill Material. Federal Register 45, 249:85336-85357 (40 CFR 230).

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