Assessing the relationship between Section 404 and wetland losses: a feasibility study

The primary objective of the Clean Water Act of 1977 (33 U.S.C. 1251) is to restore and maintain the physical, chemical, and biological integrity of the Nation's waters. Section 404 of the Act regulates the discharge of dredged or fill materials into wetlands and represents the primary Federal authority for regulation of wetland alterations. Since its inception, the Section 404 program has been controversial in regard to the extent to which it was intended to provide wetlands regulation.

Section 404 requires those who wish to discharge dredged or fill material into waters of the United States, which include many wetlands, to first obtain a Federal permit. The Environmental Protection Agency (EPA) has overall responsibility for administration of the Section 404 program and promulgates guidelines that must be followed in issuing permits. In addition, EPA has the final authority to prohibit specific discharges if the environmental impacts are unacceptable. The U.S. Army Corps of Engineers (Corps) issues Section 404 permits, which can be of two types. Individual Permits are issued following case-by-case reviews of proposed discharges. General Permits, which can be either nationwide or regional in scope, are authorized by the Corps for categories of activities that are similar in nature and that have only minimal individual and cumulative adverse environmental impacts. EPA, the National Marine Fisheries Service (NMFS), the Fish and Wildlife Service (Service), and State natural resource agencies review and comment on permit applications and offer recommendations on appropriate mitigation measures. Although comments from the Service and other natural resource agencies are advisory in nature (EPA's veto authority excepted), they can serve as the basis for modifying, conditioning, or denying a Section 404 permit.

In 1986, in a survey conducted by the National Ecology Research Center, Service personnel indicated interest in additional information concerning both wetland trends and the impacts of activities authorized by the Corps under Section 404 (Roelle 1986). Although there is some information concerning wetland losses for certain geographic areas and for the Nation as a whole (Frayer et al. 1983; Tiner 1984), there appears to be little information on how these losses relate to the Section 404 permitting process. The primary objective of this study was to determine the feasibility of estimating wetland losses in relationship to Individual and General Permits issued under Section 404. A secondary objective was to assemble data on acceptance and implementation of specific mitigation recommendations offered by the Service and other natural resource agencies in connection with development activities on wetlands examined.

At present, 26 categories of Nationwide permits have been authorized by the Corps. Nationwide permit 26 was of particular interest in this study because it specifically authorizes discharges into wetlands under certain circumstances (see Figure 1 and related text for a more complete discussion of circumstances under which Nationwide Permit 26 is applicable). All subsequent references to Nationwide or General permits pertain to Nationwide Permit 26.