The Army Corps of Engineers and Nationwide Permit 26: Wetlands Protection or Swamp Reclamation

Transcription

1 Ecology Law Quarterly Volume 18 Issue 3 Article 3 June 1991 The Army Corps of Engineers and Nationwide Permit 26: Wetlands Protection or Swamp Reclamation Thomas Addison Timothy Burns Follow this and additional works at: Recommended Citation Thomas Addison & Timothy Burns, The Army Corps of Engineers and Nationwide Permit 26: Wetlands Protection or Swamp Reclamation, 18 Ecology L. Q. 619 (1991). Available at: Link to publisher version (DOI) This Article is brought to you for free and open access by the Law Journals and Related Materials at Berkeley Law Scholarship Repository. It has been accepted for inclusion in Ecology Law Quarterly by an authorized administrator of Berkeley Law Scholarship Repository. For more information, please contact jcera@law.berkeley.edu.

2 The Army Corps of Engineers and Nationwide Permit 26: Wetlands Protection or Swamp Reclamation? Thomas Addison * Timothy Burns** CONTENTS Introduction I. The Evolution of Nationwide Permit A. Brief History of the Corps of Engineers B. The Passage of Section 404 of the Clean Water Act C. Setting the Stage for Nationwide Permits: Natural Resources Defense Council v. Callaway D. The Corps' Response to Callaway E. Congressional Approval in the Clean Water Act Amendments of F. Regulatory Relief and Continued Citizen Group Involvem ent G. The Structure.of NWP II. Administration and Enforcement of NWP 26, with Special Emphasis on Northern California A. Lack of Information B. Other Evaluations of NWP C. Administration and Enforcement of NWP 26 in Northern Californa Problems with the PDN Process Copyright 1991 by ECOLOGY LAW QUARTERLY * M.P.P. 1991, Graduate School of Public Policy, University of California at Berkeley; B.A. 1985, Williams College; Environmental Scientist, Wetlands Section, Environmental Protection Agency Region I (Boston, ). ' Candidate for J.D., School of Law (Boalt Hall), University of California at Berkeley; M.P.P. 1991, Graduate School of Public Policy, University of California at Berkeley; B.A. 1986, University of California at San Diego. This comment was originally prepared for a seminar on environmental enforcement at Boalt Hall in fall 1990, led by Professors John Dwyer and Robert Kagan. The authors appreciate the comments of the seminar participants and professors and the time and thoughts of those we interviewed during the course of our research.

3 ECOLOGY LAW QUARTERLY [Vol. 18: Failure to Account for the Value of California W etlands Absence of a Monitoring System Application of the Management Practices Enforcement Style D. An Illustrative Case: The Foothill Park Development. 649 III. Explanations of the Design and Implementation of N W P A. Models of Regulatory Style B. Application to NWP The Appearance of General and Regulatory Perm its The Evolution of NWP The Design and Administration of NWP C onclusion INTRODUCTION In 1985, John Drake, the owner of Drake Development, began grading roads for the Foothill Park subdivision and townhouse complex on the east side of Chico, California.' Drake believed that the local and county permits he had obtained were all the approvals needed for his development. However, Drake was building on land covered with a patchwork of vernal pools and swales, areas covered with water during part of the spring. These areas, common in California's interior prior to current farming and development patterns, are defined as wetlands under section 404 of the federal Clean Water Act (section 404).2 Wetlands are intermediate on a continuum between dry land and permanent water bodies. 3 In general, these ecosystems are highly valuable, both environmentally and economically. They often provide excellent habitat for an exceptionally wide variety of animals and plants, help prevent floods, remove toxic material from surface water, and recharge groundwater supplies. 4 To preserve these benefits, section 404 mandates 1. All information about the Foothill Park project is based on the voluminous U.S. Army Corps of Engineers file on the case located at the Sacramento offices of the Corps. 2. Federal Water Pollution Control Act Amendments of 1972 [hereinafter, 1972 CWA Amendments], 404, 33 U.S.C (1988). The regulations which implement 404 define wetlands as those areas that are inundated or saturated by surface or ground water 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. 33 C.F.R (b) (1990). 3. W. MITSCH & J. GOSSELINK, WETLANDS 16 (1986). 4. Id. at

4 1991] ARMY CORPS OF ENGINEERS AND NWP 26 that no wetlands, even if privately owned, can be filled without a permit from the U.S. Army Corps of Engineers (the Corps). 5 On February 7, 1990, Patrick Kelly of the California Native Plant Society wrote to Barbara Benge in the Regulatory Division of the Corps' Sacramento District office. He reported that Drake Development was working in what appeared to be wetlands. 6 His letter stated that "68 homes and an extensive townhouse complex" were under construction. 7 With its attention thus piqued, the Corps began conducting site visits, writing letters, and holding meetings with the developer, his consultants, other regulatory agencies, and private citizens. Six months later, Robert Junell of the Corps' Sacramento District allowed the Foothill Park project to continue. 8 He ruled that the 0.98 acres of wetlands fill already completed, as well as the 1.2 acres of additional fill needed to complete the development, had been authorized before the project was begun. 9 This preauthorization was accomplished through the use of one of the Corps' twenty-six nationwide permits (NWP's).1o NWP's are regulations issued by the Secretary of the Army as part of the Corps' implementation of section They nationally authorize certain kinds of fill, certain amounts of fill, or fills in certain types of waters, as long as the fill meets specified conditions 12 and the filler abides by specified management practices. 13 The specific NWP invoked in the Foothill Park case was Nationwide Permit 26 (NWP 26).14 NWP 26 authorizes fills into waters that are either "isolated" or "above the headwaters." 15 Such waters are usually wetlands. NWP 26 authorizes only projects that would fill or otherwise cause substantial adverse modification of less than ten acres of such waters (larger fills trigger individual permit requirements), and requires 5. Section 404(a) authorizes the issuance of permits. Federal Water Pollution Control Act Amendments of 1972, 404(a) (codified as amended at 33 U.S.C. 1344(a) (1988)). The regulations implementing 404 require a permit for filling wetlands. 33 C.F.R (a) (1990). 6. Letter from Patrick Kelly, Conservation Chair, Mount Lassen Chapter, California Native Plant Society, to Barbara Benge, Sacramento District Office, U.S. Army Corps of Engineers (Feb. 7, 1990). 7. Id. 8. Letter from Robert W. Junell, Sacramento District Office, U.S. Army Corps of Engineers, to Dan Drake (John D. Drake) (Aug. 8, 1990). 9. Id C.F.R (a) (1990). 11. Id Id (b). 13. Id Id (a)(26). 15. Id. For definitions of these terms, see infra note 119.

5 ECOLOGY LAW QUARTERLY [Vol. 18:619 prior notification to the Corps for fills between one and ten acres in size. 16 The Foothill Park decision highlights important aspects of the design and administration of NWP NWP 26, as illustrated by this case, represents the Corps' response to two regulatory dilemmas. One is the endemic problem of meeting ambitious Congressional goals with limited, often inadequate resources. Mandated to do more than can be expected given their personnel and budget, agencies must find ways to stretch their available resources. NWP's are the Corps' solution to resource limitations in the case of section 404. The other dilemma, which has emerged more recently, is the need to confront diffuse and individually insignificant sources of pollution. Unlike the initial targets of environmental regulation which were large, highly visible sources of pollution, today's targets include household hazardous waste, air pollution from mobile sources, and dispersed runoff into streams and estuaries. While such sources are individually inconsequential, they can cumulatively pollute in amounts that equal or exceed large sources. Moreover, the widespread nature of these targets presents particularly severe problems for resource-constrained agencies. In the Corps' case, the problem is small wetlands fills conducted all over the United States by all kinds of people for a wide variety of purposes. The Corps addressed this problem with NWP 26. While numerous commentators have probed and evaluated the section 404 program as a whole, 18 few have written specifically about NWP In this Comment we examine the evolution, design, and administration of this regulatory device in order to determine how best to explain the behavior of the Corps. In part I, we describe the evolution of NWP 26, and discuss its current form in detail. In part II, we examine the administration and enforcement of NWP 26, focusing on northern Cali C.F.R (a)(26) (1990). For a detailed description of NWP 26, see infra notes and accompanying text. 17. For a detailed description of the Foothill Park project and the events leading to the Corps' authorization of the fill, see infra notes and accompanying text. 18. See, e.g., Blumm & Zaleha, Federal Wetlands Protection Under the Clean Water Act: Regulatory Ambivalence, Intergovernmental Tension, and a Call for Reform, 60 U. COLO. L. REv. 695 (1989); Power, The Fox in the Chicken Coop: The Regulatory Program of the US. Army Corps of Engineers, 63 VA. L. REV. 503 (1977); Ablard & O'Neill, Wetland Protection and Section 404 of the Federal Water Pollution Control Act Amendments of 1972: A Corps of Engineers Renaissance, I VT. L. REV. 51 (1976). 19. We are aware of only Goldman-Carter, Nationwide Permit 26: The Wetlands Giveaway, NAT'L WETLANDS NEWSL., Nov.-Dec. 1989, at 4; Goode, In Defense of Nationwide Permit 26, NAT'L WETLANDS NEWSL., Nov.-Dec. 1989, at 4; Laney, Preliminary Assessment of the Cumulative Effect of Nationwide Permit 26 on Headwater and Isolated Wetlands and Deepwater Area and Functions with Policy Implications, in REPORTS: 1989 ENVIRONMENTAL SCIENCE AND ENGINEERING FELLOWS PROGRAM 21 (Am. Ass'n for the Advancement of Science & U.S. EPA eds. 1989).

6 1991] ARMY CORPS OF ENGINEERS AND NWP 26 fornia. In part III, we develop and apply three models of regulatory behavior to the evolution, design, and administration of NWP 26. We find that NWP 26 is best explained by viewing the Corps' behavior as shaped primarily by an organizational ideology based on its historical roots. In the conclusion, we assess NWP 26's effectiveness, in light of the purposes of the Clean Water Act, the Bush Administration's stated wetlands policy of "no net loss," and broader wetlands protection concerns. NWP 26 is only one of a variety of potential regulatory responses to the problem of regulating small, widespread wetland fills with limited resources. As we discuss in detail, the Corps' selection of this approach and its administration of the NWP 26 program provide insights into the nature of the Corps as a regulatory agency. In turn, these insights have significant implications for wetlands protection, including the Administration's claimed policy of "no net loss" of wetlands. 20 I THE EVOLUTION OF NATIONWIDE PERMIT 26 Knowledge of the long and complicated history of NWP 26 is critical to understanding both why and how the Corps uses NWP 26 today. In this part we first examine the history of the Corps, and then discuss the passage of section 404 of the Clean Water Act. We analyze how the Corps initially responded - or more accurately, failed to respond - to its responsibilities under this legislation. We next study promulgation of the nationwide permit, the Corps' response to a court order requiring it to implement the full regulatory scope of the Clean Water Act. We then examine Congress' endorsement of expansive section 404 jurisdiction and nationwide permits in the 1977 Clean Water Act amendments, and discuss the subsequent expansion of the NWP program, including the influence of President Reagan's regulatory relief agenda and continued citizen group involvement, leading to NWP 26 in its current form. This part concludes with a detailed description of the current structure of NWP 26. A. Brief History of the Corps of Engineers For its first 89 years, the U.S. Army Corps of Engineers was a military and civil works agency. The Corps was created by Congress in 1802 to erect and maintain frontier forts and other defense facilities. 2 1 Soon its activities extended to coastal installations, and over the course of the nineteenth century the Corps' purposes expanded from fortification of 20. See Peterson, Bush Vows to Fight Pollution, Install 'Conservation Ethic'; Speech Distances Candidate From Reagan, Washington Post, Sept. 1, 1988, at Al. 21. Act of March 16, 1802, ch. 9, 26, 2 Stat. 132, 137; Blumm & Zaleha, supra note 18, at 700.

7 ECOLOGY LAW QUARTERLY [Vol. 18:619 defense facilities to making changes to rivers and harbors to promote navigation. 22 Throughout this period, the draining and filling of wetlands for land "reclamation" was national policy.23 Congress granted the Corps its first regulatory authority in order to preserve federal control over maintaining navigability of the Nation's waterways. In 1888, the Supreme Court held that, in the absence of a federal regulatory scheme, states could authorize or prohibit dams, bridges, and other obstructions to navigation. 24 Congress responded by enacting the Rivers and Harbors Act of 1890, requiring the prior approval of the Secretary of War for all construction activities and other obstructions to navigation, and for depositing refuse into navigable waters. 25 Prior approval was "designed especially to protect harbor areas from the congestion caused by random unplanned construction of wharves and piers." 26 These provisions were continued largely unaltered (for purposes of this Comment) in the Rivers and Harbors Act of 1899,27 and have remained essentially unchanged since then. The Rivers and Harbors Acts "subjected a sweeping range and number of activities to... regulation" by the Corps. 28 In particular, section 13 (also known as the Refuse Act) "prohibited the deposit of any refuse material of any kind into any navigable waters." ' 29 The scant legislative history of the 1899 Act "makes only one thing clear: The act was passed to protect navigation." 30 Thus, the Corps' original regulatory authority was a strategy to protect federal interests in navigation from interference by states. As we later show, this interest in protecting navigation also influenced the legislation underlying the Corps' current wetlands regulations, including NWP Perhaps in keeping with the legislative strategy, the Corps severely restricted its monitoring and enforcement activities under the Rivers and Harbors Act. 32 The Corps' regulatory restraint earned it a reputation as a benevolent, laissez faire overseer of private development, 33 merely ensuring that these activities would not go uncoordinated and thereby re- 22. Power, supra note 18, at 506; see, e.g., Act of May 26, 1824, ch. 153, 4 Stat. 38 (authorizing river and harbor improvements in aid of navigation). 23. Blumm & Zaleha, supra note 18, at 700; see, e.g., Swamp Lands Act of Sept. 28, 1850, ch. 84 1, 4, 9 Stat. 519, (codified at 43 U.S.C (1988)). 24. Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1 (1888). 25. Rivers and Harbors Act of 1890, ch. 907, 6, 7, 10, 26 Stat. 426, Power, supra note 18, at Rivers and Harbors Act of 1899, ch. 425, 9, 10, 13, 30 Stat. 1121, (codified at 33 U.S.C. 401, 403, 407 (1988)). 28. Power, supra note 18, at Id. (emphasis in original). 30. Ablard & O'Neill, supra note 18, at See infra notes and accompanying text. 32. Power, supra note 18, at Id. at 505; See also Moser, Mangrove Island is Reprieved by Army Engineers, SMrH- SONIAN, Jan. 1977, at 69,

8 1991] ARMY CORPS OF ENGINEERS AND NWP 26 suit in hindrances to navigation. The Corps' own construction activities reinforced this reputation. As the largest civil engineering firm in the world (controlling over 25,000 miles of waterways and operating more than 400 dams and manmade lakes) and the Nation's largest producer of hydroelectric power, 34 the Corps was thought to be "instinctively... sympathetic to the private developer. '35 As public and Congressional concern over water quality grew during the late 1950's and 1960's, the Corps began to feel pressure to extend its regulatory attention to water quality and natural resource conservation in addition to navigation. For example, to prevent the loss of wildlife resources, the Fish and Wildlife Coordination Act of required federal agencies to consult with the Fish and Wildlife Service (the FWS) prior to their own efforts, or their permitting of others' efforts, to control or modify water bodies. 37 In addition, in 1966 President Johnson issued an Executive order requiring Federal Government agency heads to "provide leadership in the nationwide effort to improve water quality through prevention, control, and abatement of water pollution from Federal Government activities in the United States." ' 38 Finally, the National Environmental Policy Act 39 required the Corps to issue an Environmental Impact Statement for each major federal action, including the granting of a permit, likely to have significant effects on the environment. 4 The Corps' primary response to this pressure was to alter its Rivers and Harbors Act permit program by adopting a "public interest" criterion for granting permits. 41 Previously, the Corps' only concern in considering permits for construction and other activities under the Rivers and Harbors Act was their potential effects on navigation. Under the public interest approach, the Corps expanded its review process temporarily to include "all relevant factors, including... navigation, fish and wildlife, conservation, pollution, aesthetics, ecology, and the general public interest." '42 This new approach was not mere rhetoric, for in 1967 the Secretary of the Army denied a permit to dredge and fill eleven acres of tidal wetlands in Boca Ciega Bay, Florida. 43 The Corps' District and Division 34. Moser, Dig They Must, the Army Engineers Securing Allies and Acquiring Enemies, SMITHSONIAN, Dec. 1976, at 40, Moser, supra note 33, at Pub. L. No , 72 Stat. 563 (1958) (codified at 16 U.S.C c (1988)) U.S.C. 662(a) (1988). 38. Exec. Order No. 11,288, 31 Fed. Reg (1966). 39. National Environmental Policy Act of 1969, Pub. L. No , 83 Stat. 852 (1970) (codified at 42 U.S.C.A (b) (West 1977 & Supp. 1990)) U.S.C. 4332(2)(C) (1988) Fed. Reg. 18,671 (1968) (recodified by 42 Fed. Reg. 37,133 (1977) at 33 C.F.R (1990)). 42. Id. 43. See Zabel v. Tabb, 430 F.2d 199, 202 (5th Cir. 1970) (quoting findings of the District

9 ECOLOGY LAW QUARTERLY [Vol. 18:619 Engineers, responding to widespread opposition among state and federal agencies and the public, ruled that the project was not in the public interest." 4 The landowners sued for injunctive relief, winning a District Court order requiring the Corps to issue the requested permit. 45 Upon review, the Fifth Circuit reversed, holding that the Corps had the power under the Rivers and Harbors Act of 1899, as interpreted consistently with the Fish and Wildlife Coordination Act and the National Environmental Policy Act, to deny a permit based on ecological factors even though the project would not affect navigation. 46 One might be tempted to interpret the Corps' action in Boca Ciega Bay as having signaled a new, environmentally protective approach to its permit program. But the Corps' "public interest" standard involved a variety of factors besides environmental protection. 47 Indeed, although the opposition to the Boca Ciega Bay project was based on environmental concerns, the District and Division Engineers' recommendations cited the opposition and not the environmental effects as the reason for denial. 48 While any conclusion is speculative, in the absence of such widespread opposition, the Corps might have granted the permit. The Corps was not obligated specifically to protect the environment until enactment of the Federal Water Pollution Control Act Amendments of 1972 (the Clean Water Act or CWA). 49 The Clean Water Act established a national policy to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." ' 50 To carry out this policy, Congress declared unlawful the discharge of pollutants into waters of the United States. 5 ' B. The Passage of Section 404 of the Clean Water Act The CWA's general prohibition against discharges of pollution into the Nation's waters was mitigated by two exceptions. First, in section 402, Congress established the National Pollutant Discharge Elimination System (NPDES), administered by the Environmental Protection Agency (EPA) which set a timetable for eliminating pollutants from effluent into waters of the United States. 5 2 Second, in section 404, Conand Division Engineers). 44. Id. 45. Zabel v. Tabb, 296 F. Supp. 764 (M.D. Fla. 1969). 46. Zabel v. Tabb, 430 F.2d at See supra notes and accompanying text. 48. See supra note 44 and accompanying text CWA Amendments, supra note 2, Pub. L. No , 86 Stat. 816 (codified as amended at 33 U.S.C (1988)). Because NEPA's requirement that the agency consider the environmental effects is purely procedural, it was not until the Clean Water Act that actual alterations of agency behavior were required CWA Amendments, supra note 2, 101(a), 33 U.S.C. 1251(a) (1988). 51. Id. 301, 33 U.S.C (1988). 52. Id. 402, 33 U.S.C (1988).

10 1991] ARMY CORPS OF ENGINEERS AND NWP 26 gress allowed the Corps to approve discharges of dredged or fill material into navigable waters. 5a Section 404 thus operates as an exception to both the CWA's general prohibition against pollution in waterways and the NPDES. Congress enacted section 404 because of concern that the NPDES, if applied stringently, could prohibit work needed to maintain navigation. 54 Section 404 work typically involves dredging waters used for navigation and disposing of the dredged spoil, often by dumping it in nearby wetlands or water bodies. In the absence of section 404, dredged spoil disposal could violate the CWA in two ways. First, it smothers benthic life 5 " and displaces water with land, thereby polluting the water. 5 6 Second, the dredged spoil may contain chemicals whose discharge is prohibited by section 301 of the Act. 57 Proponents of amendments exempting permits for discharges of dredged or fill material from the general prohibition and/or the NPDES cited concerns which the House Public Works Committee highlighted as "maintenance of interstate and foreign commerce." ' 58 This indicates their intent to protect these activities from being shut down by the CWA. Section 404 was also an exception to the CWA's general scheme, because it put discharge permitting authority in the Corps rather than EPA, which otherwise was given pervasive administrative responsibility for the Act. Despite the Corps' recent adoption of a broad "public interest" standard of review for Rivers and Harbors Act permits, it still was considered friendly to development interests. 5 9 Moreover, the Corps naturally had an interest in avoiding having its own extensive dredging and filling activities subject to the regulatory authority of EPA. 6 Motivated by these factors and armed with an established permit program, the Corps, with the assistance of the dredging industry, successfully sought to retain authority over dredging and filling in navigable waters. 61 Thus, as with the Rivers and Harbors Act, the Corps' regulatory authority was motivated by a desire to protect the Corps' own activities and interests. However, while section 404 authorizes the Corps to issue permits for filling navigable waters, the Corps does not exercise this authority 53. Id. 404(a), 33 U.S.C. 1344(a) (1988). 54. Ablard & O'Neill, supra note 18, at Benthic life forms are bottom-dwelling organisms, such as numerous mollusk and crustacean species. WEBSTER's THIRD NEW INT'L DICTIONARY 204 (1986). 56. See Caplin, Is Congress Protecting Our Water? The Controversy Over Section 404, Federal Water Pollution Control Act Amendments of U. MIAMI L. REV. 445, 449 (1977) (chemical and physical effects of dredging and filling are types of pollution) CWA Amendments, supra note 2, 301, 33 U.S.C. 1311(1988); see also Caplin, supra note Ablard & O'Neill, supra note 18, at Moser, supra note 34, at 51; see also Caplin, supra note 56, at Blumm & Zaleha, supra note 18, at Caplin, supra note 56, at

11 ECOLOGY LAW QUARTERLY [Vol. 18:619 independently. EPA was given the authority to promulgate guidelines governing the Corps' administration of permits. 62 EPA also was given the power to veto the Corps' granting of a permit when it finds that the activity would have "an unacceptable adverse effect" on water quality. 63 C. Setting the Stage for Nationwide Permits: Natural Resources Defense Council v. Callaway As noted earlier, the authority of section 404 extended to "navigable waters." 64 The Corps and EPA initially adopted dramatically different interpretations of "navigable waters" for implementing section 404. The Corps interpreted this term consistently with its meaning in the Rivers and Harbors Act. There, navigable waters are those "subject to the ebb and flow of the tide or were, are, or could be made navigable in fact." '65 This interpretation reflected the Corps' view that section 404 was essentially an exception from the NPDES program designed to protect its own dredging and filling activities, and its Rivers and Harbors Act regulations. 66 Under that view, no expansion in jurisdiction was called for. In contrast, EPA relied on the legislative history of the CWA to adopt a broad definition of navigable waters. 67 The legislative history contained indications that Congress intended the jurisdictional scope of the CWA to be sufficient to control pollution at its source. 68 The text of the Act reflected this intent by equating the phrase "navigable waters" of section 404 with "waters of the United States." '69 According to EPA's interpretation, this created regulatory authority over not only waters that were navigable under the Corps' definition, but also their nonnavigable tributaries. This difference was resolved in favor of EPA's interpretation in Natural Resources Defense Council (NRDC) v. Callaway, 70 a challenge to the Corps' restrictive interpretation brought by citizen environmental groups. The District Court for the District of Columbia held that Congress, by defining "navigable waters" as "waters of the United States,"1 7 ' intended to assert the full jurisdictional scope allowed by the Commerce Clause of the United States Constitution. 7 2 The court therefore found CWA Amendments, supra note 2, 404(b)(1), 33 U.S.C. 1344(b)(1) (1988). 63. Id. 404(c), 33 U.S.C. 1344(c) (1988). 64. Id. 404(a), 33 U.S.C. 1344(a) (1988). 65. Caplin, supra note 56, at 449 (citing Economy Light & Power Co. v. United States, 256 U.S. 113, 123 (1921), The Daniel Ball, 77 U.S. (10 Wall.) 557, 563 (1870), and United States v. Appalachian Elec. Power Co., 311 U.S. 377, (1940)). 66. Blumm & Zaleha, supra note 18, at Id. 68. Id. at 704 n.51; Caplin, supra note 56, at CWA Amendments, supra note 2, 502(7), 33 U.S.C. 1362(7) (1988) F. Supp. 685 (D.D.C. 1975) CWA Amendments, supra note 2, 502(7), 33 U.S.C. 1362(7) (1988). 72. Callaway, 392 F. Supp. at 686.

12 1991] ARMY CORPS OF ENGINEERS AND NWP 26 that the Corps had acted "unlawfully and in derogation of its responsibilities under section 404," and ordered it to promulgate regulations "clearly recognizing the full regulatory mandate of the Water Act." ' 73 This decision vastly expanded the Corps' regulatory domain. Under the Rivers and Harbors Act, the Corps' jurisdiction extended only to those waters that had been or could be used for navigation. The court's decision required the Corps to expand its jurisdiction to nonnavigable tributaries of navigable waters, all interstate waters, and intrastate waters having an influence on interstate commerce as defined by judicial interpretations of the Commerce Clause. D. The Corps' Response to Callaway The Corps responded to Callaway by issuing expanded regulations, but not without also making known its displeasure with the decision. The Corps soon proposed regulations for implementing section 404, presenting four alternative approaches for dealing with its expanded regulatory mandate. 74 Simultaneously, however, the Corps issued a press release asserting that the decision would force it to require permits for "the rancher who wants to enlarge his stock pond, or the farmer who wants to deepen an irrigation ditch or plow a field, or the mountaineer who wants to protect his land against stream erosion."" T 7 Predictably, this press release aroused the ire of interests on all sides of the jurisdictional controversy, and activated Congressional interest in the scope of section Following receipt of extensive comments on the proposed regulations, the Corps promulgated a set of "interim final" section 404 regulations and requested further comment. 77 Significantly, these regulations limited the Corps' jurisdiction to streams below the headwaters point, and to lakes larger than five acres in surface area. 78 Included in these regulations was the Corps' first regulatory permit, 79 which formed the pattern for subsequent nationwide permits, including NWP 26. This permit applied to the waters added to the Corps' jurisdiction by the Cal- 73. Id Fed. Reg. 19,766, 19, (1975). 75. Blumm & Zaleha, supra note 18, at 705 n.56 (quoting Office of the Chief, Dep't of the Army, Press Release, (May 6, 1975)). 76. Comprehensive Wetlands Protection: One Step Closer to Full Implementation of 404 of the FWPCA, 5 Envtl. L. Rep. 10,099, 10,102 (1975); see also Caplin, supra note 56, at Fed. Reg. 31,320 (1975). Commentators Ablard and O'Neill note that these interim final regulations received over 1500 comments. In their opinion the overall result "of soliciting public comment on both the original four alternatives and the interim final regulation" was "an extensive and meaningful public dialogue." Ablard & O'Neill, supra note 18, at 80 n Fed. Reg. 31,320, 31,325 (1975). 79. Id. at 31,326.

13 ECOLOGY LAW QUARTERLY [Vol. 18:619 laway decision. 80 It authorized all bulkheads and fills that were shorter than 500 feet, were constructed for property protection and would fill, on average, less than one cubic yard per running foot."' It stipulated that various conditions be met before commencing work 8 2 and allowed the District Engineer to require individual permit processing based on water quality concerns. 8 3 This regulatory permit apparently was prompted by concerns over the scarce administrative resources available for the section 404 program. 8 4 The Corps announced that this regulation was "essential in order to make this program manageable from a manpower and resources point of view" While still "protect[ing] the aquatic environment." 8 5 The Corps also indicated its intent "to rely heavily on the general public to bring to the attention of the District Engineer those... activities which... should be regulated on a case by case basis." 8s6 This belief in the administrative importance of the regulatory permit approach, and reliance on the public to make the Corps aware of potential problems in its application, persist in the NWP program today. Another significant feature of the interim final regulations was a procedure for processing "general" permits. 8 7 This procedure allowed the District Engineer to issue a single permit for certain "clearly described categories of structures or work" that otherwise would require individual permits. 8 General permits were available for only "substantially similar" activities having minimal adverse environmental effects, whether considered individually or cumulatively. 89 When issuing a gen- 80. The permit applied to "navigable waters," which were distinct from "navigable waters of the United States." Id The Corps defined "navigable waters of the United States" as waters used in the past, currently used, or susceptible to use in interstate commerce. Id at 31,324. This definition was consistent with the definition of navigable waters under the Rivers and Harbors Act. The Corps defined "navigable waters" as "used... for purposes of Section 404 of the [CWA]," much more broadly so as to encompass the mandate of the Clean Water Act as interpreted by the Callaway court. Id. at 31, Id. at 31,326. Bulkheads are structures erected along waterways to control the flow of the water. 82. Specifically, it required (1) that a state water quality certification be obtained or waived, (2) that a certification of compliance with coastal zone requirements be obtained if applicable, (3) that the discharge not be in proximity to a public water supply intake, (4) that the discharge would not contain unacceptable levels of pathogenic organisms in an area used for water sports, (5) that the discharge would not be in an area of concentrated shellfish production, and (6) that the discharge would not destroy or endanger critical habitat of an endangered species. Id. 83. Id. 84. Bernard Goode, Chief of Regulatory Programs in the Corps at the time, noted that the Corps received no new resources for executing its expanded responsibilities, following the Callaway decision. Goode, supra note 19, at Fed. Reg. 31,320, 31,322 (1975). 86. Id. 87. Id. at 31, Id. 89. Id.

14 1991] ARMY CORPS OF ENGINEERS AND NWP 26 eral permit, the District Engineer was to prescribe conditions specifying the maximum quantity of material authorized to be discharged, the category or categories of activities, and the type of waters in which the activity could occur. 90 The Corps "hope[d] this mechanism [would] go far in making our entire regulatory program administratively manageable." 91 Despite the promulgation of these regulations, there is some evidence that the Corps did not expect its expanded jurisdiction to last. Indeed, a wetlands regulatory consultant who at the time was on the Corps' staff working on this program recalls being told not to work very hard on the regulations for waters beyond those traditionally considered navigable, because Congress was expected to take away the Corps' authority over these waters. 92 This expectation appears to have had some foundation, as there were some thirty bills introduced during the remainder of the 94th Congress that would have restricted the Corps' jurisdiction in some way. 9 3 The broad scope of section 404 did continue, however, and in July of 1977 the Corps issued revisions to its regulations. 94 These revisions significantly reorganized the entire regulatory program, altering its jurisdictional limits and promulgating a wide array of nationwide permits under both section 10 of the Rivers and Harbors Act of 1899 and section Jurisdictionally, the major changes were to extend the scope of the Corps' authority to the entire length of streams (rather than to those sections below the headwaters) 96 and to remove the size limit on the definition of lakes. 97 However, the Corps coped with these expansive new definitions of its jurisdiction by increasing its use of NWP's. The origins of NWP 26 can be found in four separate permits authorizing discharges into isolated waters and waters above the headwaters. 98 Included in these permits were rivers and streams above the headwaters, 99 natural lakes under ten acres in surface area fed or drained by a stream above the headwaters, 1 and isolated lakes and other waters Id. 91. Id at 31, Telephone interview with Terry Huffman, Principal, Huffman & Associates, Inc. (Nov. 7, 1990) [hereinafter Huffman Interview]. 93. Power, supra note 18, at 525. For a discussion of the most prominent of these proposals, see Caplin, supra note 56, at Fed. Reg. 37,122 (1977). 95. Id. at 37, Id. at 37, Id. at 37, Id at 37,130-31; Goode, supra note 19, at 7-8. With these regulations came the current definition of isolated and above-the-headwaters waters. See infra note 119 and accompanying text Fed. Reg. 37, (1977) Id Id.

15 ECOLOGY LAW QUAR TERL Y [V/ol. 18:619 E. Congressional Approval in the Clean Water Act Amendments of 1977 In the 1977 CWA Amendments Congress endorsed prior developments in the section 404 program.' 0 2 First, it affirmed the broad scope given section 404 by the Callaway court. Section 404 still applied to the discharge of dredge or fill material into "navigable waters,"' 0 3 and these waters still were defined as "waters of the United States. ' 1 4 Congress thus clearly rejected the notion of limiting the jurisdictional scope of section 404, which had been under frequent consideration during the previous Congress Congress also ratified the Corps' general and regulatory permits. In new section 404(e), Congress authorized the Secretary of the Army to "issue general permits on a State, regional, or nationwide basis. ' 1 6 This essentially consolidated the Corps' nationwide permits with its general permit procedures, applying the general permit standards to all permits other than those issued in individual proceedings. Thus, the new authority to issue general permits was conditioned on a determination that the permitted activities are of a similar nature, will "cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect[s] on the environment."' 1 7 Congress also required these general permits to comply with EPA's section 404(b)(1) guidelines.1 08 F. Regulatory Relief and Continued Citizen Group Involvement Three years after enactment of the 1977 CWA Amendments, the Corps issued proposed regulations. Their major effects were shortening permit processing time and expanding the use of NWP's. 109 Nationwide permits previously promulgated in separate parts for the Rivers and Harbors Act and section 404 were consolidated into new part The four nationwide permits for isolated and above-the-headwaters waters were consolidated into two, and, significantly, the ten-acre size limitation was removed."'i Thus, under these proposed regulations, any 102. Federal Water Pollution Control Act Amendments of 1977 [hereinafter 1977 CWA Amendments], Pub. L. No , 91 Stat (codified as amended at 33 U.S.C (1988)) Id. 67(a)(1), 33 U.S.C. 1344(a) (1988) Id. 502(0 (codified as amended at 33 U.S.C. 1362(f) (1988)) See Power, supra note 18, at CWA Amendments, supra note 102, 404(e)(1), 33 U.S.C. 1344(e)(1) (1988) Id Id Fed. Reg. 62,732 (1980) Id. at 62, Id. at 62,735.

16 1991] ARMY CORPS OF ENGINEERS AND NWP 26 discharges into waters above the headwaters or isolated waters, regardless of size, would be authorized under a nationwide permit. Shortly thereafter President Reagan's Task Force on Regulatory Reform, chaired by Vice President George Bush, targeted the Corps' section 404 program and thereby initiated a series of events that produced NWP 26 in its current form.' 12 In May 1982, the Task Force recommended changes to expedite the permit process and expand the use of regulatory permits. 13 The Corps quickly responded by issuing interim final regulations implementing the 1980 proposal to authorize discharges into all waters above the headwater point and all isolated waters." 4 These revised regulations, according to a study by the U.S. Fish and Wildlife Service (the FWS), would have eliminated the individual permit requirement for "700,000 to 900,000 acres of prairie potholes, one to two million lakes and wetlands in the upper Midwest, 335,000 acres of wetlands adjacent to the Great Salt Lake, and 70% of the lakes in Alaska."' ' 5 In part because of these changes, the National Wildlife Federation (the NWF), along with fifteen other environmental groups, sued to enjoin implementation of the new regulations." 6 In 1984, the NWF and the Corps reached a settlement which produced NWP 26 in its present form." 7 The principal effects of the compromise embodied in the settlement were to reinstate the ten-acre size limitation on isolated waters and institute reporting requirements for some fills. G. The Structure of NWP 26 As a result of the settlement with the NWF, the Corps promulgated the current version of NWP 26 in November NWP 26 authorizes "[d]ischarges of dredged or fill material" (fills) into waters above the headwaters and isolated waters (NWP 26 waters)," 1 9 so long as the work does not fill or substantially adversely affect more than ten acres of such waters. 120 Fills that will affect between one and ten acres of NWP 26 waters must be preceded by a predischarge notification (PDN) to the 112. Blumm & Zaleha, supra note 18, at Id; see also 48 Fed. Reg. 21,466 (1983) (stating that the "Task Force directed the Army to reduce uncertainty and delay... [and] expand the use of general permits...") Fed. Reg. 31,798, 31,832 (1982). For an alternative interpretation of the reasoning behind the 1982 interim final regulations, see Goode, supra note 19, at Blumm & Zaleha, supra note 18, at 710 n National Wildlife Fed. v. Marsh, No (D.D.C. filed Dec. 22, 1982) See id.; Blumm & Zaleha, supra note 18, at The new regulations were promulgated at 49 Fed. Reg. 39,478 (1984) Fed. Reg. 41, (1986) "Headwaters" are defined as that point on a nontidal stream above which the average annual flow is less than five cubic feet per second. 33 C.F.R (b) (1990). "Isolated waters" are nontidal waters that are not part of a surface tributary system to interstate waters or navigable waters of the United States. Id (a)(26)(ii) Id 330.5(a)(26).

17 ECOLOGY LAW QUARTERLY [Vol. 18:619 Corps District Engineer. '21 Figure 1 details the NWP 26 process in schematic form. The PDN must include certain general information, including the location and approximate size of the area to be filled. 122 In such a case the prospective filler may not proceed unless notified that the activity is authorized by NWP However, if the filler receives no reply from the District Engineer within twenty days after the Corps receives the notification, he may proceed with the work. 124 Upon receipt of the PDN, the District Engineer must "promptly review" it to determine which procedures to follow. 125 If the fill will occur in an area designated as wetland of special interest by EPA, the FWS, or the National Marine Fisheries Service, the District Engineer must "promptly" notify that agency of the proposed activity. 126 These agencies may then review the proposed fill and express their views as to whether or not the Corps should require an individual permit. 127 However, this process must take place within the twenty-day review period. The Division Engineer reviews the proposed fill and any comments received from other agencies and determines whether to allow the activity to go forward under NWP 26 or to require an individual permit. 2 In reaching his decision, the Division Engineer must review pertinent factors, including EPA's section 404(b)(1) guidelines, and must give "full consideration" to any comments received from any agencies notified of the proposal. 29 The Division Engineer must require an individual permit if the fill does not comply with any of the conditions for the nationwide permits. 130 The regulations specify fourteen conditions which must be met for any NWP to apply. '3' Several of these conditions, which generally are designed to ensure compliance with other laws such as the Endangered Species Act, were originally promulgated along with the first regulatory permit Most importantly for NWP 26, the fill must not "disrupt the 121. Id Id (b) Id (a)(1), (2) Id (a)(3) Id (c) Id (c)(1)(i). If the District Engineer determines that the wetland to be affected would be of interest to one of these agencies, even though the wetland has not been designated, he must also provide this notification. Id (c)(1)(ii) Id (d) Id (d) Id Id Id (b)(l)-(14) For a list of these conditions, see supra note 82.

18 1991] ARMY CORPS OF ENGINEERS AND NWP 26 project proponent applies to Corps to fill wetlands or, Corps learns of project where wetlands are being filled (NB- the Corps does not actively search for cases, but reacts to information supplied by others) Yes - -Is the fill eligible for NWP 26? Corps exercises discretionary authority? Yes No Ir No EPA and FWS comment on project if notified by the Corps (which occurs for projects filling more than 1 acre) Corps issues Lblic Notice Corps receives comments on project from EPA, FWS, environmental groups, and any interested members of the public Final Corps decision possible public hearing (NB- Corps does not inform environmental groups of fill so they can not comment unless they somehow have I 404(b)(1) guidelines hurdle must be overcome for Corps to issue permit otherwise learned of fill) 4. Corps decision I EPA can veto a permit Corps has decided to issue over EPA objections FIGURE 1: PERMIT DECISION PROCESS

19 ECOLOGY LAW QUARTERLY [Vol. 18:619 movement of those species of aquatic life indigenous to the water body." 133 In addition, certain "management practices" must be followed "to the maximum extent practicable." These management practices (applicable to all NWP's) are intended to minimize the adverse effects of fills on the aquatic environment. Failure to comply may be cause for the Division Engineer to regulate the activity individually.) a5 With regard to NWP 26, one significant requirement is that "[d]ischarges of dredged or fill material... shall be avoided or minimized through the use of other 36 practical alternatives."' However, the most important management 37 practice is that "[d]ischarge in wetlands areas shall be avoided."' There are several ways in which nationwide permits can be modified on a regional basis. First, Division Engineers may "modify [NWP's] by adding regional conditions" and may "override [NWP's] by requiring individual permit applications.... for a category of activities, or in specific geographic areas."' 138 In addition, states may influence the application of NWP's. Section 401 of the CWA provides for state water quality certification of certain activities, including those covered by NWP A state may deny water quality certification for an NWP, by either prohibiting that activity entirely or requiring individual permits for all fills.' 4 In addition, a state may issue a conditional water quality certification; these conditions become conditions of any applicable NWP in that state. 141 II ADMINISTRATION AND ENFORCEMENT OF NWP 26, WITH SPECIAL EMPHASIS ON NORTHERN CALIFORNIA NWP 26 has engendered acrimonious, protracted debate among regulatory agencies, developers, and citizen environmental groups. Most of these arguments revolve around the ecological impacts of activities permitted by NWP Critics of NWP 26 argue that it is illegal because C.F.R (b)(4) (1990) Id (a) Id Id (a)(1) Id (a)(5) Id CWA Amendments, supra note 2, 401, 33 U.S.C (1988) C.F.R (a) (1990) Id Another argument is based on the Section 404(e) language allowing NWP's for categories of similar activities CWA Amendments, supra note 2, 404(e)(1), 33 U.S.C. 1344(e)(1) (1988). All NWP's other than NWP 26 authorize activities, such as the placement of "fish and wildlife harvesting devices... such as... eel pots, lobster traps, [and] duck blinds," 33 C.F.R (a)(4) (1990); for "survey activities," id (a)(6); or for "minor work... for the removal of wrecked... vessels," id (a)(22). NWP 26, on the other

20 1991] ARMY CORPS OF ENGINEERS AND NWP 26 the work that it authorizes has more than the minimal individual and cumulative adverse impacts allowed under section 404(e).1 43 According to this argument: because NWP 26 authorizes up to ten wetland acres to be destroyed without an individual permit review, because activities cannot be thoroughly reviewed in twenty days, and because the Corps usually does not enforce NWP conditions, NWP 26 authorizes... wetland fills that have much more than minimal adverse effects, both individually and cumulatively. 1 " Unfortunately, as this part indicates, it is difficult to determine the truth of this claim. Attempts to assess the impacts of NWP 26 generally lack hard data on the extent of activities authorized by NWP 26. After discussing this shortage of information, we review other evaluations of NWP 26. Based on our own research, we review NWP 26 activities in northern California, and revisit the Foothill Park case. We also examine procedural problems with the administration and enforcement of NWP 26. A. Lack of Information Ultimately, the legality of NWP 26 rests on whether it causes individually or cumulatively significant adverse ecological impacts. However, the answer to this question is clouded by a lack of data needed to assess these impacts. Indeed, the lack of data was the biggest problem we encountered in our attempts to understand and assess the Corps' NWP 26 program in northern California. This "black hole" of NWP 26 information has also plagued all other evaluations of NWP 26, as discussed below. This lack of information is caused primarily by the design of the program. No reporting at all is required for fills of less than one acre into NWP 26 waters. Fills in the one-to-ten-acre size category do have a reporting requirement in the form of the PDN. However, it is unclear what percentage of these fills are actually reported to the Corps. The limited federal staff and resulting difficulty of detecting fills lacking a PDN, the self-reporting nature of the PDN requirement, and the lack of a reporting requirement for fills of less than an acre suggest that there may be a significant amount of work occurring in headwater and isolated wetlands unbeknownst to the Corps. As Ted Durst, a high-ranking official in the Corps' South Pacific Division, admitted, "We don't really hand, applies to categories of wetlands. Because section 404(e) authorizes NWP's only for categories of "activities," opponents of NWP 26 assert that an NWP authorizing fills into a category of wetlands is illegal. See Goldman-Carter, supra note 19, at 5. However, there have been no legal challenges to the regulation based on this argument Goldman-Carter, supra note 19, at Id.

21 ECOLOGY LAW QUARTERLY [Vol. 18:619 know what the impacts of the NWP's are." 145 This contrasts with section 404's individual permit program, where fill acreage is tracked routinely, albeit not by wetland categories or within watersheds.'4 While the detection problem plagues the entire 404 program, it likely is particularly acute for NWP 26 fills which are smaller and in less observable locations. Fills larger than ten acres or those in tidal wetlands or tributary systems are more likely to be observed by the Corps, federal or state resource agencies, or complaining citizens simply because these fills are bigger. R Other Evaluations of NWP 26 No study has examined systematically the impacts of the use of NWP 26 in California, although an ambitious FWS investigation is underway. 147 Indeed, only a handful of such studies have been attempted anywhere in the country. As noted by one group of commentators, "there seems to be little information available on the magnitude of wetland alterations permitted under NWP 26." 148 Perhaps the most noteworthy study quantifying effects of NWP 26 was conducted by Wilson Laney.' 49 He looked at its use in North Carolina, and, in greater detail, in several relatively small regions of the state's coastal plain.' 50 He noted that the isolated and headwater wetlands of the North Carolina coastal plain provide important wildlife habitat as well as a wide range of other values.' 5 ' In each of his smaller study areas, Laney found that isolated or headwaters wetlands accounted for a substantial fraction of the total wetlands present.' 5 2 In one region, wetlands subject to NWP 26-authorized fills constituted ninety-nine percent of the total wetlands, and in no region did they consist of less than twenty-three percent of the total. 53 In addition to showing that NWP 26 has the potential to significantly impact North Carolina's wetlands, Laney tried to assess the actual 145. Interview with Ted Durst, Office of Counsel, South Pacific Division, U.S. Army Corps of Engineers, San Francisco, Cal. (Sept. 17, 1990) [hereinafter Durst Interview] Id Interview with Mary Lynn Friley, Sacramento Field Office, U.S. Fish & Wildlife Service (Oct. 17, 1990) [hereinafter Friley Interview] D. Gladwin, M. Jennings, J. Roelle & D. Asherin, Section 404 and Wetland Alterations in the Platte River Basin of Colorado 3 (U.S. Fish & Wildlife Service, Biol. Rep. 90(xx), July 1990) [hereinafter Platte River Alterations] Laney, The Elimination of Isolated and Limited-Flow Wetlands in North Carolina, in PROCEEDINGS OF THE SYMPOSIUM ON COASTAL WATER RESOURCES 243 (W. Lyke & T. Hoban eds. 1988) Id. at Id. at Id. at 247, Id. at 249.

22 1991] ARMY CORPS OF ENGINEERS AND NWP 26 effects of NWP 26 in the region. 5 4 By studying PDN's, he found that in the study year approximately 163 acres of this valuable habitat were proposed to be filled. 155 But NWP 26's very structure prevents Laney from determining whether these 163 acres were a substantial portion of all NWP 26 fills within his study areas or just the tip of the iceberg. Still, he concluded that "[c]ontinued application of [NWP] will result in wetland losses which are neither individually [n]or cumulatively of minor adverse impact as mandated by the Clean Water Act."' ' 5 6 A Fish and Wildlife Service study examined Corps records of both NWP 26 and individual permit activity in the Platte River watershed to the east of the Continental Divide in Colorado, as well as some data from EPA and the Colorado Division of Wildlife While the study is ambitious, it too suffers from the limits imposed by the paucity of Corps data. While the Tri-Lakes Office of the Corps did have records on some fills that were less than one acre authorized under NWP 26,158 the authors of the study acknowledge that "[t]he number of additional projects [less than] one acre not reported to the Corps is unknown."' 5 9 They found that from 1985 to 1989, sixty-seven percent of all projects permitted under section 404 by the Corps' Tri-Lakes Office were authorized by NWP They concluded that "the alterations reviewed in this study are collectively significant in the context of the semiarid environment in which they occurred and the overall importance of the wetlands affected."' 6 ' EPA has provided additional information. The director of EPA's Office of Wetlands Protection, in response to Congressional questioning in 1989, stated that the Corps authorizes an estimated 50,000 actions each year under all twenty-six of the NWP's. 62 This estimate appears to rely heavily on speculation, however, as all such estimates must. While Jan Goldman-Carter of the National Wildlife Federation reckons that a significant portion of these actions are authorized under NWP 26,163 the information from which this could be determined does not exist. Thus, little is known about the real ecological effects of NWP 26. While opponents of NWP 26 are therefore unable to make their case with 154. Id. at Id. at Id. at Platte River Alterations, supra note Id. at Id. at Id Id. at Wetlands Conservation: Hearing Before the Subcomm. on Fisheries and Wildlife Conservation and the Environment of the House Comm. on Merchant Marine and Fisheries, 101st Cong., 1st Sess. 263 (1989) (Response of David G. Davis, Director, Office of Wetlands Protection, EPA, to additional questions submitted by Rep. Jolene Unsoeld) Goldman-Carter, supra note 19, at 4.

23 ECOLOGY LAW QUARTERLY [Vol. 18:619 certainty, the Corps is likewise unable to disprove it, and there are reasons to suspect that the adverse impacts of activities authorized by NWP 26 are significant. C. Administration and Enforcement of NWP 26 in Northern California Data limitations inevitably frustrate efforts to conclusively prove or disprove that NWP 26 causes significant wetland impacts. Nevertheless, even limited data and anecdotal evidence can indicate whether policy changes are needed. Therefore, we studied the Corps' use of NWP 26 in northern California, searching for evidence of the effects of the permit. We interviewed local staff of the Corps, EPA, the FWS, the National Marine Fisheries Service (the NMFS), and the San Francisco Region of the California Regional Water Quality Control Board (the RWQCB), as well as wetlands consultants and representatives of local environmental groups. We also spoke with EPA and FWS staff in Washington, D.C. In addition to these interviews, we gathered data on the NWP 26 program from the files of the Sacramento District of the Corps and some files of the San Francisco District.1 64 These Districts are reputed to be two of the more environmentally progressive Districts in the country As Figure 2 shows, they comprise all of northern California and the state's Central Valley. While the Sacramento District also includes Nevada, Utah, and western Colorado, we focused on NWP 26 use in California. 166 EPA, NMFS, FWS, and RWQCB staff we interviewed believed that the NWP 26 program contributes to the very environmental damage that section 404 was designed to prevent.' 67 Comments such as "it's been overutilized" 1 68 or "the cumulative impacts of [NWP 26 filling] are a real problem" 169 were typical. Ted Durst of the Corps' South Pacific Division, on the other hand, while admitting the Corps' ignorance as to NWP 164. Both of these Districts are part of the South Pacific Division, as shown in Figure Telephone interview with Greg Peck, Office of Wetland Protection, EPA Headquarters (Oct. 3, 1990) [hereinafter Peck Interview] The California portion of the Sacramento District is roughly equivalent to the Sacramento River Drainage Basin Telephone interview with Diane Windham, Santa Rosa Field Station, National Marine Fisheries Service (Oct. 3, 1990) [hereinafter Windham Interview]; telephone interview with Jim Bybee, Santa Rosa Field Station, National Marine Fisheries Service (Oct. 3, 1990) [hereinafter Bybee Interview]; telephone interview with Kay Goude, Sacramento Field Office, Fish And Wildlife Service (Sept. 13, 1990) [hereinafter Goude Interview]; telephone interview with Mike Long, Sacramento Field Office, Fish And Wildlife Service (Sept. 13, 1990); Friley Interview, supra note 147; interview with Tom Yocom, Region IX, EPA, in San Francisco (Sept. 26, 1990) [hereinafter Yocom Interview]; interview with Mike Carlin, San Francisco Region, California Regional Water Quality Control Board, in Oakland, Cal. (Sept. 26, 1990) [hereinafter Carlin Interview] Bybee Interview, supra note Friley Interview, supra note 147.

24 1991] ARMY CORPS OF ENGINEERS AND NWP 26 0I S *SN ITI CT FO REUAOR CIVTE PACIFIC OCEAN V SDIVISION AND DISTRICT HEADQUARTERS D IVSION HEADOUARTERS A DISTRICT HEADOUARTERS. STATE BOUNDARIES DISTRICT BOUNDARIES FIGURE 2: CORPS OF ENGINEERS OFFICES

25 ECOLOGY LAW QUARTERLY [Vol. 18: effects, believes that fills authorized by NWP 26 do not have much of an impact. 170 He thinks that other activities over which the Corps has no control cause the loss of at least ten times the acreage lost by the use of NWP The problem, of course, as Durst candidly acknowledged, is that due to the lack of data on fills authorized by NWP 26, there is no definitive way to assess its full impacts. 172 Other resource agency concerns, however, focused on problems with the administration of NWP 26. Based on these concerns, we conclude that there are five basic problems with the administration of NWP 26 in northern California. Some of the problems are generic to the national program; others are particular to its administration in northern California. The remainder of this section outlines these problems, then revisits the Foothill Park project introduced earlier. 1. Problems with the PDN Process The predischarge notification (PDN) is the notice to the Corps required of those planning to fill between one and ten acres under NWP In northern California, agencies have requested that the Corps notify them of all NWP 26 fills, so the Corps is required to send them all of the PDN's it receives. 174 However, the PDN process is seriously flawed, for the agencies often lack the time and information needed for an adequate review. Because the PDN comment period is only twenty days, 1 75 and the resource agencies are notified by the Corps, not the applicant, the agencies may have as few as five business days in which to comment before the fill is authorized automatically. 176 Thus, a visit to the proposed fill site or even a thorough review of the proposal often is not possible.177 Moreover, the information in the PDN's often is insufficient to allow an assessment of the potential impacts of the proposed fill. 178 This prompted one FWS staff member to comment that the PDN regulations and the twenty-day review period were a "terrible constraint."' Durst Interview, supra note Id. Section 404 controls only the "discharge of dredged or fill material." 1972 CWA Amendments, supra note 2, 404(a), 33 U.S.C. 1344(a) (1988). Draining or inundating of wetlands, if no discharge occurs, is not regulated by the Corps. Thus, many wetlands are destroyed outside the jurisdiction of the Corps Durst Interview, supra note See supra note 122 and accompanying text Durst Interview, supra note 145. This request imposes the same obligations on the Corps as a designation. 33 C.F.R (1990) C.F.R (1990) Friley Interview, supra note Id Id Id.

26 1991] ARMY CORPS OF ENGINEERS AND NWP 26 These problems with the PDN process lead to uncertainty on the review of PDN fills. The resource agencies and the Corps respond to this uncertainty in ways illustrating their contrasting attitudes toward wetlands protection. In their comments, the resource agencies demonstrate their commitment to wetlands protection by almost always requesting that the Corps exercise its discretionary authority to require an individual permit. Ted Durst estimated that the resource agencies make such a request ninety-seven percent of the time. 80 Given the short review time, the agencies often cannot support these requests with detailed, site-specific information.' 8 ' Instead, they commonly resort to form letters. 182 The Corps' response to uncertainty is quite different. In northern California, the Corps, which recognizes boilerplate language, typically ignores the resource agencies' comments because they do not express specific knowledge of the proposed fill and its impacts.' 8 3 Durst estimated that the Corps requires an individual permit for fewer than two percent of all NWP 26 projects Thus, virtually all one-to-ten-acre isolated and headwaters fills are authorized under NWP 26 rather than through the individual permit program, and this authorization is made with very little, if any, information about the proposed projects and their potential impacts. 2. Failure to Account for the Value of California Wetland& California may be especially hard-hit by NWP 26. A large percentage of the state's wetlands are nontidal, for the rocky coastline and historic losses of San Francisco Bay wetlands limit the extent of tidal wetlands. 185 Of the remaining nontidal wetlands, a substantial percentage meet the isolated or headwaters criteria of NWP Because much of the state is arid, many of the wetlands and drainages are flooded only seasonally and many of the riparian corridors have fewer than five cubic feet per second annual flow and are therefore considered above the headwaters.' 8 7 California's riparian, or streamside, corridors 8 8 outside the San Joaquin Valley are typically narrow because of the arid climate 180. Durst Interview, supra note Id Carlin Interview, supra note 167; Friley Interview, supra note Durst Interview, supra note Id. Durst indicated that these 2% are the cases in which one or more of the commenting agencies raises site-specific concerns that clearly evidence a knowledge of that site. Id Windham Interview, supra note 167; Bybee Interview, supra note Windham Interview, supra note Durst Interview, supra note Many streams and rivers, except those through steep terrain, have a band of wetlands or water-tolerant vegetation adjacent to the channel along both banks. W. MiTscH & J. Gos- SELINK, supra note 3, at These riparian corridors vary considerably in width, based on frequency of flooding, soil characteristics, and the location of the water table. Id.

27 ECOLOGY LAW QUARTERLY [Vol. 18:619 or rolling topography Thus, substantial lengths of dwindling riparian habitat may be consumed in small-acreage fills. Some California wetland ecosystems are unusually vulnerable. Vernal pools are a type of wetland found only in California, southern Oregon, and South Africa. 9 They host unique plant assemblages, and are of critical importance to reptiles and amphibians. 1 9 ' These seasonally wet areas are almost invariably isolated or above the headwaters, so they can be filled through NWP 26. The resource agencies believe that NWP 26 is especially ill-suited to protection of this California ecosystem.' 92 Vernal pool complexes typically consist of depressed, seasonal pools 9 3 intermingled with raised, nonwetland "mima mounds."' The pools typically are small, often only a few hundred square feet.' 94 Thus, the acreage allowances of the existing NWP 26 are especially devastating to vernal pool ecosystems. Since section 404 only regulates the pools, even eliminating NWP 26 might not significantly improve ecosystem protection. Still, a one-acre fill authorized by NWP 26 in a vernal pool complex typically eradicates many pools and destroys much more than an acre of the pool-and-mound ecosystem. Resource agency staff expressed concern with the manner in which the NWP 26 program fails to account for the special value of California wetlands. The agencies share a general belief that California's isolated and headwaters wetlands have especially high ecological value, 195 because wetlands less than one acre are a larger fraction of the total wetlands resource in this arid state than elsewhere. Also, California's remaining wetlands are especially valuable because such a high percentage of the state's historic wetlands already have been lost. 196 On the other hand, the Corps apparently does not believe that isolated and headwaters wetlands in California are especially valuable; nowhere in the state has the Corps implemented more protective regional conditions on NWP The federal resource agencies have had little success translating their concerns about wetland loss in California into better protection. However, a few regional and local agencies have taken steps to cut wetland losses. For example, the San Francisco and Los Angeles RWQCB's 189. Yocom Interview, supra note Holland & Thomas, A Unique Habitat - California's Vernal Pools, FREMONTIA, Oct. 1976, at 3, See Madeiros, The Future of the Great Valley Pools, FREMONTIA, Oct. 1976, at 24, Friley Interview, supra note 147; Goude Interview, supra note Holland & Thomas, supra note 190, at Id. at Friley Interview, supra note 147; Windham Interview, supra note 167. Others have made this argument for other regions as well; see, e.g., Laney, supra note Yocom Interview, supra note 167; Friley Interview, supra note Durst Interview, supra note 145.

28 1991] ARMY CORPS OF ENGINEERS AND NWP 26 have taken advantage of a provision in the CWA allowing states to block permits due to water quality concerns' 9 " by "piggybacking" more expansive public review procedures onto the normal PDN process. 199 The State Water Resources Control Board (the WRCB) issued a conditional Water Quality Certification for NWP 26 in 1986, reserving authority to revoke the certification on a case-by-case, regional, or statewide basis. 2 Then, in 1988, the WRCB established regional conditions on the issuance of NWP 26 in the San Francisco and Los Angeles regions. 20 ' These conditions require the project proponent to notify the RWQCB, interested agencies, and interested members of the public of any proposed project that will affect one to ten acres of wetlands Notification must occur twenty days before the proponent notifies the Corps pursuant to the PDN procedures The RWQCB may prevent the twenty-day period from commencing until they deem they have received adequate information In establishing this prereview process, the state has, in effect, superimposed a twenty-day public review period onto the Corps' PDN review. The WRCB may withdraw or set conditions on their water quality certification during this period, giving the Board the power to veto NWP 26 projects in these two regions These additional requirements frustrate the expedited review process. Nonetheless, the situation is akin to other instances of environmental regulation, in which states and localities enact tougher local requirements than the federal standards. While the RWQCB's are understaffed, the effect of this program in the portions of California it covers seems to be a more thorough review of the one-toten-acre NWP 26 fills. Often the potential fill area is reduced through this process Absence of a Monitoring System The lack of information provided during the PDN phase is compounded by the lack of a system to monitor compliance with the notification requirements and with issued permits. The NWP 26 program relies heavily on voluntary compliance with its rules. It therefore requires a high level of monitoring to ensure that parties are indeed complying with CWA Amendments, supra note 2, 401(a)(1) (codified as amended at 33 U.S.C. 1341(a)(1) (1988)) Carlin Interview, supra note State Water Resources Control Board, Water Quality Certification for Proposed Nationwide Permits for Dischargers of Dredged and Fill Materials to Waters of the U.S. (40 C.F.R. 330) Under Section 401 of the Clean Water Act (Oct. 31, 1986) (amended decision) State Water Resources Control Board, Resolution (Sept. 22, 1988) Id Id Id 205. Id Carlin Interview, supra note 167.

29 ECOLOGY LAW QUARTERLY [Vol. 18:619 the program requirements. However, Ted Durst acknowledged that "monitoring of anything has been a problem of ours for years. We don't have the manpower for it." ' 2 7 Because of the nearly complete lack of site visits or any other form of monitoring for NWP 26 wetland fills less than an acre in size and minimal monitoring of fills between one and ten acres, the Corps rarely discovers violations of NWP 26's conditions. When the Corps learns of filling not in compliance with the permit conditions (for example, if a permittee fills greater wetland acreage than stated in the PDN, or simply fills more than one acre without filing a PDN) the information source is typically one of the resource agencies, complaining neighbors, or local environmental organizations. This lack of monitoring undermines the NWP 26 program. As developers learn that violations are not noticed, they lose incentive to abide by potentially costly restrictions. 4. Application of the Management Practices The Corps has promulgated management practices to govern nationwide permits that on their face, are very environmentally protective Like EPA's section 404(b)(1) guidelines, 2 9 they contain strong presumptions against filling wetlands The management practices state that "discharges of dredged or fill material into waters of the United States [which include wetlands]... shall be avoided or minimized through the use of other practicable alternatives." ' 2 1 ' Even more 212 strongly, they state that fill "in wetland areas shall be avoided. The Corps' interpretation of the management practices, however, renders them toothless. The sentiments expressed by a manager in the Sacramento District seemed typical of the agency: "My interpretation is 21 3 that they're like recommendations. They're not binding regulations. Because the Corps does not enforce its own management practices, and because EPA cannot or will not enforce its guidelines, both the Corps' staff and developers tend to ignore them. Potential NWP 26 permittees may feel little need to comply with regulations they know the Corps probably will not enforce Durst Interview, supra note C.F.R (1990) Fed. Reg. 85, (1980) (codified at 40 C.F.R. 230 (1988)) See Blumm & Zaleha, supra note 18, at C.F.R (a) (1990) Id (a)(5) Interview with Tom Coe, Chief, Regulatory Unit 1, Sacramento District, Corps of Engineers (Oct. 17, 1990) in Sacramento, Cal. [hereinafter Coe Interview].

30 1991] ARMY CORPS OF ENGINEERS AND NWP Enforcement Style As discussed above, the lack of information 214 and limited monitoring 215 suggest that only a small percentage of NWP 26 violations are discovered by the Corps. The Corps could deter some of these violations by ensuring that those who are caught are swiftly and strictly punished. In northern California, however, the Corps does not enforce these regulations effectively, forcefully, or frequently. The Corps appears to have adopted an enforcement style for NWP 26 that might charitably be described as "conciliatory," rather than the tough, "legalistic" approach believed typical of federal regulators. 216 The strongest Corps response to NWP 26 violations in northern California appears to be "reprimands." When asked about the Corps' response to violations, Tom Coe of the Sacramento District referred to several instances where the Sacramento District had chastised NWP 26 permittees who filled more wetlands than declared in their PDN's and who failed to provide any erosion controls. 217 However, he admitted that it had been at least three years since such a situation had occurred. 218 Moreover, these few reprimands seem to have been the result of specific complaints by concerned citizens to the Corps. 219 One striking feature of the Corps' enforcement of NWP 26 is its use of after-the-fact permitting. Essentially, this tactic legalizes violations as they are discovered by notifying the filler that the completed work is authorized under NWP 26. This tactic is applied to both fills of less than one acre and those in the one-to-ten-acre category. Where the total fill is less than one acre, and the wetland in question meets the NWP 26 criteria, the Corps maintains that the filler has a "de facto" NWP 26 permit and thus there is no violation. 220 Figure 3 is a copy of the Corps' response to one such wetland fill. EPA and the FWS, however, argue that these are violations if the filler has made no attempt to avoid or minimize wetland fill, or prevent siltation into adjacent wetlands, and thus has not complied with the management practices. 221 For fills of one to ten acres where the filler neglected to notify the Corps, both the Corps and resource agencies agree that such fills violate the CWA. 222 However, they differ in how they believe these violations 214. See supra text accompanying note See supra text accompanying note E. BARDACH & R. KAGAN, GOING BY THE BOOK: THE PROBLEM OF REGULATORY UNREASONABLENESS (1982) Coe Interview, supra note Id Id Durst Interview, supra note Yocom Interview, supra note 167; Friley Interview, supra note 147. Durst Interview, supra note 145; Coe Interview, supra note 213; Goude Interview, supra note 167; Friley Interview, supra note 147.

31 648 ECOLOGY LAW QUARTERLY [Vol. 18:619 N- z6 fiz. 0/1-7/40 MAI'2( 5,Cft 0. rz. Regulatory Section ( ) January 1o, Sundial Way Sacramento, California Dear Mr. and Mrs. Wiley: This letter concerns the fill you have placed in the North Fork of Badger Creek to realign the creek for a building site. The site is in Section 31, Township 7 North, Range 7 East at Assessor's Parcel No near Wilton in Sacramento County. The Chief of Engineers has issued a nationwide permit that allows for the placement of dredged or fill material that impacts less than one acre of waters or wetlands of the United States. Your fill can be constructed under this authority provided the work meets the conditions listed on the enclosed information sheet. This verification is valid until November 13, You should this office if work will extend beyond this date. You should also contact the California Department of Fish and Game to determine whether a stream bed alteration agreement is required for your stream realignment. If you have any questions, please write to Lou Cadwell, Room 6536, or telephone (916) Enclosure Copies Furnished: w/o Enclosure Sincerely, Tom Coe Chief, Regulatory Unit 1 California State Water Quality Agency, 3443 Routier Drive, Sacramento, California U.S. Environmental Protection Agency, Region IX, 215. Fremont Street, San Francisco, California Department of the Interior, U.S. Fish and Wildlife Service, 2800 Cottage Way, Room E-1803, Sacramento California Jerry Mensch, Environmental Services, Region II, Department of Fish and Game, 1701 Nimbus Road Rancho Cordova, California FIGURE 3: AFTER-THE-FACT PERMITTING

32 1991] ARMY CORPS OF ENGINEERS AND NWP 26 should be handled. The agencies pressure the Corps to either prosecute the filler or require fill removal and wetland restoration. 223 The typical Corps response, instead, is to issue an after-the-fact permit bringing these larger fills into compliance. 224 Thus, even when there is an undisputed violation, the Corps avoids enforcing NWP 26 cases. After-the-fact permitting is anomalous in environmental enforcement. Some Corps staff we interviewed justified the practice by claiming that staff shortages prevent criminal, civil, or administrative enforcement. 225 Tom Coe of the Sacramento District argued that his limited regulatory staff is better employed in the routine permit processing. 226 However, "after the fact" permitting seems particularly shortsighted. In addition to allowing the unchecked destruction of disappearing resources, it penalizes those who comply with the NWP 26 regulations. Those who comply invest time and money preparing PDN's and consulting with the regulatory agencies. They may spend money on mitigation schemes mandated by agencies or be required to reduce the scope of their plans. Their competitors who ignore the regulations can avoid these costs with impunity, safe in the knowledge that even if they are caught, they will not be penalized. Thus, after-the-fact permitting creates severe disincentives for regulatory compliance. In sum, the Corps' failure to gather information about fills and to monitor for compliance with its own regulations prevents an accurate assessment of the extent of NWP 26 violations in northern California. The resource agencies fear that noncompliance is widespread. Given the Corps' failure to detect and penalize those who violate NWP 26 and the incentives this failure creates for noncompliance, the agencies' fear may well be justified. D. An Illustrative Case: The Foothill Park Development The Foothill Park case introduced at the beginning of this Comment highlights many of the problems discussed above. 227 Five years after John Drake, the developer, began grading roads for a housing complex in Chico, California, Patrick Kelly, a local leader of an environmental organization, wrote to the Corps alerting it to a probable section 404 violation. 228 Several members of the Corps' Sacramento District inspected the site, and on February 26, 1990, three weeks after the initial letter, 223. Friley Interview, supra note Yocom Interview, supra note Durst Interview, supra note Coe Interview, supra note See supra notes 1-13 and accompanying text Letter from Patrick Kelly, supra note 6.

33 ECOLOGY LAW QUARTERLY [Vol. 18:619 issued a cease and desist order to John Drake. 229 The order required that work be halted while the Corps investigated the project. 230 However, the order most likely did not worry Drake, for it hinted at the Corps' lax enforcement style. The letter suggested that once the investigation was complete, the project could proceed. 231 It concluded, "Once the extent of waters of the United States [affected by your project] is known, we will be able to advise you concerning appropriate Department of the Army authorization. The letter did not suggest that '232 Drake would face penalties for his initial noncompliance, and the quote above indicated a greater concern that the loss of wetlands be documented rather than minimized. Drake responded to the Corps in a letter dated March 6, He wrote, "Needless to say, we had no idea we were violating any of our federal laws concerning wetlands...,,233 If this statement is accurate, it suggests that widespread noncompliance may exist not only because of the Corps' failure to enforce NWP 26, but also because it fails to publicize the regulations adequately. Huffman Associates, a consulting firm hired by Drake to delineate both undisturbed and filled wetlands on Drake's property, calculated that Drake had filled 0.98 acres of wetlands. 234 On June 15, 1990, the Corps wrote to Drake, advising him that it had "determined [that] the best way to resolve your violation is to accept and process an after-the-fact application for a... permit The Corps apparently relied on Huffman Associates' acreage estimates. It does not appear that the Corps independently calculated the fill acreage, consulted the resource agencies, or notified the public. 236 John Drake formally submitted his PDN to the Corps in a letter dated July 16, He requested permission to continue both the 229. Letter from Art Champ, Chief, Regulatory Section, Sacramento District, U.S. Army Corps of Engineers, to Dan Drake (John D. Drake) (Feb. 26, 1990) Id Id Id Letter from John D. Drake to Art Champ, Chief, Regulatory Section, Sacramento District, U.S. Army Corps of Engineers (March 6, 1990) Letter from James Gibson, Vice President, Huffman & Associates, Inc., to Art Champ, Chief, Regulatory Section, Sacramento District, U.S. Army Corps of Engineers (May 25, 1990). An additional 1.2 acres of fill was contemplated by Drake at the time that the cease and desist letter was sent. Letter from Wayne S. White, Field Supervisor, Fish and Wildlife Service, U.S. Dep't of the Interior, to District Engineer, Sacramento District, U.S. Army Corps of Engineers (July 30, 1990) Letter from Robert W. Junell, Chief, Regulatory Unit 2, U.S. Army Corps of Engineers, to Dan Drake (June 15, 1990) The Corps' case file contains no indication of such actions Letter from John D. Drake to Art Champ, Chief, Regulatory Section, Sacramento District, U.S. Army Corps of Engineers (July 16, 1990).

34 1991] ARMY CORPS OF ENGINEERS AND NWP 26 subdivision and the related commercial development. 238 Drake also pointed out that other nearby property owners recently had filled vernal pools. 239 The Sacramento office received the letter on July 20, so the twentyday clock would expire on August 9, The opportunity for additional state-level review by the RWQCB discussed above 24 was unavailable in this case since Chico lies outside the only two state water quality districts, San Francisco and Los Angeles, where this procedure applies. If the Corps failed to act by August 9, Drake automatically would be authorized to go forward with the development. The Corps would lose its opportunity to impose on Drake requirements such as identifying and implementing mitigation for lost wetlands. 24 ' Thus, the agencies were not notified of Foothill Park's plans to fill until late July, over six months since the Corps first learned of the project. While the Corps had six months to form an opinion, the resource agencies had fewer than ten working days to form positions on the development. Given the limited time, neither EPA nor the FWS felt that they could send representatives to visit the site before their deadline for comments to the Corps. 242 The PDN itself was no substitute for a site visit, for it contained no information on the ecological values of the wetlands to be filled. As noted earlier, the PDN was not required to contain anything more than limited information on the approximate location and acreage of the wetlands to be filled While the FWS and EPA did not have time to conduct site investigations, they both filed comments with the Corps. However, their inability to gain site-specific information forced them to provide fairly general comments. Because of this limitation, their objections appeared to carry little weight with the Corps. 244 The FWS strongly opposed the Corps' authorization of the project through NWP 26, and requested that the Corps require both an individual permit and an environmental impact statement. The FWS indicated that the work would have significant individual and cumulative impacts and argued that a mitigation plan should be a condition of the permit The FWS also noted that the wetlands in question were part of a vernal 238. Id Id See supra notes and accompanying text The Corps' case file indicates notification was sent to the FWS and EPA on July 23, Friley Interview, supra note 147; Conversation Record of phone conversation between Barbara Benge of the U.S. Army Corps of Engineers, and Nancy Dubbs of EPA (July 30, 1990). Chico is roughly 175 miles from the San Francisco EPA office and close to 90 miles from the Sacramento FWS office See supra text accompanying note See supra text accompanying note Letter from Wayne S. White, supra note 234.

35 ECOLOGY LAW QUARTERLY [Vol. 18:619 pool complex. 246 As discussed above, 247 these systems are both unusually valuable as habitat and unusually vulnerable to developments authorized under NWP 26. Creation of new wetlands as replacement apparently was not considered a viable option. As the FWS pointed out, "Vernal pool creation is far from being an exact science, and its results 248 are difficult, if not impossible, to guarantee. Finally, the FWS feared that the fill would eliminate habitat for and specimens of butte county meadowfoam (Limnanthes floccosa ssp. californica), a plant under consideration for listing as an endangered species. 249 Perhaps the most significant result of the lack of site visits was that neither the FWS nor EPA could prove that meadowfoam was present. 250 Had the presence of this plant been proven to the Corps, the Corps' decision and the final fate of these wetlands might have been different. EPA also felt that the project required an individual permit. 251 However, its concerns seemed less strongly felt than those of the FWS. Most of their recommendations focused on the type, amount, and other details of the mitigation, rather than on strong objections to the fill. 252 Several environmental organizations also provided comments to the Corps before it authorized the development. The Mount Lassen Chapter of The California Native Plant Society, the Butte Environmental Council, and the local chapter of the Sierra Club, the Yahi Group, all wrote letters arguing that the wetlands should be preserved and protected from the developer's proposal, that individual fills such as this have a significant cumulative impact, and that the planned mitigation was inadequate and its success uncertain. 253 The letter from the Sierra Club is reproduced in Figure 4 as an example of the concerns expressed. III EXPLANATIONS OF THE DESIGN AND IMPLEMENTATION OF NWP 26 In this Part, we attempt to explain the design and administration of NWP 26. We do so by first developing three models of regulatory style Id See supra text accompanying notes Letter from Wayne S. White, supra note See id All FWS could claim was that "[i]t is likely that this plant species occurs within the Foothill Park development area... " Ia (emphasis added) Conversation Record, supra note Id See, e.g., letter from Mary Anne Pella, Conservation Committee, Yahi Group, Sierra Club, to Robert Junell, Chief, Regulatory Unit 2, Sacramento District, U.S. Army Corps of Engineers (Sept. 1, 1990); letter from Michelle Fuller, General Manager, Butte Environmental Council, to Barbara Benge, Sacramento District, U.S. Army Corps of Engineers (Aug. 28, 1990).

36 1991] ARMY CORPS OF ENGINEERS AND NWP 26 SIERRA CLUB YAHI GROUP CONSERVATION COMMITTEE ~IA~4& (a:~~) Robert Junell, 'hief Regulatory Unit 2 Sacramento District Corps of Engineers 650 Capital Mall Sacramento, CA Sept. 1, 1990 Dear Mr. Junell, A careful examination of the Nationwide 404 permit for Drake Homes in Chico has been made, which is conditional on a Mitigation Plan by nuffman and Associates. We have recently obtained a copy of that Mitigation Plan and also examined it carefully. Its contents were suprising. This plan, upon which you based your approval to fill in non-tidal waters is not an actual plan at all, merely an overview of the project, a rough schedule for development of a detailed plan and a very general description of how monitoring might occur and how success mirht be achieved. How is it possible that wetlands destruction may be approved without any concrete procedure established to recreate these highly evolved ecosystems? There has been several research attempts to establish vernal pool systems and the research indicates most of those have been unsuccessful with only one or two showing a viable population after 2 years. With cycles of dry conditions sometimes lasting 3-4 years in a vernal pool any successful test pool would need to have undergone 1-2 of those extended dry cycles. None have done -Q as of yet. Drake Homes 'is not required to have a detailed working plan until 6 months prior to implementation of the plan, after all the vernal pools and swales have been destroyed. Do you have a procedure in the event that the plan to create these complex ecosystems proves to be inadequate. What recourse will you or wehave. The current plan does address what may be altered if success criteria is not achieved: they will continue to monitor the pools and apply the "appropriate corrective measures" (which are what?); proceed with additional wetland creation projects to offset the unsuccessful ones and keep disturbance by amiftals and people to a minumum. The inconsistencies and lack of good scientific methodology in this general plan are very disturbing, especially in light of the rarity and specialization of this wetland system. It is equally disturbing that this overview is all that was required to grant a permit to fill in these waters. If this is the extent future mitigation plans are required to be, then most vernal pools in Northern Chico which may be in the path of development can be anticipated to be destroyed without muon recourse. We are disappointed at the lack of real concern you have shown for the protection of those waters you are given the authority and responsibility to protbct. I look forward to hearing from you further about this disturbing matter. Sincerely, FIGURE 4: SIERRA CLUB LETTER Mary Anne Pella Conservation tommittee /. '/Z/ tl /..

37 ECOLOGY LAW QUARTERLY [Vol. 18:619 We then apply these models to the Corps, assessing how well each accounts for the evolution, design, and administration of NWP 26 as discussed in parts I and II. We do not treat the models as mutually exclusive. Rather, they are alternative explanations having greater or lesser explanatory power in regard to the NWP 26 program. The discussion that follows is relevant to wetlands protection policy in two ways. First, we suggest numerous ways that wetlands protection under NWP 26 could be improved and examine why the Corps has not taken these measures. Second, the conclusions reached regarding the nature of the Corps as a regulatory agency could be used in shaping and reshaping its legislative mandates. A. Models of Regulatory Style Most studies of regulatory enforcement style emphasize one of two sets of factors for explaining why enforcement styles vary. 254 These sets of factors suggest certain underlying models of the nature of agencies. We pose three alternative models of regulatory agencies, drawing to varying extent for each on the political science literature on enforcement style. One of these models, here dubbed "Essayons," explains enforcement style by reference to the legal rules the agency is implementing and the features of its "task environment. ' 255 "Essayons," which is the Corps' motto, means "we will try." '256 This model assumes the regulatory agency is motivated primarily to serve the public interest with whatever duties and resources it is given by Congress. The agency strives to allocate its limited resources in the most efficient manner possible, in order to meet the congressional mandate as completely as it can. The other common model we call "The Accommodators. ' ' 257 This approach focuses on aspects of the agency's political environment, such as interest group pressures. 258 In this model, agency style is explained by the intensity and direction of pressures from interest groups and elected officials, and the role of the news media. 259 The agency is assumed to be driven by a desire to preserve its authorities, autonomy, and budget. To 254. Kagan, Understanding Regulatory Enforcement, 11 LAW & POL'Y 89, 94 (1989) Id. (quoting Scholz &Wei, Regulatory Enforcement in a Federalist System, 80 AM. POL. Sci. REV. 1249, (1986)). Examples of features of an agency's task environment include the nature of the regulated activities and the detectability of violations. Id Moser, supra note 34, at See S. TAYLOR, MAKING BUREAUCRACIES THINK: THE ENVIRONMENTAL IMPACT STATEMENT STRATEGY OF ADMINISTRATIVE REFORM (1984) (discussing the rewards that flow to Corps personnel who are best able to facilitate compromise by finding ways to accommodate competing interests) Kagan, supra note 254, at Id.

38 1991] ARMY CORPS OF ENGINEERS AND NWP 26 serve these ends it avoids conflict by finding the most politically acceptable compromise in any contentious situation. In addition to these, there is a third model, here called "Dig They Must." ' 260 This model emphasizes the agency's history, culture, and ideology. It assumes that the agency is driven by the beliefs and traditions that accumulate within it over time. This accretion of attitudes and practices ultimately amounts to an organizational ideology which determines the agency's style. The agency is receptive to political pressures and congressional initiatives consistent with its ideology, but can be quite resistant to political pressures, and even direct mandates, that are inconsistent with it.261 B. Application to NWP 26 This section applies the three models of regulatory style developed above to the Corps' NWP 26 program. We focus first on the initial appearance of general and regulatory permits in the Corps' 1975 interim final section 404 regulations. We then consider the evolution of NWP 26 specifically, and finally we discuss its administration. We conclude that all three models are equally plausible explanations of the initial appearance of general and regulatory permits. However, "Dig They Must" best explains the design, evolution, and administration of NWP 26. "The Accommodators" plays a lesser, though still significant role. "Essayons," however, fades into irrelevance. 1. The Appearance of General and Regulatory Permits The appearance of general and regulatory permits for implementing section 404 after NRDC v. Callaway could be explained by "Essayons." Under this model, after Callaway the Corps was faced with a problem endemic to all agencies: how to meet demanding legislative goals with scarce administrative resources. Regulating fills in the coastal zones, rivers, lakes, and ponds that are traditionally recognized as "navigable waters" is by itself an enormous task. Additional jurisdiction over all waters within the modem scope of the Commerce Clause creates a regulatory task of truly epic proportions. There are over 52 million acres of existing wetlands adjacent to headwater systems and extensive isolated wetlands in the United States, including ecosystems as diverse as Alaskan tundra, Carolina bays, and prairie potholes in the Great Plains, among 260. The name of this model is taken from the title of Moser, supra note Examples of successfully resistant agency behavior are discussed in Wood, Principals, Bureaucrats, and Responsiveness in Clean Air Enforcements 82 AM. POL. Sci. REV. 213 (1988) (analyzing EPA's ability to resist Presidential initiatives relaxing enforcement of the Clean Air Act); Dwyer, The Pathology of Symbolic Legislation, 17 ECOLOGY L.Q. 233, (1990) (discussing EPA's resistance to carrying out congressional instructions in the Clean Air Act).

39 ECOLOGY LAW QUARTERLY [Vol. 18:619 many others. 262 The Callaway decision gave the Corps jurisdiction over all these wetlands, yet Congress did not give the Corps any new resources to carry out this mandate. 263 Indeed, even today the entire Regulatory Branch has a staff of only 2500 and a current annual budget of approximately $70 million. 264 Any agency faced with this situation would take steps to economize on its administrative resources while fulfilling, to the maximum extent possible, the mandate of the Clean Water Act. 265 Current and former Corps personnel have described the NWP approach as being designed to comply with Callaway in an administratively feasible manner, by generically authorizing activities that have minimal impacts on water quality. 266 At least two scholars endorse this approach, arguing that the general permit provisions are "vital to the establishment of a workable program [because they]... minimize the administrative burden on the Corps and the burden on the citizenry by regulating with relative ease activities that have little impact on water quality. ' 267 This view supports "Essayons." By freeing administrative resources from monitoring activities considered environmentally insignificant, the Corps is better able to address the more important concerns of section 404. Indeed, Congress itself endorsed the Corps' judgment by enacting section 404(e) in the 1977 CWA amendments. 268 The promulgation of general and regulatory permits also can be explained by "The Accommodators," though somewhat less convincingly than by "Essayons." To begin with, the Corps' projects are authorized by specific congressional appropriations, and its resulting "ability to dispense huge barrels of pork" 269 has led one analyst to conclude that the Corps is more an agency of Congress than of the Army. 270 This position makes the Corps especially susceptible to political influences. Following release of the 1975 proposed regulations, there was intense and antagonistic political interest in the Corps' program. EPA's adoption of a broad interpretation of the coverage of the CWA 27 1 created 262. Laney, supra note 19, at Goode, supra note 19, at Durst Interview, supra note Indeed, Lee Caplin, then an Attorney-Advisor in the Office of the General Counsel of EPA, noted that general permit procedures were one of five ways the Corps' 1975 interim final regulations made the section 404 program manageable. Caplin, supra note 56, at 453. The others included clarifying definitions of the waters to which section 404 would apply, phasing in the program over a three-year period, grandfathering of fills already underway, and increasing the role of states. Id. at Huffman Interview, supra note 92; see also Goode, supra note 19, at 7. Both Huffman and Goode are former Corps staff Ablard & O'Neill, supra note 18, at See supra notes and accompanying text Moser, supra note 34, at S. TAYLOR, supra note 257, at See supra notes and accompanying text.

40 1991] ARMY CORPS OF ENGINEERS AND NWP 26 pressure on the Corps to adopt a similarly broad section 404 program. The Callaway suit by NRDC and other environmental organizations added to this pressure. 272 However, the opposition to expansive Corps regulation of fills, touched off in part by its own proposed regulations, 273 certainly created countervailing pressures. In addition, this outcry activated attempts in Congress to limit the Corps' jurisdiction in a variety of ways, including declaring the CWA inapplicable to waters beyond those traditionally regulated by the Corps. 274 The fact that many members of Congress wanted to limit the scope of section 404 served to legitimize and intensify the political pressures on the Corps to limit its program. In light of these conflicting pressures, regulatory permits represent a political compromise crafted by the Corps to accommodate the interests of the opposing factions. Asserting broad jurisdiction appeased the environmental groups (and complied with Callaway). On the other hand, the Corps did so in a phased program 275 which grandfathered fills that were already underway, 276 included a regulatory permit for certain fills, 277 and authorized District Engineers to promulgate general permits under certain circumstances. 27 These provisions softened the blow of section 404 for builders and farmers, the Corps' traditional allies. 279 Finally, "Dig They Must" also can explain the promulgation of general and nationwide permits. The Corps has a reputation as an environmental despoiler in its civil works activities, and a benevolent coordinator of development, construction, and other "improvements" in the waterways of the United States in its regulatory activities. 2 0 The Corps' actions relating to the 1972 CWA amendments bear out its reputation. During consideration of the legislation in Congress, the Corps actively sought the enactment of section 404, and sought the permitting authority of that section, in order to protect its activities and those of its primary constituents from the stringent new pollution control provisions. 28 ' In the legislative history to the amendments, Congress made clear its intent that the Act be interpreted expansively, so as to 272. Blumm & Zaleha, supra note 18, at See supra notes and accompanying text. A Department of Agriculture press release probably exacerbated the negative reaction. See Caplin, supra note 56, at 454 (quoting Assistant Agriculture Secretary Long, who compared the Corps' regulations to the "legendary Hydra - you cut off one head and two grow back in its place," in U.S. Dep't of Agric., News Release, Aug. 18, 1975) See Power, supra note 18, at During this time, over 30 bills were introduced in Congress to address this issue. Ablard & O'Neill, supra note 18, at 80 n Fed. Reg. 31,321, 31, (1975) (formerly codified at 33 C.F.R (e)(2)(i)) Id. at 31,321-22, 31,326 (formerly codified at 33 C.F.R (e)(2)(iii)) See supra notes and accompanying text See supra notes and accompanying text Power, supra note 18, at Moser, supra note 34, at See Blumm & Zaleha, supra note 18, at 703.

41 ECOLOGY LAW QUARTERLY [Vol. 18:619 control water pollution at the source. 282 Yet despite EPA's far broader interpretation of the same statute, the Corps initially maintained its traditional jurisdictional limit. 283 It took the Callaway suit to finally compel the Corps to implement the statute to its full extent. 284 In the regulations promulgated in response to Callaway the Corps only grudgingly assumed its responsibilities. It adopted a regulatory permit preauthorizing certain discharges in all waters of the United States, and rules that authorized District Engineers to issue similar permits for their particular regions. 285 In addition, it limited its jurisdiction to streams below the headwaters and to lakes larger than five acres. 286 Moreover, the political support the Corps had for limiting its scope in this way was at least partly a result of its use of the press. 2 7 By thus minimizing the impact of the CWA on the regulated public, the Corps was able to maintain the favorable disposition to development activities that had earned it the reputation as the friend of builders and farmers. 2. The Evolution of NWP 26 Regulatory permits evolved into a major component of the section 404 program, eventually spawning twenty-six nationwide permits. 288 NWP 26 and its predecessors have been the most controversial of the nationwide permits. 289 The evolution of NWP 26 is explained by some models better than others. Specifically, "Dig They Must" and "The Accommodators" continue to account for the Corps' behavior, whereas "Essayons" no longer explains it. The seeds of NWP 26 first sprouted in the 1977 section 404 regulations. 29 Bernard Goode, Chief of the Corps' Regulatory Functions Branch at the time, argues that these NWP's expanded wetlands protection. 29 ' According to him, the adoption of NWP's protected isolated lakes smaller than five acres and waters above the headwaters by extending section 404 to them. 292 This argument is dubious. Prior to the 1977 revisions, the Corps had attempted to limit the section 404 regulations to streams below the headwaters and isolated waters greater than five acres in surface area. However, there was no express statutory authorization for this demarcation, rendering it vulnerable to legal chal See supra note 68 and accompanying text See supra text accompanying notes See supra text accompanying notes See supra notes and accompanying text See supra note 78 and accompanying text See supra notes and accompanying text C.F.R (a) (1990) For one perspective on this controversy, see Goode, supra note 19, at Fed. Reg. 37, (1977) (formerly codified at 33 C.F.R ) Goode, supra note 19, at Id.

42 1991] ARMY CORPS OF ENGINEERS AND NWP 26 lenge. Thus, expanding the NWP program to streams above the headwaters and isolated waters of ten or fewer acres did not operate to expand the protective scope of the program., Rather, it protected the Corps' historical interest in reclamation of wetlands. 293 Nationally permitting all fills in streams above the headwaters merely gave blanket regulatory approval to these activities. NWP coverage of isolated waters also diminished protection. Whereas individual permits were required for fills in lakes larger than five acres prior to 1977, under the 1977 regulations all fills in all isolated waters were nationally preauthorized. 294 Thus, while the 1977 regulations did indeed assert section 404 coverage over these waters, they did so in such a way as to foster development activities conducted in them. This action is best explained by the "Dig They Must" model. Other evidence corroborates this conclusion. First, during the initial growth of regulation under section 404, one Corps General stated that "we have changed our direction, but we haven't changed our philosophy. ' 295 This led one commentator at that time to conclude that the Corps stood then where it always had, "with those whose priority is growth and development. ' 296 Second, evidence of the Corps' culture, such as its informational publications and organizational structure, reflect a culture oriented toward putting wetlands to "higher" uses such as boat slips and parking lots. 297 Finally, the Corps' rather enthusiastic embrace of President Reagan's regulatory relief agenda is additional evidence of the continued importance of its "Dig They Must" tradition. In addition to expanding the NWP program, during the early Reagan years the Corps entered into new memoranda of agreement with the resource agencies that "sharply curbed opportunities for administrative appeals" and "reduced mitigation measures in permit conditions. ' 298 The 1982 interim final rules dropped any mention of EPA's section 404(b)(1) guidelines and reversed the presumption against filling wetlands. 299 In addition, the Corps worked to have EPA's 404(b)(1) guidelines declared merely advisory, as opposed to binding. 3 It took the settlement reached in the lawsuit brought by the National Wildlife Federation and others 30 1 to prevent these initiatives from taking effect See supra notes and accompanying text Fed. Reg. 37, (1977) Moser, supra note 34, at Id See infra notes and accompanying text Blumm & Zaleha, supra note 18, at Id Id Id.; See also supra note 117 and accompanying text.

43 ECOLOGY LAW QUARTERLY [Vol. 18:619 Alongside "Dig They Must," "The Accommodators" is also relevant: the evolution of NWP 26 was facilitated by the prevailing political climate in which it developed. 'Beginning at least as early as the Nixon Administration, Congress and the President have shown concern about overregulation, particularly in the area of environmental protection This has encouraged agencies such as the Corps to look for ways to limit their regulatory programs. Indeed, the early 1980's, during which NWP 26 evolved, will probably be regarded as the zenith of deregulation sentiment in the White House. While conservation organizations continue to play a role in pressing for stronger wetlands protection, 30 3 public opposition to particular permits has been perceived to be motivated more typically by a desire to slow or stop development than to protect wetlands In any event, widespread public support for wetlands preservation (such as one finds for toxic waste cleanups, for example) that might prompt the Corps to adopt a tougher regulatory program does not yet exist. 3. The Design and Administration of NWP 26 As shown in part II, NWP 26 suffers from serious flaws in design and administration. As discussed below, the Corps could remedy many of these problems at fairly low administrative cost. That it has declined to do so strongly suggests that "Essayons" is not the Corps' model, and that "Dig They Must" is. Since the prevailing political climate has not unequivocally supported aggressive protection of wetlands, "The Accommodators" plays an explanatory role here as well. We next enumerate many of the problems with the administration of NWP 26, and how the Corps could alleviate them. First, the program does not account adequately for the value of California wetlands. California is an arid region in which wetlands are rare, and those that exist are often isolated or above the headwaters As the most common type of an important but rare and dwindling resource, these wetlands are especially deserving of protection. Therefore, one might expect the Division or District Engineers to use their authority to attach special conditions to, or categorically disallow, NWP 26 in order to protect these resources. 3a 6 Yet the Corps has not done so. All special conditions in California have been the result of state or local initiatives, with no apparent assistance or encouragement from the Corps See R. LITAN & W. NORDHOUS, REFORMING FEDERAL REGULATION 1-7, (1983) Caplin, supra note 56, at Durst Interview, supra note See supra note 187 and accompanying text This authority has always been a feature of regulatory permits. It is currently codified with respect to nationwide permits at 33 C.F.R (1990). See supra notes for a description of the Division and District Engineers' responsibilities See supra notes and accompanying text.

44 1991] ARMY CORPS OF ENGINEERS AND NWP 26 Second, the program fails to utilize the PDN process to gather data on the use of NWP 26. The PDN process provides a ready vehicle for collecting information on one-to-ten-acre fills. The information contained in PDN's easily could be entered into a database and aggregated in order to improve assessments of the impacts of NWP 26. Yet, Corps staff indicated there had been no Corps effort to do so Third, staff of commenting agencies frequently complain that the PDN process is poorly designed. In their opinion, the information in PDN's is insufficient for assessing the impact of a proposed fill. 3 9 In addition, they believe the comment period is too short to allow a full analysis of the information that is in the PDN, much less to make a site visit The Corps easily could improve this situation. For example, it could require the filler to provide more detailed information in the PDN and to send the PDN directly to all relevant agencies simultaneously. The Corps also could refuse to start the twenty-day clock until the information in the PDN is sufficient to allow an assessment of the environmental effects of the proposed fill. Yet the Corps has taken neither of these actions nor any others to improve the commenting agencies' ability to examine proposed fills. Ironically, it concludes from the fact that the resource agencies often resort to form letter comments that these agencies' objections may be dismissed. 311 Fourth, the Corps' monitoring of compliance with its conditions, management practices, and mitigation requirements is clearly insufficient. Of course, compliance monitoring is a difficult problem because it requires significant staff time for site visits and contacts with developers. Given this obvious difficulty, an agency committed to the mandate of the CWA probably would devise a different program. For example, the Corps could require developers to file work plans certified by approved consultants as in compliance with all requirements of NWP 26 and could require an additional certification that the work was being performed in accordance with the plan Fifth, given the importance of strong enforcement of NWP 26, the Corps' enforcement style undermines its effectiveness. Enforcement 308. Durst Interview, supra note 145; Coe Interview, supra note See supra note 178 and accompanying text See supra notes , 179 and accompanying text See supra notes and accompanying text An example of such a monitoring system is the certification of compliance with the energy provisions of the state building code in Oakland, California. Oakland Development Services Department inspectors have neither the time nor the expertise to inspect building plans for energy efficiency compliance. Therefore, until recently, the department required the builder to obtain the services of a certified consultant to design the building to code, and to have another certified consultant confirm that the plans comply. The city would accept plans and certifications only from approved consultants. Interview with Stan Spears, Supervisor, Oakland Development Services Department, in Oakland, California (May 14, 1990).

45 ECOLOGY LAW QUARTERLY [Vol. 18:619 against violations of NWP 26 should be stem and likely Stern punishment of violators who are caught is essential where there is reason to believe that only a small percentage of violations are discovered. 314 This appears to be the case with the NWP 26 program. Violations are not always easily detectable since the affected activities are widespread and many wetlands are not recognizable to the untrained eye. Moreover, given its lax monitoring system, the Corps cannot be expected to detect many violations. In addition, social pressures, which might help ensure compliance in some contexts, are absent here because public support for wetlands preservation, while increasing, is not yet widespread. The Corps enforcement style is extremely conciliatory, with liberal use of after-the-fact permits. 315 This approach to enforcement creates incentives for developers and others to fill wetlands without notifying the Corps and to ignore the permit conditions and management practices. Again, an agency committed to an effective program could remedy this failing with relatively small expenditures. For example, it could prosecute a few especially visible cases to set an example. This would serve both to raise general awareness of the permit program and to help deter those that are aware of the program but contemplating disregarding its requirements. Yet the Corps seems attached to its conciliatory style, emphasizing, as in the case of Foothill Park, that prosecution is reserved for willful and flagrant violations. 316 Finally, the Corps overlooks the important roles that state and local agencies could play in improving the effectiveness of the NWP 26 program by helping to make prospective fillers aware of the program and to monitor compliance. The Corps could share information and take other actions to raise awareness of the section 404 program among state and local agencies, and involve them to a greater degree in its administration of the program. Yet the Corps appears to have made little effort in this direction. Indeed, the literature that it does disseminate appears to be designed more to assuage concerns about federal requirements than to inform people of the importance of wetlands and encourage their compliance with permit requirements See J. DIMENTO, ENVIRONMENTAL LAW AND AMERICAN BUSINESS: DILEMMAS OF COMPLIANCE (1986) See id. at See supra notes and accompanying text It is important to remember that the Corps' responsibilities bring it into repeated contact with a stable community of builders and developers who become very familiar with the various legal and regulatory requirements affecting their work. In this situation, an excessively legalistic approach to enforcement could do more harm than good by alienating the regulated community and engendering their hostility. On the other hand, it is equally if not more important for the agency to be firm in enforcing laws and regulations so as to avoid being captured by the regulated interests See infra notes and accompanying text.

46 1991] ARMY CORPS OF ENGINEERS AND NWP 26 These flaws clearly cannot be explained by the "Essayons" model of regulatory style. Instead, it appears that the Corps' regulatory practices are a function of its "Dig They Must" tradition. The Corps' practices suggest to prospective fillers that they should fill without notifying the Corps and awaiting its authorization, betting that neither the Corps nor interested citizen groups will find them. If the work is discovered, the filler can expect that an after-the-fact permit will probably be issued and no punishment for the violation will take place. Today, despite a shrinking civil works budget and increasing emphasis on wetlands protection, the Corps' culture still appears to be oriented toward construction rather than protection. The Corps' attitude toward wetlands protection and its regulations is expressed in information pamphlets its distributes. Figure 5 shows excerpts from an informational pamphlet expressing the Corps' view of the value of wetlands: smiling bulldozer operators happily dredge and fill wetlands in order to create boat slips and other shoreline developments In a booklet prepared by Corps headquarters that the Sacramento District distributes to the regulated public the Corps explains its wetlands and water bodies regulatory program in a question-and-answer format. 319 This booklet clearly reveals how the Corps sees its regulatory role, and it seems to be a less than protective one. For example, the booklet states: Q. Why should I waste my time and yours by applying for a permit when you probably won't let me do the work anyway? A. Nationwide, only three percent of all requests for permits are denied... Q. I have obtained permits from local and state governments. Why do I have to get a permit from the Corps of Engineers? A. It is possible you may not have to obtain an individual permit... The Corps has many general permits which authorize minor activities Much less emphasis is given in the booklet on the value of wetlands, or on why they are protected, than on how to apply for a permit to fill them. Corps staff stated that this information is distributed in order to keep an already overwhelming workload from growing completely out of control. 321 The organizational structure of the regulatory program provides still further evidence of the continued prominence of "Dig They Must." First, the Regulatory Functions Branch is part of the Civil Works Direc U.S. Army Corps of Engineers, Regulatory Permit Program. Corps staff indicated this is the main piece of literature they disseminate in response to requests for information about the NWP 26 program. Coe Interview, supra note United States Army Corps of Engineers, Regulatory Program: Applicant Information (Doc. No. EP , May 1985) Id. at Coe Interview, supra note 213.

47 ECOLOGY LAW QUARTERLY [Vol. 18:619 Nationwide Permit A -0, 1-4d We d a of g..' hd-.a'peo o le m of, o ~fl-m.~gha* wa.ed TM", poqfl.t me Oy 0 th Wa'faWNWfq " a.. 4 ewa*. Sm-w b e9afiod aaw paa-a. i.go btaly aehee.ao.@ ed a -- Occahmg of dtw m IN mlead In km.,b.oms m. lebel I *baed e I. b ad.. 0. US Amy Carpi e6o1d bwime. TN. es no0 W w to se of me of Englneeon mdonwtleo dl WhM Ow. MNlI be abeum 8" ularl Sacramento District Imwa d a0 4 tof 0 scm a. mar of a - of U le Stat.. bincb w0t s Oedleeg..fadbc~ 6w Capitol Mit I 1* 1Oacr ql. n ghwno.aae.smef -ft- SacraznlntO. CA Obbb EnO~.o Aler-M t Ppok whme o eawge &*' We- ow Is $ cft i lea' pm aecond tsl), ). a.. Iloltnt abne,. ONagwalW ilme gowt b whe, fa Warn Now, a a abe. S Ol5 50 go aenl 0,G8. oe Ooed ba bw 01s WaaW tme n Wo e of a of a Uniml Sksw. Regulatory Permit Program FIGURE 5: PERMIT PROGRAM BROCHURE

48 1991] ARMY CORPS OF ENGINEERS AND NWP 26 torate, which is responsible for managing the Corps' far-flung construction and maintenance activities. 322 This renders regulatory policies subject to the priorities of Civil Works, which has been said to be "overwhelmed" by political influences. 323 Second, the Division and District Engineer positions are military posts which are generally held for three years at a time. 324 Personnel appointed to these positions come from Military Construction and return to that Directorate upon completion of their term as regulators. 325 It is therefore not surprising that a prodevelopment attitude would prevail in the Regulatory Branch despite the recent influx of proenvironment civilian staff with training in biology and ecology. 326 To be fair, the Corps appears to be moving in a more protective direction. First, in the section 404 cases for which the Corps requires an individual permit, it conducts a fairly elaborate, searching inquiry into the project. 327 This includes analysis of alternatives to fill and requirements for mitigation measures. 328 It is not uncommon for the review to result in a denial of the permit application or a withdrawal by the applicant. 329 In addition, it is becoming increasingly common for prospective NWP 26 fillers to solicit Corps advice on their projects before initiating the PDN process or undertaking the project. 330 These informal meetings often result in smaller fills and in mitigation projects. 33 ' Nonetheless, although this advice is probably helpful to wetlands protection, it is only informal and relies completely on the filler's own initiative in seeking the Corps' advice. In the case of NWP 26, the Corps appears to be following its traditional approach to regulation, reflecting the continued preeminence of its "Dig They Must" culture. Political conditions around the issue of wetlands protection seem to favor some kind of accommodation. For example, the issuance in 1989 of a manual for delineating wetlands, which the Corps claims to have merely represented its established practice, caused such a furor that the Corps has recently proposed a new manual which significantly limits the land that would fall within the definition of wetland and the jurisdiction of the Corps. 332 This new manual has pleased the farmers and builders, 322. Huffman Interview, supra note S. TAYLOR, supra note 257, at See Moser, supra note 34, at Id 326. Huffman Interview, supra note Coe Interview, supra note Id Id.; see, e.g., Wildermuth, Army Engineers Reject Plan for Dump in Canyon, San Francisco Chronicle, Sept. 11, 1990, at A Durst Interview, supra note Carlin Interview, supra note Bush Draws Environmentalists' Anger with Wetlands Proposal, L.A. Times, Aug. 11, 1991, at Al, col. 1 (on introduction of new policy as reflected in Corps' new delineation man-

49 ECOLOGY LAW QUARTERLY [Vol. 18:619 but infuriated environmentalists Furthermore, despite the campaign promises of President Bush to create a national "no net loss" policy for wetlands, such a policy does not seem to have materialized. 3 4 Finally, one can interpret the CWA itself as not so much a wetlands protection statute but a program for limiting the discharge of pollutants into water. As noted earlier, section 404 was added out of a concern that the Corps maintain its control over the coordination and facilitation of navigation. 335 The Corps still seems to be pursuing its original mission, to facilitate and carry out improvements in aid of navigation and commerce. The politics of wetlands protection have certainly not prevented it from pursuing this path. CONCLUSION: THE FUTURE OF WETLANDS PROTECTION IN THE UNITED STATES The foregoing analysis forcefully suggests that the Corps of Engineers operates primarily according to its "Dig They Must" tradition. Many of the problems with NWP 26 are better understood when viewed as the product of an agency committed to the manipulation of nature for the sake of human ends, charged with administering a statute that threatens that commitment. These were the circumstances surrounding the birth of NWP's in general and NWP 26 in particular. A major problem with NWP 26 is that it generates inadequate information to evaluate individual and cumulative adverse environmental impacts of the wetlands fills it permits. The program does not require any notification for fills less than an acre, has inadequate review procedures when notification is required, and presumes authorization (under NWP 26, the filler has authorization unless the Corps notifies otherwise within twenty days). These procedures provide little of the information flow that is needed to determine the program's impacts and its consequent legality. This aspect of the program may be designed to assure the survival of a device that makes wetlands available to dredging and filling, perhaps inconsistent with the statutory requirement of only minimal impacts. To improve the information generated by the permit would be to put it at risk. Improving the amount and quality of information about NWP 26 impacts would be an enormous step in the right direction, but much more would be needed to make it operate as a mechanism for protecting wetlands. From a wetlands protection standpoint, there are problems with NWP 26 that are clear even in the absence of detailed data on its impacts. These include the lack of any real opportunity for the resource ual, and reaction to it) Id Id See supra notes and accompanying text.

50 1991] ARMY CORPS OF ENGINEERS AND NWP 26 agencies to comment on proposed fills via the PDN process and the Corps' lax approach to overseeing activities subject to NWP 26 and enforcing its requirements. Both factors make it easier for developers and others to violate the conditions and management practices applicable to NWP 26 fills. They could be corrected or alleviated with relatively small investment of resources, but the Corps seems to prefer to simply point to its low staffing and budget levels and claim it can do no more. This approach is consistent with an agency whose traditional activity has been filling and draining wetlands, not protecting them. The Corps is in the process of revising its NWP program in compliance with the CWA requirement that it renew the permits at least every five years. 336 The revision of NWP's gives the Corps an opportunity to address the concerns and problems that have been raised regarding NWP 26. The Corps has issued a Notice of Proposed Rulemaking for the NWP program, 337 which proposes several changes. Some appear to strengthen its protectiveness, while others move in the opposite direction. One change, shifting the discretionary authority for requiring individual permits from the Division Engineers to the District Engineers, would mandate that the District Engineers require individual permits whenever they find that a project will cause more than minimal adverse impacts, unless the filler proposes adequate mitigation. 338 Additionally, the Corps proposed to convert the management practices to conditions, in order to "make their enforceability clearer. '3 39 On the other hand, the Corps also proposed to add thirteen new NWP's to the current twenty-six. 34 Furthermore, while requesting comment on the addition of mitigation requirements, the Corps proposed to retain the current approach, in which mitigation is not required. 341 Two changes are most relevant to NWP 26. First, the Corps proposed to replace the current PDN process with a thirty-day review period, eliminating the coordination with other agencies now required by the NWF settlement in favor of "internal review" by the District Engineer to determine whether the proposed project would have minimal adverse impacts. 342 In support of this change, the Corps cited "[c]omplaints from the public and the Corps field office [which] indicate CWA Amendments, supra note 2, 404(e)(2), 33 U.S.C. 1344(e)(2) (1988). Having been promulgated in November of 1986, NWP's are due to be renewed by November of Fed. Reg. 41,217 (1986) Fed. Reg. 14,598, 14, (1991) Id. at 14, This change, of course, merely brings the regulatory provisions into alignment with the statutory prohibition against authorizing by general permit any activities having more than minimal adverse impacts individually or cumulatively Id. at 14, This change is also of dubious strengthening effect, since as discussed earlier, the Corps' actual enforcement of conditions does not appear to be very effective Id. at 14,598, 14, Id. at 14, Id.

51 ECOLOGY LAW QUARTERLY (Vol. 18:619 that [the] PDN process has become so burdensome as to preclude the utility of the NWP in some parts of the country. ' 343 However, the change has exactly the opposite effect from that which we have argued is needed. Instead of increasing the resource agencies' ability to comment meaningfully on the desirability of allowing a project to go forward under NWP 26, this provision would effectively eliminate them from the process. Furthermore, it is questionable whether the Corps can execute this change without violating the terms of its settlement with the NWF. Second, the Corps solicited comments on options for changing the acreage limitations of NWP 26 itself. It proposed three different acreage ranges for requiring a PDN: one to ten acres; one to five acres; and onehalf to five acres, requesting comments on these and any other options. 3 " Presumably, under the latter two options the five-acre upper limit would be a limit on the availability of NWP 26, not just a limit on the need for a PDN. If so, these options would work an improvement in NWP 26, since all fills larger than five acres would require individual permitting. While some of the changes being considered by the Corps would improve the program, others clearly would weaken its protectiveness by further greasing the developers' slide. Furthermore, the changes do not address some of the most serious problems with the program, such as the lack of monitoring and enforcement. In sum, the new NWP 26, as proposed, cannot be expected to produce more wetlands protection and appears to result in less. The Bush Administration's stated policy of "no net loss" of wetlands has significant implications for NWP 26 and the entire NWP program. During the 1988 campaign, President Bush proclaimed his commitment to the environment and promised the establishment of a national policy of "no net loss" of wetlands While the exact meaning of "no net loss" is still debated and does not appear to mean quite what environmentalists hoped it meant, 3 46 this proclamation has engendered considerable interest and activity around strengthening wetland protection. Given NWP 26, is a "no net loss" policy achievable? The ways to achieve no net loss are either to disallow all wetlands filling, which is a political and economic impossibility, or to mitigate allowed fills by restoring dysfunctional wetlands or creating "new" wetlands where none existed before. While wetlands restoration is known to be feasible in 343. Id Id. at 14, Peterson, supra note 20, at Al Shabecoff, Over E.P.A. Protest, White House Alters Wetland Agreement, N.Y. Times, Feb. 8, 1990, at Al, col. 1. Moreover, the Bush Administration has recently issued a new draft manual for delineating wetlands, which some say "could lead to the loss of millions of acres of wetlands across the country." Draft of Wetlands 'Bible' Released Amid Controversy, L.A. Times, July 11, 1991, at A20, col. 1.

52 1991] ARMY CORPS OF ENGINEERS AND NWP 26 some circumstances, 347 the opportunities for restoration are limited, and less convenient than, for instance, creating new wetlands on offsite land. Such creation of wetlands, on the other hand, is currently a dubious proposition. In many cases the success of these created wetlands has not been monitored, and where monitored, results have been mixed Thus, as far as maintaining no net loss of ecological value, the long term consequences of mitigation as it is currently being practiced are uncertain at best. Of course, no mitigation of any kind is required under NWP 26. Based on the foregoing discussion, we believe that NWP 26 is inconsistent with and will prevent the fulfillment of President Bush's promise of no net loss of wetlands. By its design, NWP 26 allows losses that are not made up by mitigation, because mitigation is not required in all fills. In addition, the degree of monitoring the Corps performs is patently insufficient to assure compliance with mitigation when it is required. Thus, even if NWP 26 were revised to require mitigation in all cases, there is no guarantee whatsoever that wetlands fills actually will be mitigated. Unless mitigation is required in all cases, and oversight and enforcement are strong enough to assure that mitigation will take place, there will continue to be net losses of wetlands. These losses will be particularly distressing in California, where the wetlands subject to destruction under NWP 26 are an especially large portion of this dwindling resource. Unfortunately, the Corps must dig, and the political climate seems to allow an accommodation such as NWP 26 as it has been and apparently will continue to be structured and administered. Unless the political situation changes to such a degree that NWP 26 is politically unacceptable, or a different agency, more oriented toward resource protection, is given the job of protecting wetlands, it appears that irreplaceable wetlands will continue to be lost to the bulldozer Huffman Interview, supra note ENvTL. RES. LABORATORY, U.S. ENVTL. PROTECTION AGENCY, 1 WETLAND CRE- ATION AND RESTORATION: THE STATUS OF SCIENCE at xi-xv (1989).