Since at least 1824 the Army Corps of Engineers has had jurisdiction over the navigable waters of the United States and the dredging thereof--and the dumping of whatever is dredged. It is from that beginning that the corps now finds itself the chief administrator of the federal program to protect the nation's wetlands under Section 404 of the Clean Water Act of 1977.
But not a terribly good administrator, according to the General Accounting Office, Congress' investigatory and oversight arm. Even the Reagan Administration's Department of the Interior concurs in that view. In commenting on the GAO findings, Susan Recce, the acting assistant secretary for fish and wildlife and parks, said that "there has been increasing concern among federal and state legislative bodies in protecting wetland resources . . . . The corps' program appears to lag behind this current trend, thus not adequately protecting the nation's wetlands resources."
All this may not be entirely the fault of the corps or the Defense Department. Most of the Clean Water Act is administered by the Environmental Protection Agency. Section 404 is not a specific wetlands-protection provision, but deals with the discharge or dredging of materials in or from the waters of the United States. In short, dredging, draining and landfill. As the GAO notes, the law does not directly authorize a comprehensive wetlands-protection program. It should.
In an extensive study for Rep. James L. Oberstar (D-Minn.), investigators found that there was considerable disagreement between the corps and natural-resource agencies within the government as to whether the corps was using its authority to protect as much wetlands acreage as it could.
The General Accounting Office also found that neither the corps nor the environmental agencies have the data-gathering capacity to know just how much wetlands are being lost each year. Estimates range up to 450,000 acres. Wetlands once covered 5 million acres of California, but now have dwindled to less than one-tenth that area. The resource agencies and the corps often disagree over what constitutes a wetland. In Vicksburg, Miss., both the corps and the U.S. Fish and Wildlife Service came up with estimated wetlands losses in their region during fiscal 1986. The corps put the loss at 800 acres, the Fish and Wildlife Service at 55,000 acres.
Even worse, in considering landfill permit applications the corps does not take into account the cumulative effect of successive operations over time because it is not sure how to do that. Corps officials said it was easier to consider each project individually, the GAO said. Nor is the corps diligent in requiring alternative construction in a different site because it believes that it should consider the economic hardship on the developer as well as the environmental damage.
Environmental agencies do review the corps' permitting process, but their recommendations often are ignored--37% of the time, in one study. In one celebrated case, however, the Environmental Protection Agency overrode a corps decision and was upheld in federal court. This involved the proposed dredging of Sweeden's Swamp in Massachusetts for the construction of a shopping mall. As a mitigation measure, the corps would have allowed the developer to create a new "swamp" on adjacent property.
Almost everyone in Congress understands that Section 404 needs changing, but all are reluctant to open a Pandora's box. Development forces fear that the law will be strengthened, and environmental groups fear that it will be weakened. The overriding national interest, however, is in a strong, specific wetlands-protection act. The alarming and insidious loss of American wetlands must be halted.