Preferred Citation: Warner, Richard E., and Kathleen M. Hendrix, editors California Riparian Systems: Ecology, Conservation, and Productive Management. Berkeley:  University of California Press,  c1984 1984.

Is There a National Interest in Wetlands

NRDC v. Calloway

The CE Takes 404 up the Proverbial Creek

The first judicial construction of the scope of Section 404 was United States v. Holland .[43] The case involved an enforcement action brought by the EPA against a land-fill project in a mangrove wetland in Florida. The project was beyond the ordinary high-tide line. The court reviewed the legislative history of the act (including the definition of "navigable water") and concluded that the FWPCA defined away the traditional test of navigability. It noted that the legislative history "manifests a clear intent (of Congress) to break from the limitations of the Rivers and Harbors Act to get at the sources of pollution."[44] Comparing Sections 101(a) and 404, the court concluded:

What these sections do is reveal a sensitivity to the value of a coastal breeding ground. Composed of various interdependent ecological systems (i.e., marshes, mudflats, shallow open water, mud and sand bottom, beaches and dunes), the delicately balanced coastal environment is highly sensitive to human activities within its confines . . . The FWPCA embodies the realization that pollution of these areas may be ecologically "fatal."[45]

The Holland case is the seminal interpretation of Section 404. The case clearly establishes that:

1. wetlands are a part of the nation's aquatic ecosystem, and they are necessary to the quality and biological productivity of the nation's waters;

2. the discharge of fill materials which causes damage to wetlands is a source of pollution regulated by the act;

3. loss of wetlands has serious effects on interstate commerce, and Congress is not limited by traditional definitions of navigability in regulating these impacts; and

4. while the high-water line may be relevant for other purposes, "it has no rational connection to the aquatic ecosystems which the FWPCA is intended to protect.[46]

While the Holland case clearly established that Section 404 is not limited by the traditional definitions of navigability, it did not involve the CE regulations limiting their jurisdiction to traditional navigability. The CE did not change its interpretation following the decision.[47]

In late 1974, the Natural Resources Defense Council brought a declaratory judgment action seeking to compel the CE to rescind its regulation limiting Section 404 jurisdiction to traditionally navigable waters.[48] On March 27, 1975, the District Court granted the plaintiff's motion for partial summary judgment, ordering the CE to propose new regulations "clearly recognizing the full regulatory mandate of the Water

[40] Conference Report, S. Rep. No. 92-1236 (1972) reprinted in 1 Legislative History. This explanation is quoted in many cases.

[41] 1 Legislative History.

[42] Sec. 101(a). The report of the House Committee on Public Works, which accompanied the House version of the bill referred to the phrase "integrity of the nation's waters"; the word "integrity," as used, is intended to convey a concept that refers to a condition in which the natural structure and function of ecosystems is maintained (H. Rep. No. 92-911, 92d Congress, 2d Session (1972), reprinted in 1 Legislative History.

[43] 373 F. Supp. 665 (M.D.Fla. 1974).

[44] Ibid ., at 673.

[45] Ibid ., at 624–625.

[46] Ibid ., at 676.

[47] Leslie Salt Co . v. Froehlke , 403 F. Supp. 1292 (N.D.Calif. 1974). Modified, 578 F. 2d 742 (9th Cir. 1978), also held that Section 404 jurisdiction extends beyond traditionally navigable waters. Compare United States v. Ashland Oil and Transportation Co ., 364 F. Supp. 349 (W.D.Ky. 1973)—EPA definition of "navigable waters."

[48] The EPA had also criticized the limited CE definition and had urged the CE to expand its definition. See 3 Env. L. Rep. 1240 (1973) and letter of June 19, 1974, from John Quarles to Lt. Gen. W.C. Gribble, reprinted in 404 Hearings.


Act."[49] The court specifically noted the conference report conclusion that "navigable waters should be given the 'broadest constitutional interpretation'."[40]

In response to the court's order, the CE published four alternative regulatory scenarios on May 6, 1975.[50] Two of the proposed definitions extended regulatory jurisdiction to most waters touched by interstate commerce. The other two were slightly broader than the traditional definition.[51] At the same time, the CE issued an infamous press release.

The press release, which basically described the alternative scenarios, began as follows:

Federal authority to regulate the disposal of dredged or fill material in the waters of the United States will be greatly expanded under proposed regulations published in the Federal Register today and would include practically all lakes, streams, rivers, and wetlands in the United States.

Under some of the proposed regulations, Federal permits may be required 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.[52]

The infamous press release provoked a storm of protest. It united the opponents of expanded jurisdiction. No mere notice in the Federal Register could provoke as much controversy. The CE received over 14,000 pages of public comment.[53] The EPA protested the press release,[54] and from the floor of the Senate Senator Muskie demanded a retraction.[55] Further, the outraged comments of the agricultural and forest products interests impelled some Congressmen to act. Legislation attacking 404 jurisdiction has been introduced in almost every session of Congress since.[56]

NRDC v. Calloway elicited two responses from the CE which have had ongoing impacts on federal wetlands protection. First, the infamous press release helped to galvanize the act's opponents. Second, the CE drafted a well thoughtout, orderly and reasonable regulation in response to the court's order. The July 25, 1975, "Interim Final" regulations[57] established that Section 404 could be administered to protect wetlands without the unreasonable intrusions suggested in the press release.

The Interim Final regulations accommodated the broad jurisdiction mandated by NRDC v. Calloway by incremental expansion in three phases over a period of two years.[58] Phase I, which took effect immediately, asserted jurisdiction over traditionally navigable waters plus adjacent wetlands. Phase II added primary tributaries to traditionally navigable waters plus all lakes greater than 4 ha. (10 ac.). Phase III included all other waters. The regulations defined "navigable waters" to include coastal and freshwater wetlands. The definition of "navigable waters" was very similar to the definition developed by EPA in 1974 for Section 402 NPDES jurisdiction.[59] The regulations also included separate definitions for coastal and freshwater wetlands, defining both as areas periodically inundated by water and normally characterized by vegetation that requires saturated (or salty) conditions.[60]

The regulations defined "dredged material" and "fill material," which were not defined in the FWPCA. The definitions of both terms exempted materials resulting from normal farming, ranching and silviculture activities.[61] Materials used in emergency reconstruction were also exempted.

To avoid the mass of permit applications inherent in broad jurisdiction (since Section 301(a) forbids discharges without a permit), the regulations authorized CE District Engineers to issue "general permits." A general permit authorized general categories of work found to have insignificant environmental impacts.[62] The general permit remains a significant feature of the CE regulatory process. It allows the permit

[49] Natural Resources Defense Council v. Calloway , 392 F.Supp. 685, 686 (D.D.C. 1975), reprinted in 404 Hearings.

[50] 40 Fed. Reg. 19766–94 (1975).

[51] See "Wetlands Protection Under the Corps of Engineers' New Dredge and Fill Jurisdiction" 28 Hastings L.J. 223 (1976).

[52] Press release. May 6, 1975. Department of the Army, Office of the Chief of Engineers. Reprinted in 404 Hearings.

[53] Statement of Victor Vesey, Assistant Secretary of the Army for Civil Works, July 29, 1976, in 404 Hearings.

[54] Letter of May 16, 1975, from Russel Train to General Gribble. Reprinted in 404 Hearings.

[55] 121 Congressional Record 17347 (1975). Reprinted in part in 404 Hearings.

[56] See discussion of Breaux, Wright and Tower Amendments below.

[57] 40 Fed. Reg. 31, 322–43 (1975). For a detailed analysis of the 1975 and 1977 regulations see Myhrum (1979).

[58] 33 C.F.R. Sec. 209.120(e)(2).

[59] 40 C.F.R. Sec. 125.1(p) (1975). The CE definition included traditionally navigable waters, interstate waters, and intrastate waters affecting interstate commerce (e.g., used by travellers in interstae commerce). See 33 C.F.R. Sec. 209.120(d)(2)(i) (1975).

[60] Compare 33 C.F.R. Sec. 209.120(d)(2)(i)(b) with Sec. 209.120(d)(2)(i)(h) (1975).

[61] Compare 33 C.F.R. Sec. 209.120(d)(4) and (d)(6)(1975).

[62] 33 C.F.R. Sec. 209.120(i)(2)(ix)(a) (1975).


process to focus on controlling major projects and preventing damage to wetlands.[63]

During Phase I of the 1975 Interim Final regulations, the CE held hearings around the nation to encourage further public comment. The Interim Final regulations were to be made final in 1977 after Phase III of jurisdiction was implemented. Partly in response to public confusion over the 1975 regulations, and partially to stave off congressional attacks on Section 404, the CE in 1977 revised the regulations into their present form, making several significant changes.

The 1977 regulations dropped the complicated definition of "navigable waters" which had been taken from the EPA regulations.[57] Instead, the regulations referred to "waters of the United States," the FWPCA term.[64] This avoided confusion between waters subject to the CE 404 jurisdiction and their traditional Section 10 jurisdiction. The definition of waters of the United States dropped the illogical distinction between coastal and freshwater wetlands. The definition of wetlands also was modified in a manner that would better apply Section 404 to riparian systems. The 1975 regulations had defined a freshwater wetland as one "characterized by the prevalence of vegetation that requires saturated soil conditions" (emphasis added).[60] The 1972 regulations defined "wetland" as follows:

The term "wetlands" means those areas that are inundated or saturated by surface or groundwater at a frequency and duration to support, and that under normal conditions do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas . . .[65]

The 1977 regulations also provided an additional mechanism for excluding activities from individual permit review. The "nationwide permit" permitted certain activities in the regulations themselves. For example, discharges into certain identified waters under specified conditions are permitted for utility line crossing, bank stabilization, and minor road crossings.[66] If an activity described in the nationwide permit categories may have significant individual or cumulative effects on the aquatic environment, an individual permit can still be required.[67]

The scope of federal authority required by Section 404 and the Calloway case required an effective program to avoid an avalanche of individual permit applications and yet carry out the purposes of the FWPCA. The CE effectively met this challenge by placing regulatory emphasis on larger projects that adversely affect wetlands, while avoiding individual review of all activities that may individually or cumulatively affect water quality.[68] The regulations made it possible for the CE to provide effective protection to sensitive aquatic ecosystems within their manpower and budgetary constraints. More important, however, the reasonable approach taken by the regulations probably saved Section 404 from legislative attack in 1976 and 1977.

Is There a National Interest in Wetlands

Preferred Citation: Warner, Richard E., and Kathleen M. Hendrix, editors California Riparian Systems: Ecology, Conservation, and Productive Management. Berkeley:  University of California Press,  c1984 1984.