Laserfiche WebLink
<br />1989] <br /> <br />WATER RIGHTS PROTECTION <br /> <br />8 <br /> <br />Section 10 1 (g) was added to the 1977 Clean Water Act as a necessa <br />curb on the exercise of agency authority.133 <br />The 404(b)(1) guidelines are extensive in their potential applic <br />tion to permit decisions and can best be described as generalized cril <br />ria for the specification of disposal sites in the waters of the Unit, <br />States. The guidelines contain a laundry list of potential impacts I <br />suiting from fills, ranging from pollutant effects to changes in wat <br />circulation. They provide for the prohibition of the discharge <br />dredged or fill materials "if there is a practicable alternative to t: <br />proposed discharge which would have less adverse impact on ti <br />aquatic ecosystem," unless the alternative itself would have significa <br />adverse environmental consequences.134 Unless an activity is "wat <br />dependent" it is presumed that the fill should be conducted outside <br />the waters of the United States.135 Alternatives are practicable if thl <br />are available and are capable of being done, taking into account "cOl <br />existing technology, and logistics in light of overall project pu <br />poses."136 Fills are prohibited if they could cause or contribute to vi, <br />lation of water quality standards or toxic discharge prohibition <br />jeopardize an endangered species, or contribute to or cause signifiCllJ <br />degradation of the waters of the United States. 137 <br />Taken by themselves, the 404(b )(1) guidelines appear to sIX <br />doom for many water projects, particularly in light of the alternativ, <br />analysis and the antidegradation provisions of the guidelines. But tl <br />guidelines do not stand alone; their application to waterworks is fu <br />ther defined by the Corps' public interest reviewl38 and controlled t <br />section 101(g). The Corps' regulations governing permit issuance sp. <br />cifically incorporate section 10 1 (g) by reference: "Actions affectin <br />water quantities are subject to Congressional policy as stated in sectio <br />101(g) of the Clean Water Act which provides that the authority ( <br />the states to allocate water quantities shall not be superseded, abrc <br />gated, or otherwise impaired." 139 <br />We do not argue here that the 404(b)( 1) guidelines exceed admir <br />istrative authority granted under the Clean Water Act, but rather th~ <br />their application to waterworks must honor section 10 1 (g). Sectio <br />404 governs many activities other than water project constructior <br />The legislative history of the 1972 and 1977 Acts demonstrates tha <br /> <br />133. .See supra part lB. (discussing legislative history). <br />134. 40 C.F.R. ~ 230.10(0). <br />135. [d. ~ 230.10(0)(3). <br />136. [d. ~ 230.10(.)(2). <br />137. [d. ~p3O.1O(b)-.IO(c). <br />138. 33 C.F.R. ~ 320.4(0) (1988). <br />