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Section 404 of Clean Water Act: Program Questions and Overview
Was Section 404 Program Intended to Regulate Wetlands?
Questions about which and how wetlands are regulated have been widely
discussed and debated over the years. This fact sheet explains what the
U.S. Army Corps of Engineers, Congress, and the U.S. Supreme Court have
said about these topics.
Section 404 Program History
In 1972, Congress passed the Federal Water Pollution Control Act Amendments,
also known as the Clean Water Act, "to restore and maintain the chemical,
physical, and biological integrity" of the Nation's waters. The
Act defined "navigable waters" as "waters of the United
States." The legislative history made plain that Congress intended
the broadest possible Federal jurisdiction, expanding beyond traditionally
navigable waters.
Section 404 of the Clean Water Act established a permit program regarding
discharges of dredged and fill material. In 1974, when the Corps issued
regulations to implement the Section 404 program, they limited the program's
jurisdiction to traditionally navigable waters, including adjacent wetlands,
excluding many small waterways and most wetlands.
In 1975, a Federal district court directed the Corps to revise and expand
its regulations to be consistent with Congressional intent. In response,
the Corps issued interim final regulations to include waters that are
not adjacent to navigable waters ("isolated waters") in the
program's jurisdiction.
In 1977, the Corps issued final regulations and explicitly included "isolated
wetlands and lakes, intermittent streams, prairie potholes, and other
waters that are not part of a tributary system to interstate waters or
to navigable waters of the United States, the degradation or destruction
of which could affect interstate commerce." The definition promulgated
in 1977 is substantially the same as the one in effect today.
What Has Congress Said?
When Congress amended the Act in 1977, it was aware of the Corps'
recent assertion of jurisdiction over wetlands. In fact, this issue was
extensively debated. In the end, Congress rejected attempts to narrow
the scope of that jurisdiction, in large part because of concern that
to do so would unduly hamper protection of wetlands. Other 1977 amendments,
such as the Section 404(f) exemptions, general permitting authority, and
the provision for States to assume the 404 program for some waters, responded
to concerns regarding the scope of jurisdiction. In allowing States to
assume the 404 program for some waters, Congress made specific reference
to wetlands in the Act itself.
What Has the Supreme Court Said?
Regarding the issue of jurisdiction for wetlands adjacent to rivers,
lakes, streams, estuaries, etc., the Supreme Court has unanimously held
that the Corps acted reasonably in interpreting the Act's geographic
jurisdiction to extend to wetlands adjacent to other Awaters of the U.S.,@
even if those wetlands are saturated only by ground water sources (as
opposed to surface water flooding). However, the Supreme Court has not
yet ruled on the issue of non-adjacent, isolated wetland jurisdiction.
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