APPENDIXES (Appendixes 1-9 appear in part 1 of these hearings) APPENDIX 29.-CORRESPONDENCE AND RELATED MATERIALS RE FEDERAL PART A.-EPA WETLANDS PROTECTION POLICY [From the Environmental Protection Agency, Washington, D.C.] EPA ANNOUNCES POLICY TO PROTECT NATION'S WETLANDS The Environmental Protection Agency Administrator William D. Ruckelshaus today established EPA policy for the protection and preservation of the Nation's wetlands. Ruckelshaus said, "Wetlands represent an ecosystem of unique and major importance to the citizens of this Nation and, as a result, they require extraordinary protection." Wetlands include marshes, swamps, bogs and other low-lying areas which during some period of the year are covered in part by natural nonflood waters. These areas serve as habitats for important fur-bearing mammals, many species of fish and waterfowl, the Administrator explained. Further, he said, they moderate extremes in water flow, aid in natural purification of water, and maintain and recharge ground water. Ruckelshaus said wetlands are unique recreational areas, high in esthetic value, that contain delicate and irreplaceable specimens of fauna and flora and support fishing as well as wildfowl and other hunting. "Protection of wetland areas requires the proper placement and management of any construction activities and controls of nonpoint sources to prevent disturbing significantly the terrain and impairing the quality of the wetland area," he said. The addition of harmful waste waters or nutrients contained in such waters should be kept below a level that will alter the natural, physical, chemical, or biological integrity of the wetland area, Ruckelshaus said. The Administrator said it will be the policy of EPA: First. To minimize alterations in the quantity or quality of the natural flow of water that nourishes wetlands and to protect wetlands from adverse dredging or filling practices, solid waste management practices, siltation or the addition of pesticides, salts or toxic materials arising from nonpoint source wastes and through construction activities, and to prevent violation of applicable water quality standards. Second. Not to grant Federal funds for the construction of municipal waste water treatment facilities which may interfere with the existing wetland eco system except where no other alternative of lesser environmental damage is found to be feasible. Third. To consult with the Department of the Interior in determining the probable impact of the pollution abatement program on fish and wildlife in the wetlands; and Fourth. To recommend a public hearing in the event of projected significant adverse environmental impact on wetlands. Ruckelshaus said the new policy will be applied to the extent of EPA's authorities in conducting all program activities, research, development and demonstration programs, technical assistance, control of pollution from Federal institutions, and the administration of the construction and demonstration programs, technical assistance, control of pollution from Federal institutions, and the administration of the construction and demonstration grants, State program and planning grants. EPA's policy on wetlands will be published soon in the Federal Register. Copies of the policy statement are available from the Public Inquiries Branch of the Office of Public Affairs. (202-755-0707) ENVIRONMENTAL PROTECTION AGENCY, ADMINISTRATOR'S DECISION STATEMENT No. 4 Subject: EPA policy to protect the Nation's wetlands. PURPOSE The purpose of this statement is to establish EPA policy to preserve the wetland ecosystems and to protect them from destruction through waste water or nonpoint source discharges and their treatment or control or the development and construction of waste water treatment facilities or by other physical, chemical, or biological means. THE WETLAND RESOURCE (a) Wetlands represent an ecosystem of unique and major importance to the citizens of this Nation and, as a result, they require extraordinary protection. Comparable destructive forces would be expected to inflict more lasting damage to them than to other ecosystems. Through this policy statement, EPA establishes appropriate safeguards for the preservation and protection of the wetland resource. (b) The Nation's wetlands, including marshes, swamps, bogs, and other lowlying areas, which during some period of the year will be covered in part by natural nonflood waters, are a unique, valuable, irreplaceable water resource. They serve as a habitat for important fur-bearing mammals, many species of fish, and waterfowl. Such areas moderate extremes in water flow, aid in the natural purification of water, and maintain and recharge the groundwater resource. They are the nursery areas for a great number of wildlife and aquatic species and serve at times as the source of valuable harvestable timber. They are unique recreational areas, high in aesthetic value, that contain delicate and irreplaceable specimens of fauna and flora and support fishing, as well as wildfowl and other hunting. (c) Freshwater wetlands support the adjacent or downstream aquatic ecosystem in addition to the complex web of life that has developed within the wetland environment. The relationship of the freshwater wetland to the subsurface environment is symbiotic, intricate, and fragile. In the tidal wetland areas the tides tend to redistribute the nutrients and sediments throughout the tidal marsh and these in turn form a substrate for the life supported by the tidal marsh. These marshes produce large quantities of plant life that are the source of much of the organic matter consumed by shellfish and other aquatic life in associated estuaries. (d) Protection of wetland areas requires the proper placement and management of any construction activities and controls of nonprofit sources to prevent disturbing significantly the terrain and impairing the quality of the wetland area. Alteration in quantity or quality of the natural flow of water, which nourishes the ecosystem, should be minimized. The addition of harmful waste waters or nutrients contained in such waters should be kept below a level that will alter the natural, physical, chemical, or biological integrity of the wetland area and that will insure no significant increase in nuisance organisms through biostimulation. POLICY (a) In its decision processes, it shall be the Agency's policy to give particular cognizance and consideration to any proposal that has the potential to damage wetlands, to recognize the irreplaceable value and man's dependence on them to maintain an environment acceptable to society, and to preserve and protect them from damaging misuses. (b) It shall be the Agency's policy to minimize alterations in the quantity or quality of the natural flow of water that nourishes wetlands and to protect wetlands from adverse dredging or filling practices. Solid waste management practices, siltation or the addition of pesticides, salts, or toxic materials arising from nonpoint source wastes and through construction activities, and to prevent violation of applicable water quality standards from such environmental insults. (c) In compliance with the National Environmental Policy Act of 1969, it shall be the policy of this Agency not to grant Federal funds for the construction of municipal waste water treatment facilities or other waste-treatment-associated appurtenances which may interfere with the existing wetland ecosystem except where no other alternative of lesser environmental damage is found to be feasible. In the application for such Federal funds where there is reason to believe that wetlands will be damaged, an assessment will be requested from the applicant that delineates the various alternatives that have been investigated for the control or treatment of the waste water, including the reasons for rejecting those alternatives not used. A cost-benefit appraisal should be included where appropriate. (d) To promote the most environmentally protective measures, it shall be the EPA policy to advise those applicants who install waste treatment facilities under a Federal grant program or as a result of a Federal permit that the selection of the most environmentally protective alternative should be made. The Department of the Interior will be consulted to aid in the determination of the probable impact of the pollution abatement program on the pertinent fish and wildlife resources of wetlands. In the event of projected significant adverse environmental impact, a public hearing on the wetlands issue may be held to aid in the selection of the most appropriate action, and EPA may recommend against the issuance of a section 10 Corps of Engineers permit. IMPLEMENTATION EPA will apply this policy to the extent of its authorities in conducting all program activities, including regulatory activities, research, development and demonstration, technical assistance control of pollution from Federal institutions, and the administration of the construction and demonstrating grants, State program grants, and planning grants programs. WILLIAM D. RUCKELSHAUS, Administrator. CONSERVATION AND NATURAL RESOURCES SUBCOMMITTEE, Mr. WILLIAM D. RUCKELSHAUS, HOUSE OF REPRESENTATIVES, Washington, D.C., March 20, 1973. DEAR MR. RUCKELSHAUS: We commend you for making public on March 14 your Decision Statement No. 4 establishing EPA's policy to protect the Nation's wetlands. The policy statement is certainly welcome, and should be helpful in preserving these valuable and irreplaceable wetlands which increasingly seem to be the prey of all types of development. As I indicated in my statement today at our Subcommittee's hearings on channelization, copies of your announcement and policy statement will be printed in the subcommittee's hearing record. A copy of my statement is enclosed for your information. Your press release indicates that the new EPA policy will be published “soon in the Federal Register," as, of course, is required by 5 USC 552(a) (1) (D). I would appreciate your advising us when this important policy statement will be published in the Federal Register. Chairman, Conservation and Natural Resources Subcommittee, Committee on Government Operations, House of Representatives, Washington, D.C. DEAR MR. CHAIRMAN: Thank you for your letter of March 20, 1973, regarding our recently approved policy to protect the Nation's wetlands. We believe that this policy will be of valuable assistance in preserving these irreplaceable resources. Your comments commending our wetlands policy in the introductory remarks to your recent stream channelization hearings are appreciated. As Dr. Greenfield indicated in his testimony, we are deeply concerned about the adverse environmental effects of channelization and we are taking action to increase our effectiveness in reviewing environmental impact statements prepared for channelization projects. We are currently circulating the policy for comment among the other interested Federal agencies and it will be published in the Federal Register as soon as we have the benefit of these comments. We appreciate your interest and support in environmental matters. Please do not hesitate to contact us if we can be of any further assistance. Sincerely yours, WILLIAM D. RUCKELSHAUS, Administrator. PART B.-CORRESPONDENCE WITH CORPS OF ENGINEERS RE: CORPS' WETLANDS REGULATIONS [NOTE. For earlier correspondence re these regulations, see subcommittee hearings entitled "Mercury Pollution and Enforcement of the Refuse Act of 1899" (Part 3), pp. 1411-1426.] HOUSE OF REPRESENTATIVES, CONSERVATION AND NATURAL RESOURCES SUBCOMMITTEE, DEAR SECRETARY FROEHLKE: On January 19, 1973, Mr. Charles R. Ford of the Office of the Under Secretary of the Army replied to our letter of January 5 concerning several long-delayed Corps of Engineers proposed regulations which have not yet been published. Mr. Ford noted: I. "As you point out, the Department of the Army had expected to publish the regulation in the Federal Register for comment by autumn of last year. However, these expectations were overtaken by the enactment of the Federal Water Pol lution Control Act Amendments of 1972, P.L. 92-500; the Marine Protection, Research and Sanctuaries Act of 1972, P.L. 92-532; and the Coastal Zone Management Act, P.L. 92-583. "The Chief of Engineers advises me that his analysis of these recent enactments has been completed insofar as they impact on the proposed revision of his regulation, and extensive revision of the preliminary draft is necessary. For example, Section 404 of Title IV, Section 2 of P.L. 92-500 has new procedural requirements that affect all parts of the regulation. The Chief of Engineers has his staff preparing a new revision of the regulation and has given the matter high priority." We recognize that the law is constantly changing and that the corps' regulations should reflect those changes. But the statutes referred to by Mr. Ford were all enacted in October 1972, more than 3 months ago; yet, the various regulations are still not published. One consequence of the delay relates directly to a recommendation by our committee in its report of August 10, 1972 (H. Rept. 92–1323), entitled "Increasing Protection for Our Waters, Wetlands and Shorelines: The Corps of Engineers." That report noted that the corps' present "cumbersome" method of indirect referrals of violations of section 10 of the River and Harbor Act of 1899 has resulted in "irreparable harm" to valuable wetlands resources. The commitee's report therefore recommended that the referral procedure be revised to allow District Engineers to contact U.S. Attorneys directly. In response to this recommendation, the Chief of Engineers, General Clarke, wrote to us on September 16, 1972, as follows: "When the Section 10 regulation is finally published, Corps Districts will have sufficient guidance to assure uniform enforcement of Corps statutes and maximum protection of the nation's resources. This, in furtherance of the position taken in my letter to you dated 18 July 1972, will permit consummation of an agreement with the Department of Justice for direct referral of cases by Division and District Engineers to United States Attorneys." (Italic supplied.) We continue to receive complaints from the Interior Department, from citizens, and even from field personnel of the Corps of Engineers, that the corps' referral procedure is not working effectively and efficiently. But as General Clarke noted, this procedure will not be revised until the regulations, now being held up by the corps and OMB, are "finally published." This is certainly a frustrating situation that is detrimental to the public interest. II. Enclosed with Mr. Ford's letter was a copy of two pages, entitled "Preliminary Draft Revised Wetlands Policy", dated "30 Aug 1972", and containing paragraph 6.c(1) through (5) of Regulation 1145-2-303. The copy sent to us is obviously incomplete since it refers to provisions in subparagraphs 5d-e and 5f which were not attached thereto. We are distressed that the proposed draft regulations appear to have been largely emasculated and rendered an empty shell of the draft sent to the Office of Management and Budget in January 1972, and published in the Hearings of December 10 & 11, 1972 entitled "Protecting America's Estuaries: Puget Sound and the Straits of Georgia and Juan de Fuca," pp. 702–705. The January 1972 draft established a presumption that "wetlands constitute a valuable and productive resource the preservation of which is in the public interest," unless it is "clearly shown otherwise." That draft stated: "(b) The purpose of a proposed structure or work will be examined with a view towards avoiding siting in wetland areas. If that purpose is not dependent on waterfront access, or can be satisfied by the use of an alternate site or by use of existing public facilities, the application will ordinarily not be granted. The applicant will be required to demonstrate that a feasible alternate site does not exist; the inability to finance or acquire an alternate site is not a factor in the determination of feasibility." (Italic supplied.) This key provision in the January 1972 draft is consistent with Section 2.B. (2) a. of the Fish and Wildlife Service's recently developed and circulated “Navigable Waters Handbook" which states (p. 5): |