Implementation of the Exemption under Clean Water Act Section 404(f)(1)(E) for Construction and Maintenance of Forest Roads
Nicholas T. Domer
Since the 1970's there has been a growth of interest and concern regarding the implementation of environmental policy. This phase of policy development has attracted attention for good reason, particularly because the success of the implementation phase determines the success of the law that has been passed. Implementation of Section 404 forest road exemption policy under the Clean Water Act is the subject of this study.
This study investigated methods used by the Army Corps of Engineers (Corps) to implement the Section 404 forest road exemption to determine which methods are successful, why they are successful, and what can be done to ensure successful implementation. A review of government documents and other forms of literature regarding the Section 404 forest road exemption was also conducted to determine if the exemption is being interpreted in accordance with what Congress intended.
Results indicate that initial interpretations of Section 404 were contrary to what Congress intended when it added Section 404 authority to the Federal Water Pollution Control Act. Recent guidance documents drafted by several Corps Regulatory Districts indicate, however, that the Corps is interpreting the associated Section 404 forest road exemption consistently among districts and in accordance with what Congress intended.
Survey responses and interviews with Corps officials indicate that the Corps plays a limited role in ensuring compliance with Section 404 forest road exemption requirements, particularly due to limited resources and personnel. As a result, some Corps districts are using information dissemination and reliance on other state, federal, and local agencies to ensure compliance with forest road exemption requirements.
The use and dissemination of information and reliance on other agencies appear to be effective methods of implementation for a program with limited available resources and personnel. These methods should be used together, in combination with other practicable methods of implementation such as follow-up reviews of known forest road projects, investigating reported violation, and keeping a watchful eye, to help ensure compliance with the Section 404 forest road exemption requirements.